By Eric Siddall
It is hard to believe, but it is the truth; should Governor Brown sign into law SB 1437, criminals in California can no longer be punished for the natural and probable consequences of violent crimes they knowingly aided and encouraged.
SB 1437 was ostensibly introduced by Senator Skinner to abolish the application of accomplice felony murder rule in California, under the grounds that she wanted to hold the right people accountable for murder. However, the “natural and probable consequences doctrine” (NPC) operates independently of the felony murder rule but would also be repealed by SB 1437, a fact I have pointed out to the proponents of the bill on multiple occasions during the radio debates.
Yet, curiously, when Senator Skinner and proponents of SB 1437 advocated the passage of SB 1437, they never mentioned NPC or noted the legislation would abolish it, but only focused on the felony murder rule. Why? Because NPC is fact driven. It avoids the strict liability of the felony murder rule, and looks instead to the facts, the surrounding conditions, criminal culpability, and the level of criminal conduct. In other words, it holds the right people accountable. Unlike the felony murder rule, a jury must find that the victim’s death is the natural consequence of the defendant’s criminal conduct.
Instead, to advance SB 1437, proponents have claimed it only addresses the felony murder rule. They have seized upon some extreme applications of the felony murder rule to make their arguments, even if cases cited by the proponents turned out to have later been commuted by the governor. Because it is a strict liability doctrine, those cases prove the old adage that bad cases make bad law.
The idea behind felony murder is that if you, as an accomplice, share the intent to commit certain underlying violent felonies, then you are also guilty of a murder that occurs during the commission of that felony. Take robbery, for example. Three guys decide to commit a robbery. The driver and the lookout do not know that their confederate has a gun. The armed robber goes into the store and shoots and kills the shopkeeper. Everyone is guilty of murder. SB 1437 aims to abolish the criminal liability of the driver and the lookout for the murder and hold them accountable only for the robbery.
It is noteworthy that proponents have argued that even the courts have wanted to abolish the felony murder rule but were forced to follow this “barbaric” law. Tellingly, they never attribute the quote to an author; it was former Chief Justice Rose Bird, the only Chief Justice ever voted out of office because of her radical stance on criminal justice issues.
NPC doctrine is different in that it looks to the facts and circumstances of the individual case. Take the same robbery. But add some additional facts. Now you learn that the three robbers are all from the same gang. The store they are targeting is a neighborhood grocer who refuses to pay “gang taxes.” This time everyone knows about the gun and they use two cars, one as a follow-car one as the getaway car for the specific purpose of evading the police. It should be obvious to all that robbery and intimidation is the true purpose of the crime. No matter. Under California’s new law, only the shooter would be liable for the murder.
There is a false public perception that criminals consistently get off on technicalities. The reality is that state constitutional, statutory, and decisional authority – some created in direct response direct to Rose Bird – made these technicality stories into myths. SB 1437 creates an area for the legend to become a reality. Governor Brown ought to make sure that this does not happen, again.