Law that could free accomplices of murder ruled unconstitutional by SLO judge

A San Luis Obispo judge has ruled that a new law that could free hundreds of people convicted of murders they didn’t personally commit flies in the face of past voter initiatives and is unconstitutional.

Superior Court Judge Tim Covello made his ruling June 27 in two cases, including a 28-year-old murder case, and is the first local judge to agree with the District Attorney’s Office’s opposition to petitions for re-sentencing from more than a dozen people convicted of murder in San Luis Obispo County.

Despite Covello’s ruling, two other local judges have already deemed the new law constitutional in nearly half of 18 local cases. Those cases will continue forward on their merits later this month.

Though people across the state have already been released under the law, the District Attorney’s Office and several local attorneys involved in local cases say the local judicial split is representative of county courthouses across the state.

Though Assistant District Attorney Eric Dobroth said Wednesday the path forward isn’t immediately clear, the matter will most certainly end up before the California Supreme Court.

What is SB 1437?

Former Gov. Jerry Brown signed Senate Bill 1437 last September, limiting prosecutors’ ability to use a so-called “felony murder rule” to charge accomplices to a homicide.

Prior California law said someone could be held criminally liable for first- or second-degree murder if a person died during a felony they committed, such as a burglary or a robbery, even if the defendant was not present for the actual death.

Under SB 1437, a person can be convicted of murder only if he or she “was the actual killer” or “aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer” or “was a major participant in the underlying felony and acted with reckless indifference to human life.”

While some chose not to oppose the new law, many District Attorneys offices across the state have been challenging the petitions in local courts on the grounds that the law is unconstitutional because it goes against the will of the voters from 1978’s Proposition 7, which increased penalties for murder, and 1990’s Proposition 115, which added crimes applicable to a murder charge.

Local prosecutors argued in past hearings that the petition process violates the state’s separation of powers — with the legislature encroaching upon the judiciary — and Marsy’s Law, which created a victims’ bill of rights to prevent unnecessary suffering on the part of victims and their families.

A case list provided by the San Luis Obispo County District Attorney’s Office showed that, as of Wednesday, 18 people had petitioned for re-sentencing in the county, including two men who have already been separately paroled.

In April and May, Superior Court Judges Jacquelyn Duffy and Craig van Rooyen — who, like Covello, are former prosecutors with the local DA’s Office — heard arguments in six cases and were the first to weigh in, finding the law constitutional.

San Luis Obispo Superior Court Judge Tim Covello Joe Johnston

In the case of 50-year-old Gerardo Estrada, sentenced to 25 years to life for a 1986 burglary and assault that resulted in the death of an 84-year-old man, van Rooyen called the matter a “complicated issue,” but found that the new law does not prohibit anything authorized by ballot initiatives passed by voters, and that past initiatives did not “freeze” state law related to murder with those initiatives.

In addition to those six cases, two petitions were denied because the judge found the men were the actual killers, and Judge Dodie Harman is expected to make a ruling in three other cases July 10.

One of the 18 petitions was received Tuesday, Dobroth said, but the status of the remaining cases were not immediately available Wednesday.

‘Legislative encroachment’

But Covello had a different take in his ruling in John Palmer’s case.

John Louise Palmer was 17 years old when he pleaded guilty to second-degree murder in 1992 for the fatal stabbing of his grandmother, 67-year-old Roxana O’Grady, during a burglary at O’Grady’s Cayucos farmhouse on Toro Creek Road.

OGrady archive.jpg
A Tribune clipping from September 1991 shows murder victim Roxanne O’Grady and attack survivor James Negranti. MFOUNTAIN@THETRIBUNENEWS.COM

Palmer and a co-defendant testified that they were burglarizing the house when a third member of their group, 38-year-old transient Frank Krafick, stabbed O’Grady and injured 67-year-old James Negranti, 76, who survived but later died from unrelated health problems.

Palmer, now 44, was sentenced to 15 years to life and was serving time at Mule Creek State Prison in Ione before being transferred to California Men’s Colony to be near local proceedings.

Matthew Kraut, Palmer’s defense attorney who until May 2018 had worked as a prosecutor with the DA’s Office for 20 years, argued in court documents that there was an overwhelming amount of evidence to show that Palmer did not kill his grandmother nor have any reason to believe Krafik would become violent.

Taking on the District Attorney’s argument, Kraut wrote that SB 1437 in no way changes punishments enacted by propositions 7 and 115.

“Simply put, the punishment for murder conviction remains unchanged by the passage of Senate Bill 1437,” Kraut wrote.

But Covello wrote in his ruling that the law does violate the will of the voters in propositions 7 and 115 and the state’s separation of powers by allowing the legislature to interfere with the judiciary.

He wrote that the law would require the court to conduct “quasi-appellate review” of a person’s conviction or force the prosecution to prove the case beyond a reasonable doubt, “in this case, a quarter of a century after the crime was committed and the final judgment entered.”

Furthermore, in a case like Palmer’s involving a plea bargain, there is no trial record for prosecutors to go on, Covello wrote. As such, they can’t prove whether Palmer actually participated in the killing, was the mastermind, supplied the murder weapon or had intent to injure or kill.

“These facts (or lack thereof) illustrate that (the petition process does) not merely touch ‘incidentally’ on the powers of the court,” Covello wrote. “When a legislature mandates a court to set aside a lawful plea bargain, vacate a 27-year-old judgment, re-adjudicate that controversy under an entirely different legal standard, and then further mandates an unconstitutional process for that re-adjudication, they have arrogated unto themselves the core functions of the court, and materially impaired the proper functioning of the judicial branch of government.”

He added: “If this is not a legislative encroachment upon the authority of the judicial branch in violation of the separation of powers clause of the California Constitution, this court can think of no legislative action that would constitute such an encroachment.”

Kraut said Wednesday that Palmer and his family are very disappointed at the denial of Palmer’s petition but they respect the judge’s ruling.

Kraut added that he intended to file Palmer’s appeal Wednesday afternoon.

Hearings for remaining murder petition cases will continue to be heard throughout the coming months.

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