SB 1437 Resentencing – Watson Murder DUI Ineligible

Effective January 1, 2022, Senate Bill No. 775 amended Senate Bill 1437 (codified at Penal Code § 1170.95, later renumbered as § 1172.6) so that it now provides: “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime . . . may file a petition . . . to have the petitioner’s murder . . . conviction vacated and to be resentenced on any remaining counts . . .” Penal Code § 1172.6(a).

A petition in good form must be granted, unless the trial court finds, beyond a reasonable doubt, that the petitioner is guilty of murder under current law.  Penal Code § 1172.6(a)(3), (d)(3). 

This amendment to Senate Bill 1437 raised many questions to experienced criminal defense attorneys.  What does “solely on that person’s participation in a crime” mean?  What about DUI under an implied malice theory when a person is charged with a prior DUI such that implied malice is defined as an act, the natural consequences of which are dangerous to life, is this the same thing as the natural and probable consequences doctrine?

The case of People v. Vondetrick Carr, arising in Riverside County, seems to answer these questions, at least as far as whether resentencing under SB 775 is possible in a Watson murder. People v. Watson (1981) 30 Cal. 3d 290.  The Fourth Appellate District Court published its opinion on the issue on April 7, 2023.

As described by the appellate court, in 1998, Mr. Carr was arrested for speeding and driving recklessly in a school zone when children were present.

In 1999, while driving under the influence of alcohol, Mr. Carr hit a fence and the gated access control box.  He was also seen driving without his headlights on and running a stop sign at 45 miles per hour in a residential neighborhood.  He was arrested.

After the party, Mr. Carr drove found children home, including his own son.  None of the children were wearing seat belts.  An adult friend was in the front passenger seat.

After exiting the parking lot of the park, he began driving on surface streets at 70 to 100 miles per hour.  At times, he crossed the double-yellow line and drove on the wrong side of the street.  The adult friend repeatedly told him to slow down because there were children in the car.

Mr. Carr then ran a red light, then another.  He started flashing his lights before trying to run a third red light, but t-boned a pickup truck in the intersection.  One of the children in the car, age 13, was killed.  All occupants of Mr. Carr’s car were injured.

At the trial for murder, it was shown that Mr. Carr had a blood alcohol content (BAC) of 0.11%.  He was convicted of second degree murder and sentenced to 51 years and four months to life in prison.

In 2021, Mr. Carr filed a petition under Penal Code § 1170.95 (now renumbered as 1172.6) for resentencing, arguing that the jury’s finding that he drove with implied malice under Penal Code § 187(a) qualified him for resentencing under the amendments to 1170.95 under the new felony murder rule, as amended by SB 775, that allows resentencing for imputing malice “during the commission of a felony inherently dangerous to human life.”

In other words, he argued that he was convicted of murder under the natural and probable consequences doctrine because the definition of implied malice is the commission of an act, the natural consequences of which are dangerous to life, resulting in the death of another.

The trial court denied the petition, finding there was no natural and probable consequences doctrine jury instruction, there was no aiding and abetting instruction, there was no felony murder instruction and that Mr. Carr was the “actual slayer,” so his case did not fall under the new felony murder rule permitting such resentencing.

The Fourth Appellate District agreed, putting it more succinctly that implied malice is not imputed malice.  Watson, supra, stands for the proposition that implied malice may be inferred from a defendant’s conduct before, during and after driving drunk – not imputed from the bare fact of driving drunk.  “Petitioner’s contrary argument is an artificial concoction that takes the words ‘natural consequences’ and/or ‘natural and probable consequences’ out of their proper legal contexts and dumps them all together into a confused semantic stew.”

The appellate court therefore found that the trial court correctly ruled that Mr. Carr was not eligible for relief under Penal Code § 1172.6.