On October 5, 2021, Governor Gavin Newsom approved Senate Bill 775, expanding the retroactive resentencing provisions of the new felony murder rule to those prosecuted under the “old” felony murder rule or the natural and probable consequences doctrine and convicted of attempted murder (Penal Code §§ 664/187) and the lesser-included offenses of murder: manslaughter, both voluntary (Penal Code § 192(a)) and involuntary (Penal Code § 192(b)).
Some may characterize this bill as a long-overdue retroactive extension of Senate Bill 1437 to all convictions reached under the old felony murder rule or the natural and probable consequence doctrine wherein a death took place or an attempted murder took place.
In a Nutshell: Senate Bill 775 extends the provisions of Senate Bill 1437 resentencing to convictions for attempted murder and manslaughter (voluntary and involuntary) when reached under a felony-murder theory or the natural and probable consequences doctrine under the same conditions of not being the actual person who attempted to kill or did commit manslaughter, of not having the intent to kill and not being a major participant who acted with reckless disregard for human life.
Senate Bill 775 will allow resentencing for those convicted of attempted murder and manslaughter (both voluntary and involuntary) when that person acted as an aider and abettor when the crime was prosecuted for murder or attempted murder under the felony murder rule (the killing or attempted killing took place during an underlying felony such as a robbery) or under the natural and probable consequences doctrine unless:
1) defendant was the actual killer or actually attempted to kill;
2) defendant had the intent to kill; or
3) defendant was a major participant in the crime or acted with reckless indifference to human life (as set forth under the criteria discussed in People v. Banks (2015) 61 Cal.4th 788 (major participant) and People v. Clark (2016) 63 Cal.4th 522 (reckless indifference to human life)).
Senate Bill 775 would also not apply if the victim was a police officer acting in the course and scope of his or her official duties who defendant attempted to kill, or who died and defendant was convicted of manslaughter, either voluntary or involuntary.
As the reader may be painfully aware, many courts have ruled (prior to SB 775’s passage) that the provisions of the new felony murder rule did not apply to aiders or abettors in attempted murder (People v. Lopez (2019) 38 Cal.App.5th 1087, at 102 – 1103; People v Munoz (2019) 39 Cal.App.5th 738, 753-759) or manslaughter cases (People v. Fritz Paige (2020) 51 Cal. App. 5th 194, 264 Cal. Rptr. 3d 855 (Article 1297 on our website) and People v. Fallon Lupe Flores (2020) 44 Cal. App. 5th 585 (Article 1177 on our website).
To file the petition under SB 775, all three of the following conditions must be met to establish a prima facie case:
- A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of: a) felony murder or attempted felony murder; or b) murder or attempted murder under a natural and probable consequences doctrine;
- The petitioner was convicted of manslaughter (voluntary or involuntary) or attempted murder following a trial; and
- The petitioner could not be convicted of attempted first- or second-degree murder because of changes to section 187 or 189.
Once a prima facie case is established, the court is obligated to appoint counsel for defendant if defendant requests counsel (or defendant can retain private counsel from the start of the SB 775 process or at any time).
The court is then required to set an order to show cause hearing, also called an evidentiary hearing, why resentencing should not occur. The prosecution will then have the opportunity to argue and show beyond a reasonable doubt why defendant is ineligible for resentencing by arguing defendant would still be criminally guilty of attempted murder or manslaughter under the current law. An attempted murder conviction may survive this hearing where malice was imputed to defendant based on his or her participation in the crime.
We think this new law will significantly burden our courts as did Senate Bill 1437, but over time, it will decrease the prison population faster than it is naturally increasing. As a reminder, a person convicted of attempted murder (Penal Code §§ 664/187) is punished by life in prison with the possibility of parole, before any enhancements to the sentence are added.
A person convicted of voluntary manslaughter (Penal Code § 192(a)), for example in a sudden struggle with another person or in the heat of passion (without malice), is punished by imprisonment for three, six or eleven years before any enhancements are added.
A person convicted on involuntary manslaughter (Penal Code § 192(b)) (with conscious disregard for human life, but without malice or intent to kill) is punished by imprisonment for two, three or four years before any enhancements apply.
We should close this article by noting that a person convicted of vehicular manslaughter arising out of DUI would not be eligible for relief under Senate Bill 775 because such a person would not have been prosecuted under a felony murder rule or natural and probable consequences doctrine. That person would have been prosecuted under the “Watson Murder” theory.
Senate Bill 775 also would not apply to an attempted murder or manslaughter conviction arising under the provocative act theory, implied malice theory, lying in wait (or any premeditated murder), using a weapon of mass destruction, torturing another to death, poisoning another, or certainly where defendant was the actual killer or shooter, a major participant or acted with the intent to kill.
For more information about the offenses addressed in SB 775, please click on the following articles: