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California Court of Appeal Reverses Felony-Murder Conviction Where Sentencing Occurred After SB 1437 Enacted

The Court of Appeal of California, Second Appellate District, Division Eight, held that a felony-murder conviction was invalid when guilt was determined prior to the enactment of Senate Bill 1437 (“SB 1437”), which was passed in the 2017-2018 regular session of the Legislature, but sentencing occurred after SB 1437 was enacted.

Davon Raydale Thomas and three other men were involved in three separate criminal incidents in Los Angeles on May 23, 2015. In the first incident, four Black men exited a black car near a festive party with about 100 people in attendance, and one or more of them fired several rounds at the house hosting the party. One witness thought she heard a shooter yell, “Eight Tray Gangster Crips.”

In the second incident, a man investigating why his dog was barking saw two men holding a third man against a chain link fence and telling him to “hurry up” and “give it up nigga.” Another man exited a car, walked over to the group and fatally shot the accosted man. The three men left in the car.

The third incident started when two police officers saw a black Chevy Cruise driving at a very high rate of speed in the opposite direction. They turned and followed the car, which was driving 70 to 90 miles per hour through residential neighborhoods and ignoring red lights and stop signs. They saw a handgun being tossed from the car shortly before it collided with another car, disabling it. Two passengers ran but were quickly apprehended. Thomas, who was driving, remained in the car along with another man. They were arrested.

Police recovered two .38 caliber revolvers and a.40 caliber automatic handgun from the scene. They ballistically matched one revolver to the murder and the automatic to the shooting at the house party. All four men were tried for murder, shooting at an inhabited dwelling, and felony evading in violation of state Penal Code §§ 187 and 246 and Vehicle Code § 2800.3. A gang allegation under Penal Code § 186.22 was added to the § 246 charge.

A jury convicted Thomas on all charges and found the gang allegation true. The other men were convicted of various charges, but none of them were convicted of murder. Several months passed before Thomas was given consecutive sentences of 25 to life for the murder, 15 to life for the shooting, and seven years for evading. Thomas filed a motion for new trial, alleging that, because he had been tried for felony murder under a natural and probable consequences theory and SB 1437, which was enacted prior to his sentencing, prohibited the use of that theory, he should be given a new trial. The motion was denied.

Aided by court appointed attorney C. Matthew Missakian, Thomas appealed. Among his claims was one that the trial court erred in denying the motion for new trial. The Court of Appeal overruled all of his claims except that one.

Under SB 1437, the only persons who can be convicted of murder are: (l) the actual killer, (2) an aider and abettor who intended to kill, and (3) an aider and abettor who was a major participant and acted with reckless indifference to human life. The latter two are the only permitted theories of prosecution for felony murder, said the Court.

The Court noted that the trial court did not instruct the jury to consider whether Thomas was a “major participant” or had a mental state exhibiting “reckless indifference to human life,” the only relevant special circumstance. Instead, the jury indicated it had convicted Thomas based on felony murder and found premeditation not true.

SB 1437 set up an exclusive procedure for challenging both final and non-final murder convictions, codified at Penal Code § 1170.95. It requires eligible persons to file a petition with the trial court. To be eligible requires a felony-murder conviction under the natural and probable consequences theory or a first- or second-degree murder conviction where the petitioner could not be convicted under current law.

The Court agreed with the prosecution that § 1170.95 is the exclusive procedural remedy for persons with felony-murder convictions. However, Thomas did not have a conviction at the time of SB 1437’s enactment, the Court explained. A defendant is not convicted until sentenced. See People v. Lara, 438 P.3d 251 (Cal. 2019). Thus, because he was not convicted by SB 1437’s enactment date, in what was apparently a case of first impression, the Court held that Thomas was not bound by the requirements of § 1170.95.

Accordingly, the Court reversed and remanded the murder conviction with instructions for the trial court to grant the motion for new trial. See: People v. Thomas, 64 Cal. App. 5th 924 (2021). 

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