By Yuanqi Ivy Zhou
SANTA CLARA – The Sixth Appellate Court has accepted the petition of appellant Malik Alaybue to vacate his murder and attempted murder convictions, concluding that “Senate bill 1437 is constitutional [in compliance with Proposition 7 and 115] and does not apply to the offense of attempted murder.”
In November of 2006, Alaybue, age 18, pleaded to two cases of second degree murder and another two cases of attempted murder, as well as gang allegations for each case. Alaybue was sentenced to an indeterminate 15 years to life imprisonment for second degree murder along with
However, 13 years later on September 30, 2018, then California Governor Jerry Brown signed Senate Bill 1437, which limited who can be prosecuted for felony murder. This law benefits convicted criminals who are “not actually the killer, did not act with the intent to kill, or were not a major participant.”
Upon the passage of Senate Bill 1437, Alaybue’s lawyers petitioned the trial court to vacate his murder and attempted murder convictions. The trial court denied this petition, arguing that Senate Bill 1437 is unconstitutional.
SB 1437 amends Proposition 7, an initiative to increase punishment for first and second degree murder, as well as Proposition 115, an initiative that to allow non-killers to be convicted as felony murderers. The trial court also asserted that the petition violates the principles of separation of powers.
However, in June of 2020, Alaybue appealed to the Sixth Appellate Court, insisting that “Senate Bill 1437 does not amend Proposition 7 and 115, does not violate the separation of powers doctrine, and applies to attempted murder convictions in an attempt to entitle the appellant to resentencing for his charges”.
The appeals court decided on June 25 to reverse the trial court’s decision and consider the appellant’s petition for only the murder convictions.
The appellant argued that Senate Bill 1437 is inherently constitutional on the basis that it was passed based on the people’s initiative powers in line with the 2010 Supreme Court decision, People 
v. Kelly.
Proposition 7 is an initiative that increased punishment for first and second degree murder and expanded the list of circumstances for the death penalty.
The appeals court determined that Senate Bill 1437 has no relevance to Proposition 7 because the measure alters the definitions of first and second degree murder and has nothing to do with attendant punishment.
Since there is no alteration in attendant punishment which is the main voter intention of the proposition, Senate Bill 1437 is considered as a bill that does not amend Proposition 7, the court reasoned.
Proposition 115 is an initiative that added elements considered as first degree felony murder, including kidnapping, train wrecking, and certain sex offenses.
As a rebuttal to the District Attorney’s argument that Senate Bill 1437 amended Proposition 115, the court argued that the bill “did not add to or otherwise modify the list of predicate felonies leading to felony murder liability. Rather, it addressed accomplice liability for felony murder.”
The court added that since the bill had nothing to do with the alteration of types of felony and only addressed the charges for felony murder, there is no clash between Senate Bill 1437 and Proposition 115.
The District Attorney insisted that Senate Bill 1437 violates the separation of powers clause by “interfering with the executive’s prosecutorial functions and the finality of judgement.”
But the court agreed that both the legislative and judicial branch exercised their respective power in this case, and that the legislative properly holds the power to charge the criminal in question.
The court said after this prosecution, the judicial system holds its power to reconsider the case upon the criminal’s appeal to a higher court. Thus, a resentencing of Alaybue’s case does not issue a conflict between legislative and judicial duties.
Last but not least, the court ruled that Senate Bill 1437 does not apply to attempted murder because “an attempt is an offense ‘separate’ and ‘distinct’ from the completed crime”.
Furthermore, the appellate considers the circumstances “absurd” that those who attempted murder have to endure the same sentence as those who committed first degree or second degree murder. The difference between the two is a 5-9 year sentence and a 15-life sentence.
For these reasons, the appeals court determined that Senate Bill 1437 is constitutional, does not violate Propositions 7 and 115, does not violate separation of powers, and does not apply to attempted murder.
And Alaybue is allowed to reopen the case to re-discuss his murder and attempted murder convictions.
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