The typical battery is usually a misdemeanor violation. Whereas, if the person who hits another person, they could be charged with a misdemeanor battery (or, as commonly called, an assault and battery). On the other hand, if the touching or slap is on the rear end of a person or the touching is on the breast of a female, that simple battery can be transformed into a sexual battery. And the consequences become a lot more serious.

The big difference is the penalty involved. Unlike a simple battery, where the court can impose a fine or jail, a “sexual battery” has the potential penalty of LIFETIME SEX REGISTRATION! This additional potential punishment is optional with the court, but once imposed, sex registration can last a lifetime. This significant quirk in punishment for sexual battery rests with the overreaction by our state legislators. The registration requirement should be looked at; this is a misdemeanor and not a felony! Be aware of the consequences.

For instance, a case I handled some months ago, precisely how this new rule applies.

There were three defendants: the getaway driver and the two defendants who went into a bank and attempted to hold it up (no weapons). The police were called while the two defendants were inside the bank. They fled upon realizing the alarm was sounded. Defendant “A” ran away to an apartment and hid. Defendant “B” jumped into the passenger side of the getaway car. The police were right behind the getaway car as it drove away. Defendant “B” then jumped out of the getaway vehicle. The getaway driver then accelerated to avoid being arrested by the police. The defendant driver ran a red light at an intersection and struck and killed another driver who had the green light. Both defendants, “A” and “B,” went to trial and were convicted of murder, even though they were not involved in the driving of the getaway car.

The basis for their First Degree Murder conviction (25 years to life) was based upon the Felony-Murder Rule that existed at that time. Commit a felony, and someone dies, regardless, even if you were not present, you would be found guilty of murder in the first degree.

With the change in the law, SB 1437 modified the concept of the Felony-Murder Rule. The modification permitted both Defendants “A” and “B” to file a petition under P.C. 1170.95 to have their murder convictions set aside and be sentenced on the underlying felony of robbery. Although they committed the robbery of the bank, they had neither participation nor even knowledge of what the getaway driver did in evading the police.

SB 1437 REQUIREMENTS
(NOW CALLED 1172.6)

For a defendant to qualify for a reduction of his sentence under Proposition 1437 (Penal Code Sec. 1170.95):

The application of SB1437, which does exclude this remedy, if you are:

1. The Actual Shooter [[P.C. 189 (e)(1)]
2. With the intent to kill, the defendant aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual shooter in the murder of the first degree [P.C. 189 (e)(2)]
3. The defendant was a major participant in the crime with reckless indifference to human life. [P.C. 189 (e)(3)]

Penal Code section 188, as amended by SB 1437, states:
(1) For purposes of Section 187, malice may be express or implied.

(a) Malice is expressed when there is manifested a deliberate intention to take away the life of a fellow-creature unlawfully. (b) Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (c) Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on their participation in a crime.

As one can read, the modifications are not a “Get out of Jail” card since the defendant must meet the exceptions to qualify. Case law is coming out based on the two leading decisions, People v. Banks, 61 Cal. 4th 788 (2015), and People v. Clark, 63 Cal. 4th 522 (2016).

These two cases explain the depth and width of the application of SB 1437 to defendants who wish to take advantage of the change in the implementation of the Felony-Murder Rule. What is happening now are cases explaining the meaning of “reckless indifference to human life” and what are the boundaries of a “major participant” in a criminal offense?

You need an experienced attorney to review the case file and to file this petition. The attorney must be well-read in this field and be able to be truthful with the client as to his chances of prevailing with the court.