California Senate Bill 1437, which took effect January 1, 2019, rewrote the state’s felony murder rule so that a person can be convicted of murder only if they actually killed someone, helped a killer while personally intending that someone die, or played a major role in a dangerous felony while showing reckless indifference to human life. The same law created a petition process, now found in Penal Code Section 1172.6, that lets people convicted under the old rules ask a court to vacate the murder conviction and resentence them. A follow-up statute in 2021, SB 775, extended that process to attempted murder and to certain manslaughter convictions.
What Murder Liability Looks Like Now
SB-1437 amended Penal Code sections 188 and 189. Section 188 now says that to be convicted of murder, a person must personally act with malice aforethought, and malice cannot be imputed to someone based solely on their participation in a crime.1California Legislative Information. California Penal Code 188 That single change dismantled the broadest applications of the old felony murder rule and eliminated the natural and probable consequences doctrine as a route to a murder conviction.
Section 189 then lists the only three ways a participant in a qualifying felony can still be convicted of murder when someone dies:
- Actual killer. The person directly caused the victim’s death.
- Intent to kill. The person was not the killer but aided the killer while personally intending that someone die.
- Major participant with reckless indifference. The person was a major participant in the underlying felony and acted with reckless indifference to human life, as defined under the special circumstances provision at Penal Code Section 190.2(d).
If a defendant does not fit one of those three categories, they cannot be convicted of felony murder. The felonies that can still trigger a first-degree felony murder charge when one of those conditions is met include arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, and certain sex offenses.2California Legislative Information. California Penal Code 189
One boundary matters here. The narrowed rule does not apply when the victim is a peace officer killed in the line of duty and the defendant knew or reasonably should have known the victim was a peace officer performing official duties. In those cases, the broader pre-reform liability rules still apply.2California Legislative Information. California Penal Code 189
The End of Natural and Probable Consequences Murder
Before the reform, prosecutors could win a murder conviction by arguing the killing was a foreseeable outcome of a different crime the defendant helped commit. If you helped plan a robbery and your accomplice killed a clerk, prosecutors could charge you with murder on the theory that the killing was a natural and probable consequence of the robbery. Section 188’s prohibition on imputing malice based solely on participation in a crime shut that theory down.1California Legislative Information. California Penal Code 188 The legislature said as much in the bill’s findings, which explained that both the felony murder rule and the natural and probable consequences doctrine needed reform so murder liability would not fall on people who did not kill, did not intend to kill, and were not major participants acting with reckless indifference.3California Legislative Information. California Senate Bill 1437 – Accomplice Liability for Felony Murder
Who Can Petition for Resentencing
SB-1437’s changes were not limited to future cases. The law created a petition process, now codified in Penal Code Section 1172.6 (originally numbered 1170.95 and renumbered in 2022), for people already serving time under the old theories.4California Legislative Information. California Penal Code 1172.6
To be eligible, all three of these must be true:
- You were charged under a theory that allowed the prosecution to pursue felony murder, murder under the natural and probable consequences doctrine, or another theory that imputed malice based solely on your participation in a crime.
- You were convicted of murder, attempted murder, or manslaughter after a trial, or you took a plea deal on charges that could have led to a murder or attempted murder conviction.
- You could not be convicted of murder or attempted murder today under the amended versions of sections 188 and 189 that took effect on January 1, 2019.
The third condition is the heart of it. If the changes SB-1437 made would have prevented your conviction, you may be entitled to relief.4California Legislative Information. California Penal Code 1172.6
How SB 775 Widened the Door
As originally written, the petition process reached only felony murder convictions and murder convictions based on the natural and probable consequences doctrine. In 2021, SB 775 extended eligibility to people convicted of attempted murder under the natural and probable consequences doctrine, and to people convicted of manslaughter in cases where the prosecution had been allowed to proceed on a felony murder or natural and probable consequences theory. SB 775 also added catch-all language covering convictions based on any “other theory under which malice is imputed to a person based solely on that person’s participation in a crime,” closing a gap some courts had used to reject petitions.4California Legislative Information. California Penal Code 1172.6
How the Petition Process Works
The petition is filed in the court that originally sentenced you, with copies served on the district attorney (or whichever agency prosecuted the case) and on your trial attorney or the county public defender. It must include a declaration that you are eligible for relief, your case number and year of conviction, and a statement about whether you want counsel appointed.4California Legislative Information. California Penal Code 1172.6
If you request an attorney, the court must appoint one once the petition contains the required information or the court can readily fill in any gaps. This is not discretionary. In People v. Lewis (2021), the California Supreme Court held that the right to appointed counsel attaches once a facially sufficient petition is filed, and that the court cannot conduct its initial merits review until counsel has been appointed and both sides have briefed the issue.
Prima Facie Review
After briefing, the court decides whether you have made a prima facie showing that you fall within the statute. The court takes your factual claims at face value and looks at the record of conviction to see whether the allegations, if true, would entitle you to relief. The judge is not supposed to weigh evidence or make credibility findings at this stage. If you clear the prima facie bar, the court issues an order to show cause, which triggers a full evidentiary hearing. If the court denies the petition here, it must issue a written statement explaining why.4California Legislative Information. California Penal Code 1172.6
The Evidentiary Hearing
Once an order to show cause issues, the court must hold an evidentiary hearing within 60 days, though extensions for good cause are common. The prosecution bears the burden of proving beyond a reasonable doubt that you are guilty of murder or attempted murder under the law as amended by SB-1437. Both sides can present new and previously heard evidence, including testimony from witnesses and evidence introduced at prior hearings or trials. Courts may also consider facts recited in prior appellate opinions about the case. The statute makes clear that merely finding substantial evidence to support a murder conviction is not enough. The prosecution must meet the beyond-a-reasonable-doubt standard.4California Legislative Information. California Penal Code 1172.6
If the prosecution cannot carry that burden, the court vacates the murder conviction and resentences the petitioner on the remaining charges. The new sentence cannot be longer than the original one.
How Courts Decide “Major Participant” and “Reckless Indifference”
The third pathway to a murder conviction under Section 189(e) is the battleground for most petitions, because many petitioners were neither the actual killer nor someone who intended a killing. The question is whether their role was significant enough, and their attitude toward human life cavalier enough, to justify a murder conviction. Two California Supreme Court decisions pre-date SB-1437 but now guide almost every resentencing case.
The Banks Factors
In People v. Banks (2015), the court laid out factors for deciding whether someone was a major participant:
- What role did the defendant play in planning the crime?
- Did the defendant supply or use weapons?
- How aware was the defendant of the dangers of the crime, the weapons involved, or the other participants’ history of violence?
- Was the defendant at the scene and in a position to help prevent the killing or facilitate it?
- What did the defendant do after lethal force was used?
No single factor decides the question. Courts weigh them together to answer whether the person’s involvement was significant enough to count as major participation in a crime known to carry a serious risk of death.5Justia Law. People v. Banks
The Clark Factors
In People v. Clark (2016), the court described what reckless indifference to human life looks like in practice. Simply knowing a gun will be present isn’t enough on its own, but personally carrying or using a firearm weighs heavily, even where the defendant did not fire the fatal shot. Being present at the scene matters, especially where the killing followed a chain of escalating events the defendant could see unfolding; a defendant who is present and fails to restrain a violent accomplice bears greater responsibility. The duration of the crime also counts. Prolonged restraint of victims, such as extended hostage situations or kidnappings, creates a longer window in which violence can escalate, and courts treat that prolonged exposure to danger as relevant. The Clark factors overlap with Banks, and courts usually consider them together.6Justia Law. People v. Clark
Two Decisions That Shape Petitions Today
Lewis set the procedural framework: the right to appointed counsel attaches on filing of a facially sufficient petition, and courts cannot evaluate the merits before counsel is appointed and briefing is complete. Early on, some trial courts were summarily denying petitions without appointing lawyers or hearing argument, and Lewis stopped that practice.
In People v. Strong (2022), the California Supreme Court addressed a question that had blocked many petitions: what to do when a jury, before Banks and Clark were decided, found that a defendant was a major participant who acted with reckless indifference. Some courts treated those older findings as permanently disqualifying. The Supreme Court disagreed, holding that pre-Banks/Clark jury findings do not automatically prevent a petitioner from making a prima facie case for resentencing, because those earlier juries applied a less rigorous standard than Banks and Clark later required.7Justia Law. People v. Strong
What Happens If a Petition Is Granted
When a court grants a petition and vacates the murder conviction, the petitioner is resentenced on whatever other charges remain. Someone originally convicted of both murder and robbery for a single incident, for example, might be resentenced on the robbery count alone. The new sentence cannot exceed the original.
Resentencing is not the same as release. Many petitioners have served decades, and whether they leave prison quickly depends on how much time they have already served against the new sentence. Some have served more time than the remaining charges carry and are released relatively soon after resentencing. Others still have significant time left, just less than the life term that came with the murder conviction. The process also does not erase the underlying felony conviction. If the murder charge is vacated but the robbery conviction stands, that robbery conviction remains on the person’s record with all the consequences that follow.