NEW Bill Make Significant Amendments to Penal Code section 188 and 189 Accomplice Liability for Felony Murder (SB-1437)

On September 30, 2018, Governor Jerry Brown approved Senate Bill No. 1437 which made important amendments to Penal Code sections 188 and 189. [1] Newly amended Penal Code sections 188 and 189 are set to take effect on January 1, 2019.

When enacting amendments to the existing law on accomplice liability for felony murder, the California Legislature expressly declared that there is a need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides. According to the Legislature, “it is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability.” Thus, the Legislature found it necessary to amend the felony murder rule and the natural and probable consequences doctrine to ensure that “murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”

Effective on January 1, 2019, Penal Code section 188 is amended to add a subsection stating: “(3) Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.”

Existing Penal Code section 189(a) defines first degree murder, in part, as all murder “which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or former Section 288a.” SB-1437 adds subdivision (e) to Penal Code section 189.

Newly added Penal Code section 189(e), states that “a participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven:

1. The person was the actual killer

2. The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.

3. The person was a major participant in the underlying felony and acted with reckless indifference to human life.

An accomplice will be liable under the existing law regarding felony murder when the victim is a peace officer killed during the course of his or her duties and the defendant knew or reasonably should have known the victim was a police officer within the course of duty.

SB-1437 also adds Penal Code section 1170.95 to the Penal Code and permits a person convicted of felony murder or murder under a natural and probable consequence theory to file a petition with the court to have the murder conviction vacated and be resentenced under certain conditions.

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[1] Visit the following link for the full text: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1437

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