California Senate Bill 1437 was signed into law on September 30, 2018. The bill sets forth California's new laws on the crime of felony murder.
Under SB 1437, the felony murder rule only applies when a defendant:
- directly kills a person in the commission of a felony, or in an attempted felony;
- aids and abets the killing;
- is a major participant in the killing; or,
- when the victim was a peace officer engaged in the performance of his or her duties.
Examples of felony murder are when:
- After Nathan commits the felony of grand theft auto, he intentionally hits a witness with the car and drives over him.
- After Kyle helps a friend rob a convenience store, he holds the store owner while the friend repeatedly stabs the owner with a knife.
- Jason lights a car on fire (thereby committing the felony of arson) while he knows a person is sleeping in the back of it.
Luckily, there are several legal defenses available if a person commits a felony murder in California. These include showing that an accused party:
- Did not commit a felony;
- Had no intent to kill; and/or,
- Was not a “major participant” in the felony.
Like non-felony murder in California, there are two degrees of felony murder – first degree and second degree.
First-degree felony murder is punishable by:
Second-degree felony murder is punishable by imprisonment in the state prison for 15 years to life.
Our California criminal defense attorneys will highlight the following in this article:
- 1. California's Old Felony Murder Law
- 2.The New Legal Definition of Felony Murder in California
- 2.1. Committed or Attempted a Felony
- 2.2. Major Participant
- 2.3. Aiding and Abetting
- 2.4. Intent to Kill
- 2.5. Murder in the First Degree
- 3. Legal Defenses
- 4. Penalties, Punishment, and Sentencing
- 5. Related Offenses
The main difference between California's new felony murder law and the old law relates to the issue of intent.
Under California's old felony murder law, a person could get convicted of felony murder simply if a victim died during the commission of a felony. This was true even if:
- The defendant did not intend to kill a person;
- The defendant did not know a homicide took place; and,
- The killing was an accident.
Example: Tom kidnaps an elderly woman (violating Penal Code 207, California's kidnapping law) for ransom. He does not inflict any physical harm or force on her. However, in a state of fear, the woman suffers a heart attack and dies. Under this set of facts, Tom could have been charged with murder under the old felony murder rule – even though he inflicted no harm on the woman and had no intent to kill her.
Unlike the old law, the new felony murder law (as discussed below) requires a greater element of an intent to kill by the defendant.
The new felony murder law goes into effect January 1, 2019. SB 1437 applies retroactively, meaning some persons convicted under the old version of the felony murder rule will be eligible for resentencing to substantially shorter sentences.
According to SB 1437, a person commits felony murder, and therefore is liable for murder, when he commits, attempts, or participates in a felony; and, one of the following is true:
- He kills a person;
- He aides or abets in the commission of murder in the first degree with an intent to kill;
- He was a “major participant” in the felony and acted with “reckless indifference to human life;” or,
- Because of the defendant's acts, a peace officer was killed while engaged in the performance of his or her duties.1
A conviction of felony murder first requires that a defendant committed, or attempted to commit, a certain felony.
There is an underlying felony charge, or attempt charge, to every charge of felony murder. Further, every felony has certain elements that a prosecutor must prove to convict a defendant of that felony. If these elements are not proven, then there is no commission of a felony. In the context of felony murder, no proof of an underlying felony means a felony murder charge cannot be brought.
Example: John is charged with carjacking under California Penal Code 215. The elements of this crime are that: (1) John took a car from another person; and, (2) he did so by means of force or fear. At trial, John's attorney shows that while he took a car from Jennifer, he did so with her permission.
This means John did not take the vehicle by means of force or fear. Thus, he is innocent of the felony of carjacking. If a person was killed in the case, John would also be innocent of felony murder since he is innocent of the felony.2
Note that a person can get charged with a felony, as well as, an attempt to commit a felony. Attempt is a crime if:
- A defendant intended to commit a certain felony; and,
- He performed a direct act toward committing that crime.3
As with a felony charge, if a prosecutor cannot successfully prove both elements of attempt, then a defendant is innocent of an attempt charge. Further, if a person was killed in the case, there would be no attempt charge to support a felony murder charge.
Senate Bill 1437 applies to persons that commit a felony, attempt a felony, or participate in a felony. If an accused participates in a felony, SB 1437 states that the accused must be a “major participant” in the felony to be accused of felony murder.4
Under California law, the determination as to whether a defendant is a “major participant” in a felony murder charge is based upon the facts of the case.5 A few facts a court might consider include:
- A defendant's role in planning the crime;
- Whether the defendant supplied any weapons for the commission of the crime; and,
- If the defendant was present at the scene of the murder.6
Under the new felony murder law, a person is guilty of felony murder even if he does not actually murder someone – provided though that he “aided or abetted” in the murder.
While aiding and abetting is not a specific crime in California, it is a legal principle set forth under Penal Code 31 PC. This principle allows the state to prosecute a person if he is “in on” a crime, or, helps in the crime.
PC 31 states:
All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission…are principals in any crime so committed.7
Whether a person “aided and abetted” in a crime, or a murder, is determined by the facts of the case. This means if the facts show that a defendant aided and abetted in a murder while committing a felony, that person is guilty of felony murder.
Closely associated with the issue of aiding and abetting is the issue of “intent to kill.”
Senate Bill 1437 states that a person that aids and abets in a murder can be charged with felony murder. But, the bill also states that this person must aid and abet with the specific intent to kill.8
California law states that a person has an intent to kill when he acts with “malice aforethought.”
In describing malice aforethought, courts have stated:
The mental state constituting malice aforethought does not presuppose or require any ill will or hatred of the particular victim. When a defendant 'with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,' he acts with malice aforethought.9
Senate Bill 1437 states that one way a person can be convicted of felony murder is if he:
- Committed, attempted, or participated in a felony; and,
- With the intent to kill, aided or abetted in the “commission of murder in the first-degree.”
California Penal Code 189 PC sets forth a list of specific California felonies. A murder is labeled first-degree murder if it is committed in the course of one of these felonies.10
The felonies included under PC 189 are:
- Arson, Penal Code 451,
- Rape, Penal Code 261,
- Carjacking, Penal Code 215,
- Robbery, Penal Code 211,
- Burglary, Penal Code 459,
- Mayhem, Penal Code 203,
- Kidnapping, Penal Code 207,
- Train wrecking, Penal Code 219,
- Torture, Penal Code 206,
- Unlawful acts of sodomy, Penal Code 286,
- Lewd acts with a minor, Penal Code 288, and
- Forcible sexual penetration with a foreign object, Penal Code 289.11
Under Penal Code 189, a person is also guilty of 1st-degree murder if he commits murder either by:
- Using a destructive or explosive device;
- Using a weapon of mass destruction;
- Lying in wait or by inflicting torture; or,
- By killing in a way that is willful, deliberate, or premeditated.
A person accused of felony murder can challenge the accusation by raising a legal defense. A good defense can often get the charge reduced or even dismissed. Please note, though, that is critical for an accused to hire an attorney to raise a defense on his behalf.
Three common defenses to felony murder accusations are:
- No felony committed,
- No intent to kill, and
- Accused is not a major participant
Recall that a person can only be charged with felony murder if he committed, attempted or participated in an actual felony. Further, a prosecutor must successfully prove every element of the felony for both a felony conviction and a felony murder conviction. This means it is a solid legal defense to felony murder for a defendant to show that he was not guilty of the underlying felony charge.
This is a defense if a person is accused of felony murder under the theory that he aided and abetted in a murder. Recall that a person can be guilty of felony murder when he aids and abets in a murder, but he must also have the intent to kill while doing so.
Intent to kill is shown by the facts of a case and requires that a defendant exhibits malice aforethought. Thus, a defense to felony murder is for an accused to show that while a killing may have occurred, he had no specific intent to kill.
Recall that a person can be charged with felony murder if a killing occurs and the defendant was a “major participant” in the underlying felony. As with intent to kill, the determination as to whether a defendant is a “major participant” is based upon the facts of a case. This means a defense to a felony murder charge is for the defendant to use the facts of his case to show that he was not a “major participant” in the felony committed.
Like non-felony murder in California, there are two degrees of felony murder. These are:
- First-degree; and,
Different penalties are imposed for each separate degree.
As noted above, California Penal Code 189 PC sets forth several specific felonies. If a person commits a murder while committing any of these felonies, he can get charged with first-degree murder.
In a similar fashion, a defendant can get charged with first-degree felony murder if the felony involved is on the list set forth in PC 189.
A first-degree felony murder conviction can lead to:
- 25 years to life in California state prison;
- Life in California state prison without the possibility of parole; or,
- The California death penalty.12
Second-degree felony murder is any felony murder that does not qualify as first-degree felony murder.13
A second-degree felony murder conviction can lead to 15 years to life in California state prison.14
There are three crimes related to the offense of felony murder. These are:
- Arson - Penal Code 451 and 452
- Involuntary Manslaughter – Penal Code 192(b); and,
- Trespassing – Penal Code 602.
California's arson laws, Penal Code 451 and 452, pertain to the setting of fire of any building, forest, or property. These acts are a crime if they are done either:
- Willfully and maliciously (this is the crime commonly known as “arson”), or
- Recklessly (this crime is often called “reckless burning” or “reckless arson”).15
A person can also be charged with California arson for setting his own property on fire, provided that:
- The property is a building or other real estate,
- The person set fire to his personal property for a fraudulent purpose (to commit California insurance fraud, for example), or
- The fire caused injury to another person or to another person's home, property, or land.16
The punishment for arson charges in California depends on:
- The type of property that was burned,
- Whether or not someone suffered a burn injury, and
- Whether the defendant set the fire willfully or only “recklessly.”17
Depending on the facts of a case, the penalties for arson can include years in state prison and significant fines.
Involuntary manslaughter occurs when one person kills another unintentionally, either
- While committing a crime that is not an inherently dangerous felony; or,
- While committing a lawful act which might produce death, without due caution.18
Under Penal Code 192(b), a key feature of California's involuntary manslaughter law is that it does not require intent to kill another person—unlike Penal Code 187 murder, which requires “malice aforethought.”19
Please note that California's involuntary manslaughter law does not include actions that fit the above definition but involve a car. Those will be charged under California's vehicular manslaughter laws.20
Involuntary manslaughter is a felony under California law. Possible penalties include:
- Two, three, or four years in jail; and/or,
- A fine of up to $10,000.21
California Penal Code 602 PC prohibits the crime known as criminal trespass. A person commits this crime when he:
- Enters, or remains on, someone else's property; and,
- Does so without permission or a right to do so.22
In most cases, California trespass is a misdemeanor punishable by:
- Up to six months in county jail; and/or,
- A fine of up to $1,000.23
However, certain kinds of trespass in California may lead only to infraction charges, with penalties consisting of only a small fine.24
A person guilty of “aggravated trespass” will face felony charges and could receive a jail sentence of:
- 16 months;
- Two years; or,
- Three years.
“Aggravated trespass” is when a person:
- Threatens to injure someone; and then,
- Enters their home or workplace without permission.25
Were you accused of felony murder in California? Call us for help…
If you or someone you know has been accused of felony murder, pursuant to Senate Bill 1437, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LAWFIRM. (For similar cases in Nevada, please visit our page on Nevada felony murder rule. For Colorado law, see our page on the felony murder rule in Colorado.)
California Senate Bill 1437.
Please note, however, that depending on the facts of the case, if a person was killed, John could get charged with the offense of murder.
Penal Code 21a PC.
California Senate Bill 1437.
In re Bennett, Cal. App LEXIS 790 (2018). See also People v. Banks, 61 Cal. 4th 788 (2015).
See People v. Banks.
California Penal Code 31 PC.
California Senate Bill 1437.
People v. Summers, 147 Cal.App.3d 180 (1993).
California Penal Code 189 PC.
California Penal Code 190 PC.
California Senate Bill 1437.
California Penal Code 190 PC.
California Penal Codes 451 and 452 PC.
California Penal Code 192(b) PC.
California Penal Code 187 PC – Murder [contrast with the definition of involuntary manslaughter]. (“(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”)
California Penal Code 192(c) PC.
California Penal Code 193 PC.
California Penal Code 602 PC.
California Penal Code 602.8 PC.
California Penal Code 601 PC.