Felony murder bill addresses natural and probable consequences and promotes justice

Written by Michael Ogul © Daily Journal Corporation, Letters to the Editor, September 17, 2018, reprinted by permission.

In his column of 12 September 2018, Deputy District Attorney Eric Siddall complains that Senate Bill 1437 would not merely “abolish the application of the accomplice felony murder rule in California,” but would repeal “the ‘natural and probable consequences doctrine’”. Mr. Siddall admits that some applications of the accomplice felony murder rule have made “bad law”, but is unwilling to state a position on whether or not the rule should be abolished. Instead, he says that repealing the natural and probable consequences doctrine goes too far.

Mr. Siddall fails to acknowledge that an accomplice would still be guilty of murder under the natural and probable consequences doctrine even if the felony murder rule were abolished, despite not acting with any intent to kill, reckless indifference to human life, or any subjective awareness that their conduct risked a probability of great bodily harm or death. The accomplice would still be sentenced to life in prison for murder because under the natural and probable consequences doctrine, it doesn’t matter whether the individual defendant knew that there was any risk that their conduct could or would jeopardize anyone’s life. Consequently, even if the accomplice felony murder rule was abolished, any person who aided an enumerated felony would be sentenced to a life sentence for second degree murder if anyone died during the commission of the felony, no matter how minimal the conduct of the aider nor how remote the death was from their conduct. In other words, unless the natural and probable consequences doctrine is repealed in the context of its application to murder prosecutions, abolition of the accomplice felony murder rule would be purely illusory, merely reducing the punishment from first degree to second degree murder.

SB 1437 will insure that no person will be sentenced to life in prison unless their individual conduct is culpable enough to warrant such punishment. Even under SB 1437, if a non-killer knows that their conduct is dangerous to human life, they are still guilty of second degree murder if their confederate kills somebody. Even under SB 1437, they are still guilty of first-degree murder if the victim died during the commission of a felony and they acted with the intent to kill or as a major participant in the felony with reckless indifference to human life, or if the victim was a peace officer acting in the performance of their duties and they should have known that. Mr. Siddall posits a hypothetical where three gang members decide to commit an armed robbery of a local grocer, all three know about the gun, but two of the three wait outside while the killer shoots the grocer during the robbery. Mr. Siddall claims that only the shooter would be liable for murder under SB 1437. But that is not true. To the contrary, the prosecutor can urge a jury to find the other two guilty of murder because they knew their associate had a gun and, at the very least, knew that their conduct risked the possibility that the grocer might be shot; and that jury will be instructed that, if they find those facts to be true, those individuals are guilty of murder.

SB 1437 does what the law is supposed to do in order to protect society, punish fairly, and earn the respect of the public: calibrate punishment based on the individual culpability of the offender. We have come a long way since the felony-murder rule was created in the sixteenth century. The California Supreme Court has long criticized the “barbaric concept” of the felony murder rule. Mr. Siddall tries to deny this reality by ascribing these criticisms to the late Chief Justice Rose Bird, but he is mistaken, for it was the venerable late Justice Stanley Mosk—a former Attorney General who was not soft on crime by any means—who wrote that the felony murder rule is “‘a “barbaric” concept that has been discarded in the place of its origin’ … because ‘in almost all cases in which it is applied it is unnecessary’ and ‘it erodes the relation between criminal liability and moral culpability.’” (People v. Dillon (1983) 34 Cal.3d 441, 463, quoting from People v. Phillips (1966).64 Cal.2d 574, a decision by the California Supreme Court when it was led by Chief Justice Roger Traynor, authored by Justice Matthew Tobriner.) Governor Brown has shown great leadership in seeking to bring California into the 21st century in so many ways. We hope he will continue to do so by signing SB 1437.

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Michael Ogul is a past president of the California Public Defenders Association (2016) and a deputy public defender in Santa Clara County, where he supervises the homicide team and litigates murder cases.

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