The so-called felony murder rule that treated an accomplice to a murder as if he or she was the actual murderer was amended in 2017 so that an accomplice could only be convicted as the murderer when malice aforethought is shown. In practical terms, this means that an accomplice to a murder who was not the actual murderer and who did not plan or anticipate the murder, cannot be held liable for the murder. Previous to this amendment, that was not the case.

Example: Sherry and her boyfriend plan an armed robbery. Sherry’s role is to drive the car to the location, wait for her boyfriend to commit the robbery, and after that is accomplished to drive her boyfriend away from the location. In other words, she was the “getaway driver.” There was no evidence that the plan might include murdering the robbery victim. But as it turned out, the robbery victim had a gun and as he reached for it, Sherry’s boyfriend panicked and fatally shot the victim. Under the old felony murder rule, Sherry would be just as culpable for the murder as it was a “natural and probable consequence” of an armed robbery. Under the amended law, Sherry could not be convicted of the murder unless the evidence showed that she had prior knowledge and/or intent (a plan) that the murder could or would occur.

Effective January 1, 2018, a new law (Penal Code section 1170.95) gave those who had been convicted of felony murder or murder under a natural and probable consequences theory the opportunity to file a petition with the superior court for resentencing under certain circumstances. Many defendants convicted of murder under the old felony murder rule filed a petition for resentencing. But the appellate courts interpretated the relief available under Section 1170.95 as applicable only to those convicted of murder. This left out, for example, defendants who were initially charged with murder under the old rule, but who entered a plea bargain for a reduced charge on manslaughter or who were convicted on attempted murder.

Recognizing this inequity, the Legislature recently passed a bill that will close what is being called a loophole in the felony murder resentencing scheme. Senate Bill 775 was recently signed into law and will go into effect on January 1, 2022. The bill is not a new law but rather clarifies the intent of Section 1170.95. The law as amended will include those defendants who were convicted of attempted murder or manslaughter, whereas before the law only applied to those convicted of first- or second-degree murder.

What this means in practical terms is that anyone who was convicted of murder, attempted murder, or manslaughter under the natural and probable consequences doctrine is entitled to resentencing relief. It is estimated that the expansion of this relief will apply to up to 2,000 defendants who were not eligible to apply for relief under the previous version of Section 1170.95.

The key to a successful petition under this law is a showing that the defendant, who was only an accomplice but not the actual killer, had no malice aforethought, i.e., no intent to kill.  In my experience, it is often a girlfriend or a young person who is manipulated as an accomplice and who didn’t understand or fully participate in the crime. Although the accomplice may have understood that the crime could turn violent, they did not plan or consider with others that a murder would happen.  For someone like that to be serving the same prison term (and sometimes even longer) as the actual killer creates an imbalance in the justice system. Section 1170.95 seeks to address that imbalance.

Orange County criminal defense attorney William Weinberg is available to discuss petitions under Section 1170.95 or any other criminal matter you currently face. He offers a free consultation to discuss your options and defense. You may contact him at his Irvine office at 949-474-8008 or by emailing him at