SB 775

Senate Bill 775 (Reg. Sess. 2021-2022) is legislation which was introduced to the Senate in February of 2021. It was presented to the Governor for signature on September 17, 2021 and is awaiting his review. If he approves this measure, or if he takes no action by September 30, 2021, it will become law. This Bill proposes to amend and expand Penal Code section 1170.95 as it relates to the felony murder or natural and probable consequences theories of liability for homicide and attempted homicide crimes.

More specifically, it will expand the current state of the law to include all murders where malice is imputed due solely to participation in the crime, as well as attempted murder and manslaughter, as crimes which are eligible for relief from their conviction and sentence. This change to law will preclude persons with pending or future cases from being charged under felony murder or natural and probable consequences theories of liability for these crimes. It will further permit persons whose convictions were secured under these now-preluded classes to seek relief on direct appeal.

Additionally, and critically in the post-conviction world, these changes to law will also offer an avenue for relief to persons already convicted and sentenced under the old law to petition the court for recall and resentencing.

In this article, California criminal appeals attorney Matthew Barhoma, founder of Power Trial Lawyers, provides information on this process, including:

1. What is Senate Bill 775?
2. Who is Eligible for Post-Conviction SB 775 Relief?
3. What is the Process of Applying for Post-Conviction SB 775 Relief?
4. How an Appeals Lawyer Can Help

The law in California has been repeatedly amended as it applies to criminal liability imputed to others based upon the actions of their cohorts, specifically in regard to homicide crimes. Most recently, Senate Bill 1437 amended the law to decrease such liability in certain situations. Today, Senate Bill 775 seeks to amend and expand that reduced liability to additional groups, specifically those convicted of all murders where malice is imputed due solely to participation, as well as to those convicted of attempted murder and manslaughter.

The Current Status of the Law – Senate Bill 1437 and Penal Code § 1170.96
Current law, as previously amended in 2018 by Senate Bill 1437 (“SB 1437”), states that individuals cannot be convicted of first- or second-degree murder under a theory of “felony murder” or “murder under a natural and probable consequences theory” where such individuals (i) were not the actual killer, (ii) did not act with the intent to kill, and (iii) were not a major participant in the crime and did not act with reckless indifference to human life. It is noteworthy that the victim cannot have been a known peace offer acting in his or her duties as the same, or liability under these theories may still attach.

Further, individuals previously convicted of first- or second-degree murder under these theories – or who could have been convicted under these theories – but who could not have been convicted today, are eligible to have their cases recalled for resentencing.¹

More information regarding Senate Bill 1437/Penal Code § 1170.95 petitions can be found here.

How Senate Bill 775 Amends and Expands Current Law
Senate Bill 775 (“SB 775”) would expand SB 1437 and Penal Code section 1170.95, making it applicable to the crimes of attempted murder and manslaughter, as well as any murder where malice is imputed to another person based solely on that person’s participation in that crime, in addition to first- and second-degree murder. Persons with non-final cases falling under the changes proposed to be made by SB 775 could raise these changes to law on direct appeal.

Further, under SB 775, eligibility for recall and resentencing will be expanded to include persons previously convicted of all murders where malice is imputed solely on the basis of participation, as well as manslaughter and attempted murder convictions secured under felony murder or natural and probable consequences theories of liability. Resentencing would also be available to those who could have been convicted of these crimes under these theories had they proceeded to trial, but instead accepted a plea deal.

The following persons will be eligible for relief under SB 775 if it becomes law:

1. Persons convicted of murder, attempted murder or manslaughter under a theory of malice imputed based solely upon participation, a theory of natural and probable consequences, or a theory of felony murder;
2. Who (i) were not the actual killer, (ii) did not act with the intent to kill, and (iii) were not a major participant in the crime and did not act with reckless indifference to human life; and
3. Where the victim was not known to be, or should have been known to be, a peace offer acting in his or her duties as the same.²

Whether or not someone was a major participant is determined by assessing, among other things, the following:

1. The role of the defendant in planning the criminal enterprise resulting in death or attempted death;
2. The role the defendant had in supplying lethal weapons;
3. The awareness of the defendant of the particular dangers posed by the nature of the crime, weapons used or past conduct of other participants;
4. Whether the defendant was present at the scene of the killing, in a position to facilitate or prevent the actual death or attempted death, and whether his or her actions or inactions played a particular role in the death; and
5. What the defendant did after lethal force was used.³

Determining whether someone acted with reckless indifference to human life permits the court to consider, among other factors, the following:

1. The defendant’s knowledge of weapons, his or her use of weapons, and the number of weapons;
2. The defendant’s physical presence at the crime and opportunity to restrain the crime and/or aid the victim;
3. The duration of the felonious acts;
4. The defendant’s knowledge of his or her cohort’s likelihood of killing; and
5. The defendant’s efforts to minimize the risks of violence during the felony.⁴

If you believe you or someone you love will be eligible for relief under SB 775, contact criminal appeals attorney, Matthew Barhoma, today for a thorough case assessment.

The process for petitioning for SB 775 relief would be similar to the process for SB 1437 relief, with a few changes.

As an initial note, eligible cases which are not final can still seek relief under SB 775 on direct appeal.

The Pleadings
However, even if a case is final, SB 775, like SB 1437, offers a procedure for requesting recall and resentencing for those eligible for relief. An individual who is eligible for SB 775 relief, may file a petition in the sentencing court, requesting that the murder, attempted murder, or manslaughter conviction be vacated, and he or she be resentenced on any remaining counts.

The petition would be required to include, among other things, the following:

1. A declaration by the petitioner that he or she is eligible for relief under Penal Code § 1170.95, as modified by SB 775.
2. The Superior Court case number and year of petitioner’s conviction.
3. Whether the petitioner requests the appointment of counsel.

Failure to properly include this information may result in denial of the petition without prejudice, meaning it can be properly refiled at a later time. While these are the only factors mandated to be included in a petition for relief under SB 775, it is critical that a strong argument be set forth in the petition, detailing the petitioner’s entitlement to relief. A criminal appeals attorney can help compile the necessary information and compose a petition clearly detailing a petitioner’s entitlement to relief.

Once the petition is drafted, it must be filed in the court and served upon the District Attorney. Within 60 days, the District Attorney is required to file a response. The petitioner then has 30 days to file a reply, if necessary.

The Hearings
After all filings are complete, the court will review them and hold a hearing to determine whether the petitioner has made a prima facie showing of entitlement to relief. Prima facie means that, based upon the contents of the pleadings and the hearing, there is enough evidence to support proceeding with the case.

If the court finds that the petitioner has made a prima facie showing, it will issue an order to show cause why the requested SB 775 relief should not be granted. If the court declines to issue an order to show cause, it must provide a statement fully setting forth its reasons for doing so.

Assuming the order to show cause was issued, the case will proceed and, within 60 days, the court will hold another hearing, this time to determine whether to vacate the murder, attempted murder or manslaughter conviction(s) and to recall the sentence and resentence the petitioner on any remaining counts. The burden of proof at this hearing is on the prosecution to show that the petitioner is guilty of the murder, attempted murder or manslaughter charge under the now-amended laws beyond a reasonable doubt. Evidence may be introduced, and testimony may be gathered at this hearing. In some cases, the prosecution and defense can agree to waive a resentencing hearing and stipulate that the petitioner is eligible to have the conviction(s) vacated and to be resentenced.

If the parties stipulate or the court determines the conviction(s) must be vacated and the petitioner must be resentenced on any remaining counts, the new sentence is may not be longer than the initial sentence.

As described above, SB 775 currently sits on the desk of the governor – currently Governor Newsom – waiting to be signed. If the governor signs it, or no action is taken by September 30, 2021, and it becomes law, eligible persons will be able to file petitions in their sentencing court requesting relief under SB 775, also as described above.

California appeals attorney Matthew Barhoma is for his unmatched experience and success in litigating SB 1437 petitions, which are substantially similar to SB 775 petitions. See Power Trial Lawyers’s former case results, including results on SB 775’s predecessor, SB 1437, here.

Power Trial Lawyers is closely monitoring the development of Senate Bill 775 and is fully prepared to promptly and effectively submit SB 775 petitions for resentencing immediately upon the effective date of the changes to law and plans to stand at the forefront of litigating for application of the law to all reasonably possible circumstances.

If you believe the changes which may be implemented by Senate Bill 775 impact your case or the case of someone you love, contact Power Trial Lawyers today to have your case assessed.

¹ Cal. Pen. Code § 1170.95; Sen. Bill 1437 (Reg. Sess. 2017-2018, approved September 30, 2018).
² Id, Sen. Bill 775 (Reg. Sess. 2020-2021).
³ People v. Clark (2016) 63 Cal.4th 522, 611-614.
⁴ Id at 614-623.