In 2019, California repealed the felony murder rule, making tens of thousands of presently incarcerated people eligible for relief under the new Cal. Pen. Code 1172.6.

The old felony murder rule treated all participants in the underlying felony the same when the commission of that felony resulted in a murder or attempted murder. Now, individuals who participated in the crime but were not the actual killer nor a major participant in the killing may be resentenced for participation in the underlying felony,

The old felony murder rule resulted any many strange outcomes, like a person serving life in prison because the police pursuing him for a robbery killed a woman in a cross walk.

The former felony murder rule produced many unfair outcomes; however, there is a new process that is balancing the scales of justice retroactively.

In 2022, the felony murder rule reform explicitly added pleas to lesser offenses taken in order to avoid prosecution for murder or the death penalty as eligible for this relief as well.

Now, a district attorney must prove the petitioner was the actual killer or a major participant in the murder (or attempted murder) beyond a reasonable doubt.

There are a few conditions a petitioner must meet in order to be considered for this Cal. Pen. Code 1172.6 relief. Those conditions are as follows:

(1)A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences doctrine.

(2)The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.

(3)The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.
(Cal. Pen. Code § 1172.6.)

As this is a new process, it can take considerable time to get through all the steps.

First, a petition is filed with the sentencing court with a declaration from the petitioner that affirms petitioner is eligible for this relief. This is the prima facie stage. The district attorney may object at this stage. If a petition is rejected at this phase, the petitioner may appeal and request appointed representation for the appeal.

Second, if the judge finds that the prima facie showing has been met, the court will issue an order to show cause. At this time, the judge will order that the transcripts from the prior hearing be provided to all parties.

Next, an evidentiary hearing (Cal. Pen. Code 1172.6(d)(3)) will be set. At that hearing, the petitioner may bring in additional evidence. Petitioner’s attorney may also requesting additional funding from the court for an investigator and expert witness as needed.

Finally, upon competition of the evidentiary hearing, the judge will issue a decision. If the judge finds that the district attorney did not prove beyond a reasonable doubt that petitioner was the actual killer or a major participant in the killing, then petitioner will be resentenced for the underlying felony. Additionally, petitioner is entitled to a complete resentencing, meaning petitioner may introduce factors in mitigation, like youth at the time of the offense, drug / alcohol abuse, and accomplishments in prison.

To find our if you or an incarcerated loved one is eligible for relief, schedule a free consultation today.