When it came to challenging a controversial felony murder bill that went into effect Jan. 1, 2019, Southern California prosecutors took a harder line than many of their counterparts in the rest of the state. But since November, when the 4th District Court of Appeal published two opinions affirming the validity of SB 1437, the state's largest local prosecutor's office has stopped disputing the bill altogether.
"Two recent Court of Appeal cases have upheld the constitutionality of SB 1437 on all grounds," Chief Deputy District Attorney Joseph Esposito wrote in a Dec. 13 memorandum addressed to DA personnel in Los Angeles County DA Jackie Lacey's office. "In light of these holdings, and effective immediately, deputies shall no longer challenge the constitutionality of SB 1437 in the superior court."
Before SB 1437 was enacted, California's felony murder law allowed defendants to be convicted of first-degree murder if they commit or attempt to commit a qualifying felony -- including arson, rape, carjacking, robbery, burglary, mayhem or kidnapping -- and another person dies as a result.
SB 1437 changed that rule, so suspects could no longer be charged with first-degree murder in such scenarios unless they meet one of three criteria: They were the actual killer; they were not the actual killer but had the intent to murder someone and helped the actual killer do so; or they were a major participant in one of the qualifying, non-murder felonies and also "acted with reckless indifference to human life."
The bill applied retroactively, so prisoners who had been convicted under a broader definition of felony murder could seek resentencing and have their previous convictions vacated.
Earlier this year, when prisoners applied for resentencing under SB 1437, LA prosecutors responded by challenging the legitimacy of the bill itself.
People v. Michael Tirpak, BA097152 (L.A. Super. Ct., filed Jun. 15, 1994) was one such case. Tirpak spent 25 years in prison and was convicted of first degree murder in 1996, when he allegedly served as a getaway driver in an attempted robbery that resulted in a man's death. According to the Loyola Project for the Innocent, which helped Tirpak file his petition for resentencing, Tirpak has consistently maintained he didn't know the attempted robbery was going to take place.
Lacey's office objected to Tirpak's petition on two grounds. In its opposition filings dated Jan. 2, 2019 the office wrote that by passing SB 1437, the Legislature "infringes upon the judicial power by commanding that different law apply to judgments that are already final." The filings added that lawmakers encroached "upon the governor's pardon and commutation power by commanding the courts to vacate lawful criminal convictions."
In February, the trial court found the prosecutors' accusations about SB 1437 wrong and ruled in favor of Tirpak, making him the first person in LA County to receive retroactive relief from the bill and be released from prison, according to the Loyola Project.
But Southern California prosecutors continued to question the constitutionality of the bill over the course of the year, their efforts culminating in two cases now pending before the state Supreme Court.
Those cases are People v. Superior Court (Gooden), D075787 (Cal. App. 4th Dist. Nov 19, 2019) and People v. Lamoureux, D075794 (Cal. App. 4th Dist. Nov 19, 2019). Those published opinions were cited by Chief Trial Deputy Esposito in his memorandum to LA county's prosecutors.
The 4th District Court of Appeal affirmed the constitutionality of SB 1437 in a 2-1 split in both cases. In People v. Gooden, which consolidated two cases, San Diego prosecutors argued the bill violated the terms of Proposition 7 and Proposition 115. The two propositions respectively increased the sentences for first and second degree murder to their current levels; and added trainwrecking, kidnapping, and sexual crimes to the list of qualifying felony murder offenses. In People v. Lamoureux, Riverside prosecutors said the bill violated Proposition 7, Proposition 115, the separation of powers doctrine, and Marsy's Law, which expanded the rights of victims when it was enacted in 2008.
Prosecutors asked the Supreme Court to review People v. Superior Court (Gooden) on Dec. 18, and People v. Lamoureux on Dec. 26. Referencing Esposito's memorandum, Jean Guccione, a spokesperson for the LA DA's office, wrote in an email Monday, "The policy was changed earlier this month based on recent California appellate court opinions. If the California Supreme Court rules differently, the office would re-evaluate the policy in light of that decision."
In both People v. Superior Court (Gooden) and People v. Lamoureux, Attorney General Xavier Becerra filed amicus curiae briefs on behalf of the defendants.
John O'Connell, a San Diego County deputy public defender who argued at the trial level on behalf of Allen Gooden and Marty Dominguez, the defendants represented in the two cases consolidated in People v. Superior Court (Gooden), noted attorney generals do not typically side against local prosecutors. The rift, O'Connell added, might be due to the fact DAs are elected. "They're individu¬¬¬¬¬¬als, so each DA is going to have a different opinion," he said. Referencing SB 1437 in particular, he added, "In some other counties, the DAs are not fighting this."
Tanya Sierra, a spokesperson for San Diego County DA Summer Stephan, declined to provide comment, writing on Monday about People v. Superior Court (Gooden), "We're currently reviewing the court's decision."
Private defense attorneys confirmed San Francisco is one of the counties where prosecutors are taking a softer approach to SB 1437. Kristin Hucek, a commercial litigator at Keker, Van Nest & Peters LLP who represented several prisoners impacted by SB 1437 this year, said in an interview, "I think most of the opposition that we've encountered in San Francisco has been the application of the law to the facts of [a] particular case, and whether our clients qualify for relief under the new statute."
"I don't believe we've faced many constitutional challenges in San Francisco," Hucek added. "Most of the challenges have been coming from other counties."
Maya Perelman, another commercial litigator at the same firm, attributed the approach of San Francisco prosecutors to the county's former DA, who is running against Lacey in next year's Los Angeles elections. "Following the lead of George Gascon, who was the district attorney in San Francisco, the prosecutors in San Francisco have taken the position that the law is constitutional," Perelman said.
Noting she has been facing a more assertive challenge from prosecutors in a case she is working on in San Bernardino, Perelman added, "Courts in Southern California in particular have largely taken the position that the law is unconstitutional."
Despite working in Northern California, and despite the 4th District's rulings on People v. Superior Court (Gooden) and People v. Lamoureux, which Perelman referred to as "a huge victory" for SB 1437, the attorney maintained cases involving the bill can be challenging to navigate -- particularly when it comes to deciding how its stipulations should be applied.
This issue is salient in People v. Roderick Thomas, A142916 (Cal. App. 1st Dist. Aug 14, 2014). In the case, the defendant was caught in the middle of an armed burglary at his marijuana dealer's house. To avoid getting shot, the defendant said, he ran out of a garage door even though opening the door technically facilitated the burglary, and another person in the house was shot and killed by the burglars. A jury found the defendant guilty of burglary and first degree murder under the felony murder rule, and he received a sentence of 25 years to life in prison. In 2016, the California Court of Appeal reversed the jury's verdict, but the defendant pleaded guilty to voluntary manslaughter to avoid the possibility of a life sentence if another jury convicted him of first degree murder, under the felony murder law.
Perelman, who helped file the defendant's petition for resentencing under SB 1437, said because he pleaded guilty to voluntary manslaughter instead of felony murder, one judge has said his case is not covered by the bill.
"My position is that SB 1437 allows a person who was convicted of felony murder, or who accepted a plea to avoid a felony murder conviction, to file a petition to have his conviction vacated," said Perelman. "It allows people who took a plea in lieu of going to trial on a felony murder charge to seek relief under the statute."
Over the past year, Keker, Van Nest & Peters LLP has taken on numerous SB 1437 cases on a pro bono basis from the San Francisco public defender's office. "I reached out near the end of 2018, and it coincided with this flood of new cases that were coming up because of the change in the law," Perelman said.
In San Diego, the demand is similarly strong, said O'Connell. The public defender is reviewing a list of homicide cases where the defendants are in prison, trying to find those who would qualify for relief under SB 1437. But there are also "people in prison filing their own petitions," O'Connell said. "We've been inundated."