Malice is a significant legal concept that underpins murder laws in California. It manifests itself in multiple forms. Express malice is a clear, unambiguous intent to kill. Implied malice is the opposite: the defendant may have had no intent to kill, but the nature of his behavior consciously disregards a risk to human life so grave that the law must hold that person accountable for their conduct when someone dies because of it. Imputed malice is the concept that while a defendant may not have been the actual killer, either because of his behavior, or the behavior of others with which he has begun a criminal enterprise, the conduct was foreseeable to end badly.
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Imputed malice underpins felony murder and the natural and probable consequences theory of murder. In 2004, the first shot in the War on Imputed Malice was fired by “gonzo journalist” Hunter S. Thompson when he championed the case of Lisl Almond, a Colorado woman who found herself in a shootout with the police in 1997. In the course of 8-hours or so, Almond, 21, had made a series of increasingly bad decisions that culminated with the death of two persons, one of whom was a Denver cop. As the surviving accomplice (but who had fired no shots), Almond was charged with felony murder of the police officer, convicted, and sentenced to 25 to Life. Thompson co-authored an article in Rolling Stone titled “Prisoner Of Denver” that profiled Almond’s case. Almond won her appeal in 2005 and was re-sentenced to time served for a burglary (the predicate felony) that was part of the series of poor decisions that kept getting worse and worse that fateful day.
Fast forward to 2018 and the California State Legislate passed Senate Bill 1437 (SB 1437) authored by State Senator Nancy Skinner of Berkeley. It was signed into law by Governor Jerry Brown in his final months in office. SB 1437 amended the statutes defining the crime of murder to eliminate, in all but one context, liability for murder based on the so-called “natural and probable consequences theory.” Under that theory, a defendant could be held liable for murder if (1) he aids and abets or conspires to commit some lesser crime, (2) the person he aided and abetted commits a murder, and (3) murder was a natural and probable consequence of the lesser crime. The bill also had the effect of limiting the use of felony murder charges for accomplices. SB 1437 changed the law so that a non-killer accomplice can only be charged with felony murder if that person displayed “reckless indifference to human life,” or if the homicide victim is a law enforcement officer.
The underlying intent of SB 1437 appeared to be a misguided attempt to “correct” the alleged Lisl Almond-like Felony Murder Horror Stories. Following the enactment of the law, Do Gooder criminal defense attorneys fanned out through the California prison system with pre-prepared forms for inmates to fill out contesting their murder convictions. For the next 5 years, the California Courts of Appeals were flooded with SB 1437 petitions, most of which were completely meritless because the defendant had been convicted under a theory of murder unaffected by the legislation. And for those who have gotten relief (or expect to get relief), a lot of them are far from saints.
Case in point: During the big Aryan Brotherhood RICO trial, Government witness Travis “The Perjurer” Burhop testified he expected getting SB 1437 relief because his second-degree murder conviction was based on the natural and probable consequences theory. Burhop was convicted of having recruited two men to shoot a dope fiend who had stiffed him on a drug deal in 1999; however, the shooters shot and killed the wrong guy and wounded the wrong guy’s girlfriend. Burhop dubiously testified he had no knowledge of the shooting until after the fact. But courtesy of SB 1437, a guy like Burhop—an admitted perjurer, big time interstate drug trafficker, and a former prison gang member who admitted to ordering at least eight prison stabbings—may get relief.
Real World Examples Of SB 1437 Relief
Perhaps the person who has gotten the shortest end of the stick from SB 1437 is Contra Costa County Deputy District Attorney Chad Mahalich. A gang crime prosecutor, Mahalich had three big cases overturned on appeal or substantially weakened courtesy of SB 1437. And these weren’t cases where the guilt of the defendants was in doubt; rather the law changed in their favor. Let’s review.
The Casino Case
On Saturday, May 4, 2013, Richmond Police received a Shot Spotter notification about a shooting at 7:12 a.m. on Chanslor Avenue in Central Richmond. Police arrived at the shooting location and found six expended 9 mm bullet casings and shattered car glass. Two blocks away, police officers found a white SUV that had crashed between two houses. The sole occupant of the vehicle, Rodell Sarmiento, 43 of Daly City, had sustained a fatal gunshot wound to the chest. The victim had $283 in cash on his body and another $1,720 in cash in the vehicle. It appeared to be a botched robbery.
Sarmiento had been gambling at the San Pablo Lytton Casino earlier that morning—a facility with ample video surveillance. The eye in the sky showed Sarmiento entered the casino with two women at 3:41 a.m. and exited with them at 6:46 a.m. He got into his vehicle and the two women got into a separate vehicle. The vehicles left the parking lot at 6:52 a.m. The casino is a 15-minute drive from Chanslor Avenue. Twenty-three minutes later, a police surveillance camera captured two vehicles including a car and a small truck traveling six blocks from the crime scene. One of the vehicles was the same one seen leaving the casino parking lot with the two women.
The investigation led to Brittany Bernard, 27, and Boonsy Manivan, 31. The Richmond Police got a search warrant for Bernard’s residence. They learned she had a child with Kevin Thongsay Vilayngeun, 33, a/k/a Thong. Vilayngeun was also a Sons of Death gang member. In addition, a small truck was parked outside the residence that matched the description of the one seen on the surveillance video near the murder scene.
The Richmond Police arrested Vilayngeun, Bernard, and Manivan in October 2013. They were transported to the Martinez Detention Facility in a Sheriff’s van mic’d for sound. Vilayngeun mentioned that the police had asked him about what aliases he went by. He admitted to his co-conspirators that he lied to police when he was asked if he went by ‘Thong.’ Bad move: Evidence of dishonesty can be used to show consciousness of guilt. Ironically, Vilayngeun also urged Manivan to remain quiet and that the cops would use their statements against them “They gonna like catch you...bite you in the ass later.” Manivan replied that the name Thong was used “in the texts.”
Vilayngeun, Manivan, and Bernard were tried for murder in September 2015. The jury convicted Vilayngeun and Bernard of first-degree murder and acquitted Manivan of all charges. Thong received a sentence to 50 years to life and Bernard received a sentence of 25 to life.
Thanks to SB 1437, Brittany Bernard was released from custody in December 2020. Bernard was given relief because the legislation eliminated liability for felony murder for those who were not ‘major participants’ in the crime. Because Bernard was in a vehicle away from where Vilayngeun shot Sarmiento, she could plausibly argue this was a “run of the mill robbery” that turned into a murder once Thong “deviated from the plan.” Never mind that Sarmiento would have never gone to Chanslor Avenue in the first place without being lured into Bernard’s honey trap.
The Bay Area News Group reported that Sarmiento’s daughter had the following to say during the December 2020 SB 1437 hearing:
“I had to accept at a young age that no one is looking out for me in this cruel world. The only way to succeed is to advertise yourself as a charity case or work harder than a person with a complete family…I understand I am young, but I know that justice — ‘Injustice anywhere is a threat everywhere,’ Martin Luther King said. If everyone has a right to their own dreams, I have a right to mine. Which is to see my father again, just for a second, just to remember his voice, because after a while the memories get lost in the outermost parts of my mind. Sadly this dream of mine is no longer possible. If so, please allow me to believe in our justice system again. Give me that at least.”
Chad Mahalich sought to appeal Judge Anita Santos’ ruling in favor of relief for Bernard but was denied by higher-ups in the DA’s office.
The Drug Block Takeover Case
The area around East 18th Street/Cavallo Road in Antioch is known as “The Bermuda Triangle Of Death” for all the bad things that have occurred there over the years. Not coincidently, this area is also a known Drug Block
In 2015, KUMI 415, an African American prison gang, attempted a Drug Block Takeover from Broad Day Killas, an Antioch street gang. Kartiae Ely was fatally shot on September 6, 2015, by Edward Clifton Robinson. William Pree, a self-admitted high ranking KUMI 415 member, drove the get-a-way vehicle. The shooting was witnessed by several people who later testified under oath. Pree’s phone contained a video of him admitting to taking over the Cavallo Road Drug Block.
Robinson and Pree were tried in 2017. Pree was prosecuted under the natural and probably consequences theory of murder. Mahalich’s theory was that death was a natural and foreseeable consequence of selling drugs in a dangerous area such as Cavallo Road. The jury agreed and convicted both men. But courtesy of SB 1437, Pree got relief in May 2023.
The Allie Sweitzer Case
On May 17, 2017, Alexandria ‘Allie’ Sweitzer, 20, of Discovery Bay and two friends went to Booker T. Anderson Park in South Richmond in the heart of the Manor Boyz gang territory. Sweitzer sold cannabis and had arranged a sale of 2 ounces to Teari Watts and Vincent Lising-Campos, both members of the Manor Boyz. An argument ensued over whether the bag contained the full 2 zips. Lising-Campos, 15, attempted to snatch the bag from Sweitzer and found himself in a tussle with her. He pulled out a handgun and shot Sweitzer. Her friends drove her to the hospital, but she later died of her injuries. The gang members fled the scene and were not caught for several months. Days before killing Sweitzer, Lising-Campos and Watts attempted to rob two Latino males and shot one of them non-fatally.
The Contra Costa County District Attorney’s Office charged Lising-Campos as an adult following his arrest. Then the law changed. Previously, prosecutors could request to transfer 14- and 15-year-olds to adult court if they were charged with a serious offense, such as murder, arson, robbery, rape or kidnapping. Under the new law, offenders convicted would be held in juvenile facilities instead of adult prisons. This meant that the most time Lising-Campos could do would be the years until he turned 25. And he would be held in the California Division of Juvenile Justice not CDCR.
Chad Mahalich refused to facilitate Lising-Campos plea deal. For his non-action on the Lising-Campos plea, Mahalich received a letter of reprimand from his supervisor in the DA’s Office, which he appealed to the County Merit Board. On August 13, 2019, the Merit Board elected to put his appeal on abeyance pending the conclusion of an investigation conducted by the Affirmative Action Officer.
SB 1437 gave Watts grounds to argue that the felony murder charge against him should be dismissed because he was not the actual killer and hadn’t attempted to snatch the dope. A judge upheld the felony murder charge since Watts was a major participant but called it a “close call.” On the eve of Watt’s trial, Mahalich negotiated a 16-year sentence on the reduced charge of manslaughter.
In sum, the net effect of SB 1437 on the Allie Sweitzer case was to give the likely mastermind a 16-year prison sentence. And there were no mitigating factors in favor of either Vincent Lising-Campos or Teari Watts. Both were violent gang members with no remorse.
So, it wasn’t surprising that Mahalich decided to make his case in the court of public opinion. Following Watt’s sentencing, the case was profiled by the Bay Area News Group on August 10, 2019, with the headline ‘We failed this family: California prosecutor blasts justice reform laws, politicians, at end of murder case.’
“We let down this family, and I want to take full responsibility,” Contra Costa County Deputy District Attorney Chad Mahalich said in his fiery courtroom statement Friday.
He later added: “This is the first time in my career where I can say I haven’t been able to do my job. … This sure doesn’t feel like justice.”
Mahalich’s remarks were aimed at SB 1437, which restricts when prosecutors can file murder charges against accomplices, and SB 1391, which prevents children younger than 16 from being tried as adults, even in murder cases.
Mahalich said former Gov. Jerry Brown, had “failed countless families” when he signed both bills into law and State Sen. Nancy Skinner of Berkeley had sold voters “a rotten bag of nothing” when she championed them.
SB 1437 was “one of the most ridiculous and nonsensical bills” that “has set free numerous convicted killers,” after it was passed by the Legislature “in their infinite wisdom,” Mahalich added, calling the bill “sloppily written.”
He blasted his office for not challenging the constitutionality of either bill, a decision made by Mahalich’s boss, District Attorney Diana Becton, whom Mahalich did not refer to by name.
“We failed this family. … I apologize for the terrible job my office did to this family,” he said.
Ultimately, Mahalich’s appeal was denied by the Merit Board by a 5-0 vote in November 2020. The Bay Area News Group quoted one Board member as follows:
“He took a stand and sometimes when you take a stand like that, there are consequences,” Dennis Reigle said. “This process doesn’t smell very good to me, but at the same time … the wording of the reprimand and the reasons for the reprimand were valid.”
Prior to voting to deny Mahalich’s appeal, the Merit Board members complimented him as a “really good lawyer” and thanked him for “protecting the public from criminals.”
Conclusion
Imputed Malice legal theories such as felony murder and natural and probable consequences are powerful tools and should be used with great discretion. SB 1437 has gotten a lot of really guilty people—Brittany Bernard, William Pree, Teari Watts, and potentially Travis Burhop—off the hook for crimes for which they undeniably had significant culpability. Keep that in mind next time you hear someone pounding the table about Criminal Justice Reform.