On Friday San Francisco Judge Brendan Conroy granted a motion to resentence Anthony Scrivani, who had received a life sentence in 1992 under the felony murder rule for his role in the robbery and murder of a San Francisco man.
But under SB 1437, the laws under felony murder have changed, and Judge Conroy ruled that, while Mr. Scrivani was an active participant in the robbery, he was not the actual killer and he did not act in reckless indifference to human life.
As a result, the judge resentenced the man to six years in prison and placed him on parole for year. Mr. Scrivani has not been released from CDCR at this point, but he should be shortly.
The Vanguard spoke on Monday to his attorney, and Peter Fitzpatrick said he got involved in this case shortly after Mr. Scrivani filed his petition last year.
The DA’s office opposed the release, arguing that Mr. Scrivani was a major participant acting in reckless indifference to human life and therefore he wasn’t entitled to resentencing under the law that took effect January 1 last year.
“She thought that his conduct amounted to reckless indifference because he planned to do a robbery of resident with a cohort who was armed,” he said.
However, Mr. Fitzpatrick differed. He said, “The law as it’s been interpreted by the courts… said that his conduct in this case was (not) enough to rise to the level beyond a reasonable doubt to 
reckless indifference.”
Following the filing of the petition, the judge had to determine whether there’s prima facie evidence to get a hearing on it.
“In our case he said that there was – that it was acknowledged by everyone that my client wasn’t the shooter. Then you have a hearing about whether or not the legal standard to deny him resentencing has been met.”
The burden here remains on the prosecutor to prove that the individual is not entitled to re-sentencing.
Ultimately, according to Judge Conroy, that was a burden the prosecution could not meet.
The two men plotted and planned a robbery of a man. They knew the victim. Mr. Scrivani was not armed and did not plan to use lethal force – however, he knew Mr. Patterson was armed.
One of the key elements here is whether Mr. Scrivani knew that Mr. Patterson was dangerous and wont to act in reckless indifference to human life. Merely having awareness of being armed is not sufficient. He has to be aware of the co-defendant’s violent tendencies and a plan to kill. Neither condition was met here.
Nor did Mr. Scrivani, the judge reasoned, facilitate the death. He was simply present during the crime. But the death actually took place away from his presence and without his knowledge.
Mr. Scrivani was close by, he was rifling through the van and he did witness the co-defendant kicking and dragging the victim. He was searching for money in the trailer as the co-defendant broke a window and then shot and killed the victim.
He was not far away, but he was not at the killing. The judge believed he could have intervened in the beating and the dragging, but not the killing.
Mr. Scrivani took off after he heard the shot. He attempted no aid and did not alert the police, the judge said. But he did play a role in resolving the case. He would plead to the second degree murder and assist the prosecution against Mr. Patterson.
Judge Conroy found Mr. Scrivani to be a major participant in the underlying felony in that he planned and participated in the robbery. However, he did not believe he acted with reckless indifference – he noted that merely knowing someone is armed is not sufficient. You have to know that something is out of order and the judge said there was no evidence in Mr. Patterson’s background that would lead to that conclusion.
In 1992, Mr. Scrivani had pleaded guilty to second degree murder. He has always denied being the shooter. Mr. Patterson, the man who was the actual killer in this case, had also pleaded guilty. Therefore neither man faced a trial in this case.
That Mr. Scrivani was not the shooter was never questioned in this process.
“My client cooperated (with police) right at the beginning and told them what happened. There was nothing that disproved that. No one ever questioned it,” he said. “No ever tried to say it was my client.”
The entire question hinged on whether the conduct during the robbery and the knowledge of Mr. Patterson having a weapon amounted to reckless indifference.
Mr. Scrivani saw the victim being dragged and beaten, but he didn’t see the murder.
“My client was in a different location from where the murder happened,” Mr. Fitzpatrick explained. “You couldn’t see from my client’s location what was leading up to the actual murder.”
He added, “From where he was, he couldn’t see whether the gun was out or anything like that.”
Based on this evidence, Judge Conroy granted the motion for re-sentencing. Under the law in 1992, residential robbery was a three to six year sentence in state prison. He had been sentenced to a life sentence in 1992.
Judge Conroy resentenced him to six years in prison, which time has long since elapsed. He did order him to one year of probation – he reasoned that the felony murder law allows for parole upon resentencing, even though under normal conditions that parole term would have been used up in the excess years on top of the six.
—David M. Greenwald reporting
