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SB 1437 Petition Denied, Major Participation Found
In a Nutshell: Not all petitions for recall and resentencing under Senate Bill 1437 (at Penal Code § 1172.6) prevail after the 2015 and 2016 rulings in Banks and Clark, as the following case summary from the First Appellate District exemplifies.
In 2013, a Contra Costa jury found Kiara Price guilty of first degree murder and found true the felony-murder special-circumstance allegation that the murder was committed while Price was participating in a robbery and either (1) she was the actual killer; or (2) she aided the murder with the intent to kill; or (3) she acted with reckless inference to human life and was a major participant in the robbery (see Penal Code § 190.2).
The evidence at trial revealed that in 2009, Price, then age 20, along with two friends, Kendra Fells and Teareney Brown participated in a robbery of 22-year-old Benjamin Merrill during which one of them shot and killed him.
Fells, the owner of the gun used in the killing, entered a plea agreement for a 15-year determinate sentence in exchange for testifying against Price. According to her testimony and other evidence at trial, Price and Brown stopped at the house where Fells stayed with her boyfriend in Pittsburg, California, and awakened Fells, who then showed Price a revolver Fells had recently purchased. Price and Brown then left in a car belonging to a friend and drove to San Francisco.
Sometime later, they returned to Pittsburg with a very intoxicated Benjamin Merrill in tow and went to the home of Fells’ friend, Felicia Edosa. Price went inside, sporting an iPhone Fells and her girlfriend had not seen her with before and took Fells’ gun from a drawer in the bedroom and put it in her jacket.
Price and Fells got into a car and, with Teareney Brown, drove to a dimly lit park at about 3:00 a.m. Merrill got out of the car to urinate in the bushes. The women also got out of the car. After Merrill finished urinating, Ms. Brown robbed him of his wallet. Price believed he had more money to take, but Merrill said he did not.
The iPhone was used by Price shortly after the robbery, but Brown changed the service on Merrill’s phone and then Brown and Fells began using it.
The morning after the incident, Fells received a call from Price asking if she was alright. Fells chastised Price for shooting Merrill “when it don’t need to b did” and Price texted back, using Merrill’s phone, “it need it 2 b did regardless” and “Jus on how it done n-a I been doin did shit I kno wut I was doin.”
After Price and Brown were arrested, the two talked about being worried “them 2 get us on some premadated shit!”
Court of Appeal First Appellate District San FranciscoAfter her conviction, the judge sentenced Price to life without parole as required by the special circumstance stature (Penal Code § 1902.).
In 2015, the California Supreme Court issued its ruling in People v. Banks (2015) 61 Cal.4th 788 and in 2016, it issued its ruling in People v. Clark (2016) 63 Cal. 4th 522, which clarified the meaning of “major participant” and “reckless indifference for human life.”
In 2018, our Legislature adopted and the Governor signed into law Senate Bill 1437, which amended the statutory definition of murder in sections 188 and 189 to eliminate murder liability under the natural and probable consequences doctrine and to limit felony-murder liability to cases in which the felony-murder special circumstance was proven.
In 2019, Price filed her petition for recall and resentencing under Senate Bill 1437 to have her murder conviction vacated and be resentenced on any remaining counts. The district attorney opposed the petition and Price was appointed counsel. There was full briefing on the petition, but the trial court denied the petition, finding that “the record here establishes the clear viability of a prosecution for felony-murder with a special circumstance.”
Price then appealed to the First Appellate District, which affirmed, finding there was substantial evidence to support a jury finding beyond a reasonable doubt each of the three alternatives presented to the jury, including whether Price acted as a “major participant” in the robbery acting with “reckless indifference” to human life. The appellate court reasoned that Price was a major participant from the start to end of the crime insofar as she was the primary planner and decision maker in the crime, as well as supplying the gun used in the robbery.
The appellate court did not address the Price’s intent to kill or acting as the killer, as those grounds were affirmed in two prior appeals Price brought immediately after her conviction.
The citation for the First Appellate District Court ruling discussed above is People v. Kiara Price (1st App. Dist., 2021) 71 Cal. App. 5th 1128, 286 Cal. Rptr. 3d 850.
For more information about Senate Bill 1437 petitions and evaluating if defendant acted as a major participant in the murder, please click on the following articles:
