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New Felony Murder Rule Resentencing Law in California: PC 1170.95

Recently, the California legislature made major changes to California’s felony murder rule. Before these changes, California’s felony murder rule allowed murder convictions for a person who was not the actual killer of another person, or even a major participant in a killing, if that person acted as an aider and abettor to the murderer, or the murder was perpetrated by a codefendant during the commission of an inherently dangerous felony (i.e. robbery, residential burglary, kidnapping, torture, etc.). Now, a person convicted of murder as an aider and abettor to murder, as an accomplice under the felony murder, might have that murder conviction vacated (dismissed) under certain circumstances.

Do I Qualify for Resentencing Per PC 1170.95

To qualify for resentencing under California’s new felony murder rule resentencing law, the defendant / petitioner must meet all of the following requirements:

The defendant was not the actual killer of the decedent

The defendant was convicted pursuant to California’s felony murder rule, or

The defendant was convicted based on a theory of natural and probable

The defendant petitions the court for relief pursuant to PC 1170.95

Example: David loaned a car to his friend John so that John could steal from a liquor store. David does not know that John intends to use a gun to rob the liquor store. Inside the liquor store, John kills the cashier during a struggle for John’s gun. Under the felony murder rule, both David and John could be charged with murder under the felony murder rule because David acted as an aider and abettor to John’s crime; however, under new PC 1170.95, the felony murder rule would now only apply to David if David did not intend for anyone to be killed, and if it can be shown that David did not act with wanton disregard for human life when he knew that John would steal from the liquor store using David’s car.

Resentencing Per PC 1170.95: To be resentenced per PC 1170.95, the defendant must petition the court for resentencing under the new law. If the judge agrees with the defendant / petitioner, the judge will vacate the murder conviction and resentence the defendant on the target crime, if any target crime was filed by the district attorney in the defendant’s underlying case.

For example, if David requests resentencing per PC 1170.95 in the above example, and David’s petition is granted, then David’s murder conviction should be vacated (dismissed) and he should be resentenced on John’s target offense (robbery of the liquor store). This could result in many years of David's prison sentence, not to mention his criminal record could reflect a robbery conviction instead of a murder conviction.

Essentially, under PC 1170.95, when a defendant is charged with a murder, even though he or she did not actually kill a person, then he or she might be able to have that murder conviction vacated if the murder by another person was not the natural and probable consequences of the defendant’s conduct.

Natural and Probable Consequences: The natural and probable consequences of a person's act is a result that is reasonably expected to occur.

For example, if Jessica loans a gun to Steven so that Steven can commit a carjacking, and Jessica knows that Steven is going to use the gun to commit the crime, and thereafter, a person is killed by Steven during the carjacking, then Jessica is probable guilty of murder under the felony murder rule as an aider and abettor. This is because a killing is to be reasonably expected with the crime of carjacking (i.e., defendant and victim struggling over the gun and gun fires and kills victim, victim pulls a gun out in personal defense and defendant responds by shooting the victim, etc.). In other words, a death is a natural and probable consequence of using a gun to commit carjacking and Jessica should have known that fact. Therefore, under this example, Jessica would not qualify for new PC 1170.95 resentencing.

Note: PC 1170.95 is retroactive, which means it applies to person’s who have already been convicted of murder by way of the felony murder rule, or under a theory of natural and probable consequences (aider and abettor to the killing), so long as the requirements listed above apply.

Also, resentencing under PC 1170.95 applies to all defendants / petitioners who were convicted of first degree murder or second-degree murder (so long as the requirements listed above apply).

Credit for Time Served: If the defendant / petitioner is successful on his or her petition to resentence a felony murder conviction per PC 1170.95, then the defendant will be entitled to any prison credit that she already accumulated on the murder conviction. That credit will be applied to the target offense (PC 1170.95 Abbrev.). Also, if the defendant has enough prison credits to be released after resentencing, then the judge may order a parole period of three years for the defendant on the target offense.

PC 1170.95 Hearing

If the defendant / petitioner is allowed to present evidence on the issue of resentencing, then she will have to demonstrate how she was not a major participant in the underlying crime where another person was charged with murder (codefendant). New evidence might be allowed at the PC 1170.95 hearing for this purpose.

Note: A defendant who was convicted of murder on either a theory of natural and probable consequences, or based upon the felony murder rule, will not likely have presented evidence at the trial that admits he or she participated in the crime but was otherwise not a major participant. This is because the felony murder rule before the passage of PC 1170.95 would not make sentencing allowances for that type admission in court. However, with the passage of PC 1170.95, the defendant may now present evidence that she participated in a crime that lead to a killing, but that her participation did not naturally and probably lead to the killing.

Important: It’s important to discuss all of these options with a criminal defendant attorney before moving forward with a resentencing motion, especially if other appeal options have not been exhausted.

PC 1170.95 Law (Abbrev.)

PC 1170.95(a) A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

PC 1170.95(a)(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.

PC 1170.95(d)(1) Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. This deadline may be extended for good cause.

PC 1170.95(d)(2) The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.

PC 1170.95(d)(3) At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.

To learn more about California’s new PC 1170.95 law, “felony murder resentencing,” contact our criminal defense lawyers for a free consultation. Our criminal defense lawyers handle all misdemeanor and felony crimes in San Bernardino County, include serious offenses and violent offenses, such as murder, mayhem, torture, residential burglary, robbery, rape, and more. We represent clients in all San Bernardino County cities, including Redlands, Fontana, Colton, Yucaipa, Victorville, Rancho Cucamonga, Ontario, Highland, and more. Call today!


Penal Code Section 1170.95 Felony Murder Rule Resentencing: Criminal Defense Lawyers
PC 1170.95 Felony Murder Rule Resentencing in California

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