The petition for resentencing under SB 1437 for two of the men convicted in the 2002 double-murder known as the Halloween Homicides has been reset for November 20. Deputy Public Defender Ron Johnson, representing James Olague, and Robert Spangler, representing Ernesto Arellano, have each filed supplemental motions on the constitutionality of 1437, which Deputy DA Ryan Couzens needs to respond to.
If Judge Paul Richardson rules that SB 1437 is constitutional, then the case can proceed to determine whether the particulars of the case fit the criteria for relief under the law that took effect on January 1.
The two men along with Oscar Cervantes are alleged to have played a key role in the October 31, 2002, shooting death of Robert Stepper and Eric Folsom. Mr. Stepper was allegedly killed for an 
outstanding drug debt and Mr. Folsom was a bystander. Two teen girls were injured in the shooting.
Both men were sentenced to life without parole, but avoided the death penalty. They continue to deny any involvement in the homicide.
Under 1437, signed into law last fall by Governor Jerry Brown, the felony murder rule is now limited to those who are the actual killer, those who aided and abetted the killing or those who are major participants in the underlying felony and acted with reckless indifference to human life.
Earlier this year, Judge David Rosenberg ruled that the law violates voter intent of Prop. 7 which increased punishments for first- and second-degree murder and thus is unconstitutional.
“By enacting the re-sentencing provision of section 1170.95, SB 1437 explicitly takes away from the punitive consequences of persons sentenced under the provisions of Proposition 7,” Judge Rosenberg’s ruling says.
“Whereas Proposition 115 expands the definition of first-degree murder, SB 1437 restricts and takes away from that definition,” Judge Rosenberg added.
However, increasingly counties are acting on SB 1437 and the state attorney general, as the Vanguard reported in July, wrote a brief indicating that SB 1437 was lawful.
The AG’s office argues in that brief that SB 1437 does not amend Prop. 7. They argue instead, “S.B. 1437 changed the elements that must be proven to convict for the crime of murder, not the penalties upon conviction.”
Further, they argue that SB 1437 “did not restrict the Legislature’s authority to change the culpability requirement to convict for murder.” Therefore, in their opinion, “S.B. 1437 thus did not amend Proposition 115.”
Mr. Couzens has argued that SB 1437 unconstitutionally amended Prop. 115 and Prop. 7. But in a supplemental motion filed by Ron Johnson, he notes that Prop. 115 actually authorized the legislature to amend its provisions, but it requires two-thirds of the members of the Assembly and Senate to approve those changes.
Mr. Johnson, in addition, does not believe that SB 1437 unconstitutionally amends either proposition.
However, he notes that AB 991 made non-substantive amendments to PC 189 and was passed unanimously by both houses of the legislature and signed by the governor.
He writes, “Should the Court be inclined to find that SB 1437’s amendments to Penal Code section 189 were also an amendment of Proposition 115, then any potential constitutional infirmity in the Legislature’s passage of SB 1437 by less than two-thirds vote is cured by the passage of AB 991 unanimously by both houses of the Legislature and taken by a roll call vote.”
Thus the two-thirds vote required to amend Prop, 115 “has been met by the unanimous passage of AB 991.”
Mr. Johnson adds, “The status of whether SB 1437 is constitutional has been heard before several counties throughout California and has caught widespread attention. The Legislature is deemed to be aware that trial courts throughout California have been deciding whether SB 1437 was an unconstitutional amendment because it did not receive a two-thirds vote by the legislature and that passing AB 991 unanimously could impact the constitutionality question regarding Proposition 115.”
If Judge Richardson agrees, the next step could be to have a trial on whether Mr. Olague and Mr. Arellano qualify for re-sentencing under SB 1437.
If it goes to trial, the prosecution would have to prove beyond a reasonable doubt that both men were major participants in the case – as the state has already convicted Mr. Cervantes of being the shooter (though he too denies participation in the crime).
The new law, which came into effect this year, allows for the co-defendants to have their case be heard with regard to re-examining the evidence that led to their conviction in the first place.
—David M. Greenwald reporting
