Neko Wilson says he got cold feet that day nine years ago. He was 27, and had originally gone to Kerman, a city in Fresno County, to case a marijuana grow house with a few other people. He says he backed out when his partners decided to rob the house and circled the block instead, trying and failing to contact the group.
Later, he found out that one man in the group killed the couple in the house. Court documents say Wilson had not entered the house or even left his car. But two weeks later, officers from the Fresno County Sheriff’s Office arrested him and charged him with two counts of murder. The officers used the felony murder rule, a California law that says people can be held criminally liable for murder if a death occurs during a felony, like a burglary or robbery, even if the person wasn’t present.
Now California lawmakers appear poised to change the decades-old law, and Wilson, who has spent nine years in Fresno County Jail awaiting trial, may soon have the chance to walk free.
Senate Bill 1437, introduced by Sen. Nancy Skinner, D-Berkeley, passed the Senate in May with support from both Democratic and Republican lawmakers. It would limit the application of the felony murder rule by stating that 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.”
Skinner said that the felony murder doctrine disproportionately affects vulnerable groups.
“The law is not fairly applied,” she said. “If it were universally applied to any and every person that was in or around a crime that resulted in a homicide, then many more people would have been charged with felony murder and the statute would have been changed a long time ago. What we see from data is that it’s young people, low-income people and people of color who are black and brown that are more often charged with felony murder.”
A recent survey of 1,000 prisoners conducted by the bill’s supporters concluded that the felony murder rule disproportionately affected women and young people. Of the women convicted of first degree murder under the felony murder rule, 72 percent were not the perpetrators of the homicide, according to the survey.
Skinner’s proposed change would be retroactive, allowing those imprisoned to seek new hearings by proving their actions did not fall into the new definition of the law. Prosecutors would have to prove otherwise, or allow re-sentencing.
Supporters estimate that between 400 and 800 people are serving sentences for felony murder and could apply for re-sentencing.
The bill, which is pending in the Assembly, easily gained the support from majority Democrats in the Senate. Two conservative Republican senators, Joel Anderson of San Diego and John Moorlach of Costa Mesa, also voted for it.
Anderson says the bill merely assigns blame to the correct people. Murderers and shoplifters committed different crimes and therefore should be punished differently, he said.
“This bill sets out to separate the two, to give real justice to those who weren’t active participants in the murder of another,” Sen. Anderson said on the Senate floor.
The bill still faces intense opposition from prosecutors and police organizations, who say it allows people who have committed crimes leading to a death to potentially go free without accepting responsibility for the death.
“A robbery that results in a death is worse than one that doesn’t,” said Cory Salzillo, the legislative director for the California State Sheriffs Association. “…There is a culpability that should attach when a person participates in a crime and a homicide is the result of that crime.”
Victim advocacy groups also argued that the bill’s language was too broad, providing no difference in treatment between violent felonies and nonviolent felonies.
Nina Salarno, the president of Crime Victims United, said that although the group supports some changes, the bill went too far to reduce sentencing for felons.
“The difference between serious and violent felonies and other felonies is a huge issue,” Salarno said. “You’re treating a home invasion in the same way as a felony car theft with nobody involved. There’s a huge distinct difference between robbing a car in a parking lot with nobody in it and a home invasion. If you’re an accomplice to a home invasion, you should bear responsibility for the injury and death of people.”
A legislative analysis estimated it could cost millions for the courts to process the re-sentencing requests, but also stated that shorter sentences could save millions annually. According to state budget estimates, each state prisoner will cost taxpayers more than $80,000 this year. Prosecutors have noted that many people are serving time under the law because of plea bargains, which will leave few or no court records to reference during the re-sentencing process.
The felony murder rule has been debated for decades. In 1983, the liberal-dominated California Supreme Court urged the Legislature to abolish the rule, writing in People v. Dillon that it “anachronistically resurrects from a bygone age a `barbaric’ concept.”
Jacque Wilson, Neko Wilson’s brother and a public defender in San Francisco, said that the bill is Neko Wilson’s chance to reunite with his family.
“He hasn’t seen his daughter in nine years,” Jacque Wilson said. “She was three and now she’s 12. It’s another tool of mass incarceration that is devastating poor families and people of color. It’s ripping families apart.”