Criminal Justice in CA … Oh How the Times they are a Changin’ (Part II)

Senate Bill 10:  Eliminates cash bail system starting October 2019

Cash is no longer King.  Penal Code section 1269/1275 motions for high bail and examination of the source of bail for our drug dealers will be obsolete.  In an effort to address the disparity between those that can afford bail and those that cannot, our Governor has abolished cash bail, leaving the judge with the choice to release a defendant or hold them without bail.

Here’s how it is supposed to work: If a suspect commits a misdemeanor other than Domestic Violence, the suspect must be cited and released, or if booked, released, within 12 hours.  If it is a Domestic Violence charge or a felony, Pretrial Services performs a risk assessment.  If suspect is deemed low risk or medium risk, Pretrial Services releases them (except DV) pre-arraignment (so no judge or attorneys involved).  Note that no District Attorney has an opportunity to make an argument to the Court, so if Pretrial Services miss something, the suspect is already released by the time a DA is involved.  If not released prior to arraignment, then the Judge reviews at arraignment.  District Attorneys can file motions to ask that Defendant be held in custody during the pendency of their cases.  It is presumed under this new law that anyone arrested for a violent felony (enumerated by statute) or has been convicted of a violent felony within 5 years, stays in custody for the pendency of their case.  No cash bail is set.

What does this mean for you? Don’t be surprised if you immediately see the person you arrested yesterday on the street today unless you arrested them for robbery, something with a gang enhancement, sexual assault or murder!  Also expect your cases to take a long time to make their way through the system… people out of custody like to stay out of custody!

**This law appears to be in trouble.  The Bail lobby may have enough signatures to get a referendum on the ballot to overturn this new law, delaying its implementation until 2020.

Senate Bill 1437:  Accomplice liability for felony murder

I recently visited San Quentin and met many a felony-murderer.  One fellow serving life under the felony murder rule told me about his crime.  Mr. Inmate had a friend who dealt drugs.  He had other nefarious friends that wanted to rob his drug dealing friend.  He placed the call to get his drug dealing friend to meet up with the nefarious fellows, knowing his friend would be robbed.  Some friend, right?!  Well, his drug dealing friend was actually murdered during the robbery.  Mr. Inmate was tried and convicted for the murder under the felony-murder rule, even though he was not at the scene of the actual murder and believed his friend would only be robbed.

Prior to this new legislation, every participant in the commission of a dangerous felony that resulted in death was guilty of murder under the felony murder rule.  No further showing of malice was required.  The degree of murder, first or second, depended on among other things, the underlying felony.  If the murder was committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, was  murder of the first degree.  Any murder occurring during the commission of an underlying felony that was inherently dangerous constituted murder in the second degree.

This applied not only to the actual murderer, but also applied to a participant who was not the actual killer, but who, with reckless indifference to human life and as a major participant, aided or abetted in the commission of one of those specified felonies above.  The most common way this has played out is through the doctrine of natural and probable consequences. For example, a couple of gang members go to rob rival gang members.  During the robbery, one of the gang members shoots one of the rival gang members, killing him.  We as prosecutors have successfully argued that because gangsters are in the business of killing rival gang members, that although the original plan was to simply rob the rival gang members, it was a natural and probable consequence that under these circumstances someone would get killed.  Thus, we have successfully obtained murder convictions not only on the actual shooter, but the other participants of the robbery under the felony murder rule and theory of natural and probable consequences.

The new legislation eliminates the theory of natural and probable consequences in the context of murder charges.  To prove felony murder under the new legislation, it must be proved that defendant was 1) the actual killer, 2) aided, abetted or encouraged the murder itself, or 3) was a major participant in the underlying felony acting with reckless indifference to human life.  So, the getaway driver in a home invasion robbery where someone dies will now be very difficult to prosecute for felony murder unless we can prove he had a role in planning the underlying crime, or supplied the lethal weapons, or perhaps knew one of his co-participants had previously killed someone during a robbery.  We will need this type of evidence to show he was a major participant and acted with reckless indifference.

The new legislation is also retroactive, which means all those currently serving life sentences for felony murder under a theory of natural and probable consequence, or for an underlying felony no longer included in the statute, and who were not the actual killer, can petition to have their murder convictions overturned.

What does this mean for you?  Expect a lot of gang members serving life sentences to be released.  Also, the need to determine who the actual killer was in a homicide involving many participants is paramount to charging someone for the murder.  And finally, do not be surprised if you are asked to come testify on a case you put to bed 10 years ago, but the Defendant has had his conviction overturned.