Malice not required for felony murder of a peace officer

The People, Plaintiff and Respondent, v. Alberto Beto Hernandez, Defendant and Appellant. (Cal. Ct. App., Jan. 22, 2021, No. B302815) 2021 WL 221976, at *1–2

Summary: On January 1, 2019 the the law governing whether a defendant can be convicted of murder under a felony murder or natural and probable consequences theory was changed. The Legislature enacted Penal Code section 188, subdivision (a)(3),1 which provides that, (except as stated in section 189, subdivision (e)), to be convicted of murder a defendant must act with malice and that malice may not be imputed based solely on participation in a crime.

Section 189, subdivision (e), is an exception to the malice requirement for murder,  stating that an individual can be liable for first degree felony murder if the person (1) was the actual killer, (2) acted with the intent to kill in aiding and abetting the actual killer, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life.

Section 189, subdivision (f) was intended to allow individuals to be convicted of felony murder even if they did not act with malice and do not fall in one of the three categories of section 189, subdivision (e), where the victim is a peace officer engaged in the course of his or her duties and the defendant knows (or reasonably should know) these facts. The Legislature has recognized peace officers face unique dangers when performing their official duties.

Statutory language requires malice in felony murder of a peace officer

Section 189, subdivision (f), states: “Subdivision (e) does not apply to a defendant when the victim is a peace officer who was killed while in the course of the peace officer’s duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer’s duties.” The problem is that, if section 189, subdivision (e), “does not apply,” then arguably section 188, subdivision (a)(3), does apply, which would mean the prosecution must prove malice when the victim of a felony murder is a peace officer, but not when the victim is someone other than a peace officer. Which does not make sense.

Alberto Hernandez relies on this flawed language in his appeal from the superior court’s order denying his petition under section 1170.95, which allows certain defendants convicted of murder under a felony murder or natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. Hernandez argued the superior court erred in ruling that section 189, subdivision (f), like the three circumstances in section 189, subdivision (e), is an exception to section 188, subdivision (a)(3), and that the prosecution does not need to prove the defendant acted with malice to convict the defendant of the murder of a peace officer under the felony murder doctrine.

The Court of Appeal concluded the superior court correctly ruled section 189, subdivision (f), does not require the prosecution to prove the defendant acted with malice. The Court  affirmed the order denying Hernandez’s petition under section 1170.95.

Hernandez Files a Petition Under Section 1170.95

 On January 4, 2019 Hernandez filed a petition under section 1170.95, alleging that he was convicted of felony murder on a theory on which he could not be convicted after the amendments to sections 188 and 189 and that he was not the actual killer, was not a major participant in the felony, and did not act with reckless indifference to human life.

He also alleged: “The victim of the murder was not a peace officer in the performance of his or her duties, or I was not aware that the victim was a peace officer in the performance of his or her duties and the circumstances were such that I should not reasonably have been aware that the victim was a peace officer in the performance of his or her duties.”

The prosecutor argued Hernandez was ineligible for relief under section 1170.95 because “the victim was a peace officer who was killed while in the course of his duties, and [Hernandez] knew that the victim was a peace officer engaged in the performance of his duties as defined in Penal Code section 189(f).”

The superior court found Hernandez made a prima facie showing he fell within the provisions of section 1170.95. The court held an evidentiary hearing and denied the petition. The court ruled Hernandez was not entitled to relief under section 1170.95 because he could still be convicted of first degree murder under section 189, subdivision (f). Hernandez appealed.

Section 189, Subdivision (f), Is an Exception to the Malice Requirement of Section 188, Subdivision (a)(3)

Hernandez’s  argument is based on a drafting oversight: Section 188, subdivision (a)(3), says that, except as set forth in section 189, subdivision (e), all murder requires malice aforethought, and malice cannot be imputed based solely on a person’s participation in a crime. Under section 189, subdivision (e), the prosecutor must show the defendant was the actual killer, aided and abetted the actual killer with the intent to kill, or was a major participant in the underlying felony and acted with reckless indifference to human life. If the circumstances described in section 189, subdivision (f), exist, however, section 189, subdivision (e), “does not apply.” Hernandez asserts that, where section 189, subdivision (f), applies (and subdivision (e) “does not”), the prosecutor still must show the defendant acted with malice under section 188, subdivision (a)(1) or (a)(2), because the Legislature could have identified, but did not identify, section 189, subdivision (f), as an exception to section 188, subdivision (a)(3).

Hernandez’s interpretation  would lead to an absurd result: It would make it no easier for prosecutors to convict defendants of murder where the victim is a peace officer than it would be where the victim is not a peace officer. “[The Court] must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246; see People v. Bullard (2020) 9 Cal.5th 94, 107.

The Court’s interpretation of the statute is consistent with a leading treatise on California sentencing law, which explains section 189, subdivision (f), as follows: “The only exception to the new felony-murder rule is when the victim of the homicide is a peace officer …. If the defendant is a participant in one of the designated crimes and in the course of committing the felony a peace officer is killed, the defendant may be convicted of first degree felony murder without any additional showing of malice or premeditation. The defendant may be convicted of felony murder without proof the defendant was the actual killer, that the defendant, with the intent to kill, assisted in the commission of the killing, or that the defendant was a major participant in the underlying felony and acted with reckless indifference to human life.” (Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2020 supp.) § 23:48, see People v. Lopez (2020) 56 Cal.App.5th