Change in California law will set convicted killers free
Sacramento CA October 17 2018 Three Fallbrook gang members who didn’t want a black man in their territory attacked Hugh Pettigrew III, who was fatally stabbed.
A security guard killed Marlon Thomas in a shootout during a botched robbery of a North Park marijuana dispensary.
Three young people cruising Balboa Park, looking for someone to rob, left John Lentz dead and his girlfriend wounded in a drive-by shooting.
In each of the three homicides, spanning 22 years, an accomplice who wasn’t proven to be the actual killer was convicted of murder and sent to prison for life.
Those three men most likely will have their murder convictions vacated as a result of a radical revision of California’s felony murder law, part of a series of criminal justice reforms in the past 20 years aimed at steering people away from long prison terms.
Two of the three men could be freed from prison next year because of the change in law.
Because the new law is retroactive, the District Attorney’s Office calculates that 143 current state prison inmates convicted of felony murder in San Diego County in the past dozen years may qualify to have those convictions vacated and be released from prison.
Statewide, by some estimates, 800 to 1,000 prison inmates could be eligible for the same path to freedom.
Defense lawyers say the reform is long overdue and more fairly fits the punishment to the crime. Prosecutors worry that criminals won’t be held accountable when their actions cause a death.
“California’s felony murder law was one of the harshest in the country,” said longtime criminal defense attorney Eugene Iredale.“This is a major step in making sure criminal justice is consistent with moral propriety. Punishment should be consistent with culpability, on the basis of crimes you actually commit, not of accident.”
The felony murder rule comes from centuries-old British common law. It says, in essence, if you took part in a felony and someone died, you could be convicted of murder. It didn’t matter whether you were the one who killed the person, or if you had no intention of harming anyone.
In California, a killing that is intentional and premeditated is first-degree murder, with a sentence ranging from 25 years to life in prison up to the death penalty in certain cases. But the state’s version of the felony murder rule sidesteps the question of intent to define other homicides as first-degree murder if they occurred during the commission of specific felony crimes including arson, rape, carjacking, robbery, burglary, mayhem, and kidnapping.
That rule underwent a major overhaul on Sept. 30, when Gov. Jerry Brown signed Senate Bill 1437, called “Accomplice liability for felony murder.” It goes into effect Jan. 1.
Under the revision, only people who aided or were a “major participant” in a killing, or showed reckless disregard for human life, can be charged with felony murder. For instance, a robbery getaway driver, unaware that his accomplice just killed someone, might be charged only for having a role in the robbery.
The bill also revised a related doctrine of “natural and probable consequences.” The doctrine holds that death could reasonably be expected as a natural or probable result of certain types of crimes — such as the gang “beat-down” assault that killed Pettigrew in Fallbrook.
The law goes further, with a retroactive aspect that allows inmates convicted under the current felony murder rule or the natural and probable consequences doctrine to petition the trial court to have their convictions vacated.
“That, to me, is one of the biggest concerns,” said Chief Deputy District Attorney David Greenberg. “Our ability to hold people accountable for murder will be compromised.”
If a felony murder conviction is vacated, inmates could be re-sentenced for whatever felony they were committing when the killing happened. But they may well have already served the amount of time they would get for the lesser crime. If so, they would be released from prison.
Greenberg said county prosecutors may have secured as many as 300 felony murder convictions going back to the 1980s and 1990s. Not all would result in petitions for release from prison — many of the convicts have already been been paroled, or could be deceased.
Greenberg prosecuted the trio convicted of murder in the killing of acting student John Lentz in Balboa Park in 1994. A 17-year-old girl shot Lentz several times from a pickup driven by a man who was looking for someone to rob. Ray Waldrop, in the backseat, was convicted of felony murder because he was in on the robbery plan.
A jury found specifically that Waldrop was not a major participant in the killing. Because of that finding, he can ask the court next year to vacate his felony murder conviction.
“I don’t have an argument about him being a major participant,” Greenberg said. “There is nothing for me to argue, nothing to fight.”
If Waldrop is re-sentenced on the remaining robbery charge, he could get a five-year term at most. He’s already served 23 years, so he would be eligible for release, Greenberg said.
On another front, Waldrop had his first state parole board hearing on Wednesday at Richard J. Donovan state prison in Otay Mesa and was denied release. Greenberg said Lentz’s family kept tabs on the hearing and are distressed that he will likely go free next year anyway.
Deputy District Attorney Christine Bannon, who prosecuted the three Fallbrook gang members in on the 2016 attack on Pettigrew, called the new law “horribly short-sighted.”
“I feel some victims and families will be robbed of justice,” Bannon said.
She said Pettigrew’s family is devastated to know that one of his convicted attackers, Ryan Valdez, might go free next year because there is no proof he was armed that night or that the natural or probable consequences of his actions was a death.
Grainy security camera video showed three men assaulting 33-year-old Pettigrew, but was not clear enough to show which ones had a knife.
“We can see a man being killed — walking while black,” Bannon said. “It boggles the mind for a victim’s family member who sat through the entirety of the trial. Because it is murder.”
Defense attorneys, as might be expected, have a different take on the new law. San Diego County Public Defender Randy Mize called it “pivotal to justice and fairness.”
“I’m proud of Sacramento for this legislation. I’m proud of the governor for signing it. It’s the right thing to do,” Mize said.
The bill was co-authored across the political aisle by senators Nancy Skinner, D-Berkeley, and Joel Anderson, R-Alpine.
Anderson, known as a political conservative, emailed a statement to The San Diego Union-Tribune, saying: “Victims don’t want vengeance, they want justice. It’s unjust to charge people with murder who had nothing to do with the actual murder.”
Attorneys said the timing was right for the reform.
“I’ve seen things go from draconian, tough on crime, to our prisons increasingly full, to high recidivism, to now, all the way back the other way,” said Mize, who joined the Public Defender’s Office in 1988. “We’re coming around to rehabilitation.”
Patrick Dudley, who represented Kurese Bell, convicted in 2016 of felony murder in the North Park dispensary shootout, said “incarcerating our way out of social issues” hasn’t worked.
“Enormous inequities have occurred in the last 40 to 50 years in our criminal justice system,” Dudley said. “The atmosphere, the political appetite is much more palatable (now) to criminal justice reform.”
Bell was 17 when he and Marlon Thomas robbed the pot shop in 2014, a few days after robbing a smoke shop where Bell fired a gun. At the dispensary, the security guard shot and killed Thomas, then Bell exchanged gunfire with the guard and wounded him.
Charged under the felony murder rule — because someone died during the commission of a serious crime — Bell was convicted of first-degree murder for Thomas’ death even though the teen didn’t shoot him. Bell also was convicted of attempted murder for shooting the guard, and robbery charges, and could be re-sentenced on those charges.
Defense lawyer Robert Grimes said the felony murder rule was never fair.
“Now, these matters will be evaluated on a case-by-case factual analysis by juries and judges,” Grimes said.
“You get these impulsive young guys locked up for life because a robbery went bad and they didn’t really foresee someone would get killed,” he said. “In California, there has been a reassessment of the utility of certain mandatory (sentencing laws) and fairness. We are giving trial judges back discretion.”
the San Diego Union
