January 14, 2021 By Paul Wallin

In 2018, the Legislature enacted Senate Bill No. 1437, which amended the felony murder statute to read that a defendant is only guilty of felony murder if he: actually killed the victim, directly aided and abetted or solicited in the killing, or otherwise acted with the intent to kill; or was a major participant in the underlying felony and acted with reckless disregard to human life.

Can a Person Apply for Resentencing if Convicted Prior to the Change?

Section 1170.95 allows a defendant serving a sentence for felony murder who would not be guilty of murder because of the new law to petition for resentencing. In order to submit a petition, the defendant must meet three criteria of eligibility:

  1. The defendant was charged with murder in a manner “that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine”,

  2. The defendant “was convicted of” or pleaded guilty to “first-degree murder or second-degree murder”, and

  3. The defendant could not be convicted of first- or second-degree murder because of changes to the felony murder statute, effective January 1, 2019.

In a recent case, People v. Gallo, the California Court of Appeals denied the defendant’s petition for resentencing, because he did not meet the criteria under Section 1170.95. In this case, the defendant was convicted on March 10, 2006, with elder abuse under Penal Code 368, subdivision (b)(1), and murder under section 187, subdivision (a). He received 15 years to life. He filed his petition for resentencing just two months after the new felony murder law went into effect in 2019.

Qualifying for Resentencing Under SB 1437

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Mr. Gallo was charged with murder in a manner that allowed the prosecution to proceed under a theory of felony murder. He killed his elderly father by punching him in the face, leading to convictions of both elder abuse and murder. Because Mr. Gallo committed the murder while in the commission of a felony, in this case elder abuse, the prosecution was able to proceed under a theory of felony murder. He also meets the second criteria for eligibility for resentencing, because he was convicted of second-degree murder.

In order to qualify for resentencing, Mr. Gallo needed to prove that he could not have been convicted of second-degree murder based on the changes to the statute. However, Mr. Gallo was the sole killer and directly caused his father’s death. Therefore, he did not meet the criteria for resentencing, because his second-degree murder conviction is not affected by changes to the felony murder rule.

Contact Wallin & Klarich Murder Defense Attorney To Help You Today

Here at Wallin & Klarich, our criminal defense attorneys will be there to answer your questions regarding whether the law applies to your situation. Our attorneys are trained to fight for your rights and provide you with the legal representation that you need. If you think you have been wrongfully accused of committing a crime, Wallin & Klarich can provide you with the legal representation you need.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance, and Victorville, there is an experienced and skilled Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (714) 587-4279 for a free, no-obligation phone consultation. We will be there when you call.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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