68 Cal.App.5th 153
Cal. Ct. App.
2021
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Background

  • In 2008 Virgil Jerod Wilkins was convicted of arson and first degree murder and sentenced to 25 years to life for murder; his direct appeal was affirmed.
  • In 2018 the Legislature enacted Senate Bill No. 1437 (effective Jan. 1, 2019), which narrowed murder liability by amending Penal Code §§ 188 and 189 and created § 1170.95 to permit resentencing petitions for certain felony‑murder or natural‑and‑probable‑consequences convictions.
  • Wilkins filed a § 1170.95 resentencing petition after SB 1437 took effect.
  • The district attorney moved to strike the petition, arguing SB 1437 effectively eliminated the narrowing function of the felony‑murder special circumstance (Pen. Code § 190.2(a)(17)), thus amending or repealing voter initiatives (Props. 7 and 115) in violation of Cal. Const. art. II, § 10; the DA also raised standing and other procedural objections.
  • The trial court agreed SB 1437 destroyed the special‑circumstance narrowing function, declared SB 1437 unconstitutional, and struck Wilkins’s petition without resolving whether he made a prima facie showing under § 1170.95(c).
  • The Court of Appeal reversed: it held the felony‑murder special‑circumstance statute still narrows the class of death‑eligible murderers after SB 1437, the DA lacked standing to assert the defendant’s Eighth Amendment rights, and remanded for the trial court to perform the § 1170.95(c) prima facie review.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
1) Does the district attorney have standing to challenge SB 1437 on Eighth Amendment grounds on behalf of the defendant? DA asserted SB 1437 violates Eighth Amendment narrowing requirements and other constitutional provisions. Wilkins argued only he may assert his personal Eighth Amendment rights; DA lacks standing. DA lacks standing to assert the defendant’s Eighth Amendment rights.
2) Did SB 1437 effectively repeal or amend the felony‑murder special‑circumstance statute (and thereby amend voter initiatives) by eliminating its narrowing function? DA: Because § 189(e) (SB 1437) and § 190.2(a)(17) now have identical elements, the special circumstance no longer narrows and is effectively repealed, unlawfully altering initiatives. Wilkins/AG: SB 1437 did not change that special circumstances still limit death eligibility to a subclass of murderers. SB 1437 did not repeal or amend the special‑circumstance statute; it continues to perform the Eighth Amendment narrowing function.
3) Does overlap or identity between felony‑murder elements and special‑circumstance elements violate the Eighth Amendment? DA: Overlap renders no meaningful narrowing; thus SB 1437 is unconstitutional. Wilkins/AG: Overlap is permissible; narrowing concerns are satisfied because the special circumstance narrows the whole class of murderers to a subclass. Overlap (even identical elements) does not violate the Eighth Amendment; the special circumstance still narrows the class of murderers.
4) Was the petition properly struck without a prima facie review under § 1170.95(c)? DA sought dismissal on constitutional grounds; court struck petition. Wilkins argued the court must perform the statutory prima facie review before striking. Trial court erred by striking the petition without conducting the § 1170.95(c) prima facie review; matter remanded.

Key Cases Cited

  • People v. Bacigalupo, 6 Cal.4th 457 (1993) (Eighth Amendment requires a narrowing principle for death eligibility)
  • People v. Beames, 40 Cal.4th 907 (2007) (special circumstances narrow the class of death‑eligible murderers)
  • Tuilaepa v. California, 512 U.S. 967 (1994) (aggravating circumstance must apply to a subclass of murderers)
  • Lowenfield v. Phelps, 484 U.S. 231 (1988) (duplication of an element by an aggravating circumstance is permissible)
  • People v. Johnson, 62 Cal.4th 600 (2016) (overlap between murder elements and special‑circumstance elements does not offend the Eighth Amendment)
  • People v. Catlin, 26 Cal.4th 81 (2001) (first‑degree murder liability and special circumstances may share elements)
  • People v. Bonillas, 48 Cal.3d 757 (1989) (making felony murder but not simple murder death‑eligible satisfies federal constitutional requirements)
  • People v. Lamoureux, 42 Cal.App.5th 241 (2019) (discussing standing and challenges to § 1170.95)
  • People v. Gooden, 42 Cal.App.5th 270 (2019) (same)
  • Miller v. Alabama, 567 U.S. 460 (2012) (constitutional rights under Eighth Amendment are personal)
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