SAN FRANCISCO – When San Francisco Judge Brendan Conroy announced that he has granted the motion for re-sentencing under SB 1437, and gave Anthony Scrivani a new sentence of six years rather than the life term he was serving, the man who has served in prison since 1992 broke down in court crying.
On Friday, Judge Conroy issued his ruling and he walked through the crime and the defendant’s role in slow, painstaking detail. Under SB 1437, the burden is on the prosecution to prove beyond a reasonable doubt that the defendant is not eligible for resentencing. In this case since it was determined that Mr. Scrivani was not the actual shooter – Mr. Patterson, the co-defendant, was – and the prosecution was left to prove that Mr. Scrivani was a major participant who acted in reckless indifference to human life.
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.
The judge 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 something more than that and the judge said there was no evidence in Mr. Patterson’s background that would lead to that conclusion.
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 has long since lapsed. He did order him to one year of probation, reasoning that the felony murder law allows for probation upon resentencing even though under normal conditions that probation term would have been used up in the excess years on top of the six.
He did rule that any fines were satisfied by the additional years and ordered Mr. Scrivani to report to probation within 24 hours of release.
Judge Conroy told a weeping Anthony Scrivani that the 1437 law “is a second lease on life… Please don’t squander it.”
—David M. Greenwald reporting
