SB 1437 Relief if Defendant Admits Premeditation?

In the context of resentencing under Senate Bill 1437 under the new felony murder rule, many inmates (including their attorneys) seem to file petitions for resentencing that really should never be filed.  The exact reason for this is unclear, but we suppose that some inmates realize that if the petition is denied, their sentence is not going to get any longer, so they file the petition despite knowing it does not meet 1437 requirements, hoping a judge will mistakenly grant it and resentence him or her to a lower sentence.

When such a petition is denied and the prisoner appeals an obviously correct ruling from the trial court, we look upon the appeal with curiosity.  Is there really merit in such an appeal?

The following ruling from the Fifth Appellate District seems to fit this type of resentencing request.

On April 29, 2004, Eved Vireles Romero murdered Martin Leon in a murder-for-hire wherein he was paid $3,000 by Luis Penaloza to drive another man to the home of Leon to kill him.  When Leon came out of his house, the other man in car with Romero got out and shot Leon three times with a shotgun.  The man then returned to the car and Romero drove away with the shooter, but Romero was later arrested. 

On February 6, 2007, the Stanislaus County District Attorney’s office charged Romero with first degree murder for the murder of Leon with the allegation that he acted intentionally, deliberately and with premeditation with the special circumstance that the murder was committed for financial gain (Penal Code § 190.2(a)(1)) and by means of lying in wait (Penal Code § 190.2(a)(15)).  The information also charged Romero with conspiracy to commit murder (Penal Code § 182).

About eight months later, Romero entered a no contest plea to the charge of first degree murder and admitted that “during the commission of this crime, [he] acted intentionally, deliberately and with premeditation.”  The prosecutor provided the following factual basis for the plea: “[O]n the 29th of April of 2004, [Romero] agreed to drive a person over to the home of Martin Leon so that the other person could shoot Mr. Leon to death.  [Romero] knew that the shooting was planned, that . . . it was planned that Mr. Leon would be killed.  [Romero] did so in return for the promise of money.” 

Defense counsel for Romero also stipulated that the preliminary examination transcript provided a factual basis for the plea.

Thereafter, the prosecutor moved to strike the special circumstance allegations and a firearm allegation as to count 1 (the first degree murder allegation) and moved to dismiss count 2, the conspiracy allegation.  Romero was then sentenced to 25 years to life in state prison.

Effective January 1, 2019, the Legislature passed Senate Bill 1437 “to amend the felony murder rule and the natural and probable consequences doctrine . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” 

In November 2019, Romero, in pro per, filed a petition for writ of habeas corpus requesting relief under Senate Bill No. 1437.

In less than two weeks, the trial court summarily denied the petition, stating: “Petitioner was convicted of murder but the court file reflects that the Petitioner was not charged nor convicted under a theory of felony murder of any degree or a theory of natural and probable consequences. . . . Petitioner was charged with premeditated first degree murder and conspiracy to commit murder. . . Petitioner admitted the murder was premeditated, deliberate and intentional. . .”  On that basis, the Stanislaus County judge (Dawna Reeves) determined that Romero was not entitled to relief as a matter of law and had failed to state a prima facie claim.

On appeal to the Fifth Appellate District Court in Fresno, Romero argued that the trial court judge erred in summarily denying his petition for resentencing.

The Fifth Appellate District disagreed because Romero since he entered a plea of no contest to the offense of first degree murder and admitted the allegation that he “acted intentionally, deliberately and with premeditation” in the commission of the offense.  “By admitting this allegation, petitioner admitted facts necessary to sustain his murder conviction under the law as amended by Senate Bill No. 1437.”

Romero asserted that his admission was merely a “stray comment” that cannot establish his ineligibility for resentencing. 

“Petitioner is incorrect” was the response of the Fifth Circuit. “This was not a stray comment he made in passing during a plea hearing.  Rather, it was a binding admission to a charged enhancement allegation, made pursuant to a negotiated plea.

Moreover, his admission to intentional, deliberate and premeditated murder established that he acted with actual malice sufficient to sustain the murder conviction under the law as amended by Senate Bill 1437.  The petition was properly denied, held the Fifth Circuit.

The citation for the Fifth Appellate District Court ruling discussed above is People v. Eved Vireles Romero (5th App. Dist., 2022) 80 Cal. App. 5th 145,  Cal. Rptr. 3d

For more information about Senate Bill 1437 and resentencing under the new felony murder rule in California, please click on the following articles: