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Is SB 1437 Barred if Plea to Malice Aforethought Murder?
In October 2012, Christopher Baker was shot to death in East Palo Alto. Evidence was gathered and presented to a grand jury that Jerry Coneal, a gang member, shot Mr. Baker.
Evidence was also presented to the grand jury that Miguel Angel Rivera, Jr., drove Mr. Coneal to the scene, was present during the shooting, and drove Mr. Coneal away from the scene.
The grand jury then indicted Mr. Rivera and Mr. Coneal with murder with the special circumstance of lying in wait and committing the crime for the benefit of a criminal street gang. Only Mr. Coneal was charged with personally discharging a firearm, causing death to another.
Brief Synopsis: A Petition for Resentencing under Penal Code § 1170.95 (Senate Bill 1437) is not barred automatically as a matter of law if defendant previously pled guilty or no contest to second degree murder “with malice aforethought” and stipulated to a factual basis for the plea. Petitioner could still make a prima facie showing of eligibility for relief under SB 1437 by identifying a scenario in which he or she was guilty of murder only under a now invalid theory, even if the record of conviction does not demonstrate that the indictment rested on that scenario.
Mr. Rivera eventually entered into a plea bargain wherein he pled no contest to second-degree murder and admitted a prior strike for burglary in exchange for dismissal of the special circumstance allegations and other enhancements. In 2017, Judge Lisa Novak sentenced Mr. Rivera to 35 years to life in prison (fifteen years to life, doubled for the prior strike, plus five years for the prior serious felony).
When the no contest plea was taken, the prosecutor specified on the record that the conviction was for second degree murder “with malice aforethought.” Rivera’s attorney also stipulated to a factual basis for the plea, based on the grand jury transcripts.
On January 1, 2019, Senate Bill 1437 became effective, amending murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under Penal Code § 188 to require that the principal acted with malice aforethought. Now, “malice shall not be imputed to a person solely on his or her participation in a crime” (Penal Code § 188(a)(3)).
The bill also amended Penal Code § 189 to provide that a person who was not the actual killer and did not have an intent to kill is not liable for felony murder unless she or she was “a major participant in the underlying felony and acted with reckless indifference to human life,” as described in 190.2(d), or the victim was a peace officer performing his or her duties (Penal Code § 189(e) and (f).
Court of Appeal First Appellate District San FranciscoSenate Bill also enacted Penal Code § 1170.95, which authorizes “a person convicted of felony murder or murder under a natural and probable consequences theory to petition the court that sentenced the petitioner, to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts.
Mr. Rivera filed a petition for relief under § 1170.95 and the trial court appointed counsel for him.
After receiving briefing from the parties, Judge Novak denied Mr. Rivera’s petition on the basis that Rivera failed to make a prima facie showing of eligibility for relief. The judge specified that since Rivera entered a plea to second degree murder with malice and nothing in the record suggested that the murder was “anything other than an intentional killing in which he harbored such malice.”
Mr. Rivera then appealed this ruling to First Appellate District in San Francisco, arguing that Judge Novak erred in concluding that his plea precluded his eligibility for resentencing as a matter of law.
The First Appellate District agreed with Rivera, holding that a defendant that entered a plea to murder “with malice aforethought” is not categorically incapable of making a prima facie showing of eligibility for relief under 1170.95 because such a plea is not necessarily an admission that the crime was committed with actual malice.
The First Appellate District further held that a defendant who stipulated to a factual basis for the plea based on the grand jury transcript may make a prima facie showing of eligibility for relief under SB 1437 by identifying a scenario in which he or she was guilty of murder only under a now invalid theory, even if the record of conviction does not demonstrate that the indictment rested on that scenario.
We present this summary because we think it is significant in showing two things. First, a defendant who is potentially eligible for 1437 relief must appreciate and recognize that a judge is often inclined to deny eligibility if there is a factual basis for the plea that specifies defendant acted with malice aforethought (or, we would anticipate, “reckless indifference for human life”), so counsel must be deliberate in explaining how such a basis may rest upon a now invalid theory of murder (felony murder or natural and probable consequences) if this is so.
Second, this summary restores one’s faith in our appellate courts as stepping outside the stereotype of “rubber stamping” lower court rulings when the crimes deal with horrendous crimes and truly looking deep into the law and the facts, which this appellate court did.
In conclusion, however, we sadly believe that if Mr. Rivera drove the actual killer to the scene and back, he truly may have been a major participant who acted with reckless indifference to human life or that he shared the intent to kill, which may ultimately lead to a denial of his request for resentencing.
The citation for the First Appellate District Court ruling discussed above is People v. Miguel Angel Rivera (1st App. Dist., 2021) 62 Cal. App. 5th 217, 276 Cal. Rptr. 3d 390.
For more information about resentencing under Penal Code § 1170.95 (SB 1437), please click on the following articles:
