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‘I’ve Made My Share Of Wrongs, But I Haven’t Killed No One’

California amended its felony murder law, which holds accomplices responsible for murder. But reform won’t reach a man sentenced to death in a deadly robbery—even though he was never accused of firing a shot.

Prisoners at Chino State Prison exercise in the yard on Dec. 10, 2010 in Chino, California.Photo Illustration by Anagraph/Photo by Kevork Djansezian/Getty.

In December 1992, Sherry Collins and her 5-year-old daughter Randy sat in their car in the garage of the Acacia Park Apartments in San Bernardino, California, when two men walked up to the car windows. Randy later said that one man, identified as Mitchell Funches, stood by the passenger window, while another, Demetrius Howard, opened the driver’s side door. A struggle then ensued between Howard and Collins, presumably over her purse. As Collins tried to fight off Howard, her daughter crouched in the front passenger seat. Then she heard a blast, followed by shattered glass falling on her head. When San Bernardino police officers arrived on the scene, Collins was dead.

Collins’s murder came at a moment when law enforcement in San Bernardino County, a populous county near Los Angeles, was both assuaging and stoking public fears of rising violent crime rates. In 1990, the San Bernardino Police Department reported 41 murders, a rate of 25.0 per 100,000 residents, far higher than the 9.4 murders per 100,000 population in 1990 nationally.

San Bernardino would later become part of what advocates and journalists described as the “death belt” of Southern California, because of the high rate at which prosecutors sought capital punishment. According to the Death Penalty Information Center, San Bernardino was one of five Southern California counties that imposed more death sentences between 2010 and 2015 than 99.5 percent of U.S. counties.

In September 1993 there were 10 active capital trials in San Bernardino, and then-District Attorney Dennis Kottmeier told the San Bernardino County Sun that he was considering seeking death in two more. “That’s higher than I’ve ever seen it,” he said of the number of cases. “At any given time in the past the number pending seemed to be about six.” Kottmeier attributed the increase to higher violent crime rates as well as state new laws expanding the pool of death-eligible cases. In 1990, California voters passed a law that added five death-eligible felony murder crimes, including kidnapping. In 1993, carjacking was added to the list of death-eligible felony murder crimes. From 1990 to 1994, the state’s death row population rose to 461 from 279.

Historic change to homicide statutes, but hurdles for Howard remain 

After police apprehended Funches and Howard, San Bernardino prosecutors sought the death penalty for both men. They charged Funches with capital murder for shooting Collins through the passenger-side window; Howard was hit with a first-degree murder charge even though he was never accused of firing a shot. Under California’s felony murder doctrine, people can be held liable for first-degree murder if a death occurs during the commission of certain felonies, such as a robbery, even if an individual did not intend for a killing to occur. Nearly every state has a some sort of felony murder statute. Texas’s statute, called the “law of parties,” only requires that the state prove an accomplice may have “anticipated” that someone might die during the course of another felony.

In November 2018, attorneys for Joseph Garcia, a Texas man involved in a robbery that claimed the life of a police officer, petitioned the Supreme Court to reconsider the constitutionality of sentencing accomplices to death. The high court declined to hear the case and on Dec. 4 2018, Garcia was executed.

Twenty states allow people to be sentenced to death for murders they did not commit, nor intend to commit. In 1987, the Supreme Court ruled that sentencing felony murder defendants to death does not constitute cruel and unusual punishment, citing “societal consensus that that combination of factors may justify the death penalty even without a specific ‘intent to kill.’” Capital defense attorneys and advocates say it is time to reassess that ruling. “The states may authorize the death penalty for certain things—but that doesn’t make it constitutional,” said Robert Dunham, executive director of the Death Penalty Information Center.

Late last year, California lawmakers narrowed the state’s felony murder law under Senate Bill 1437, which prohibited a participant in the perpetration or attempted perpetration of a  felony in which a death occurs from being liable for murder, unless the person was the actual killer, solicited the killer, or acted with reckless indifference to human life.  The new law went into effect on Jan. 1. SB 1437 is “hugely significant,” said Kate Chatfield, policy director of Re:Store Justice, a nonprofit that advocated changes in the felony murder statute. “This is changing California homicide statutes that have been in place since the 1850s.” The law is retroactive, making an estimated 800 getaway drivers, lookouts, and corner boys serving decades-long or life sentences eligible for a retrial.  “If the law is unjust today, it was unjust yesterday,” Chatfield said. “So now we can reach back and pull them out of prison.”

Just weeks after SB 1437 went into effect, vacated murder convictions have already come for accomplices, but the law will not offer relief for Howard because a San Bernardino jury sentenced him to death. (Funches was tried separately and received a life without parole sentence because the jury could not reach a verdict in the penalty phase.) The standard for an accomplice to remain eligible for the death penalty remains being found to be a “major participant in the underlying felony” who “acted with reckless indifference to human life.” To help prisoners like Howard, California’s death penalty law would need to be changed to exclude people who did not commit the murder in which they were charged.

An appeal may bring new life to Howard’s death penalty case 

Since his 1995 death sentence, Howard, now 51, has lived on San Quentin’s death row where prisoners often spend 23 hours a day, alone, in a cell about one-quarter the size of a parking spot. They are allowed to see the sun and breathe some fresh air for about 10 hours per week, but while standing in an outdoor cage. When a reporter from San Francisco NPR affiliate KALW visited San Quentin’s death row in 2013, Howard explained how he had made his cell habitable: He covered its fluorescent light with a piece of paper to dull its harsh glow, and used essential oils to perfume his space. “They allow us to order them through the different religious programs they have set up,” he said. “So it’s something to keep you still connected to the world because you in an environment where you closed in.” Funches, meanwhile, lives in the general population.

Howard’s attorney filed a habeas petition with the California Supreme Court, the second stage of the appeals process that allows defendants to raise issues that weren’t addressed in the original trial. While SB 1437 will not help Howard, his attorney with the Habeas Corpus Resource Center could cite a California Supreme Court ruling in 2015 and argue that Howard should be charged for the role he played in the killing, not in the underlying felony (attempted second-degree robbery).  Advocates like Chatfield hope for further revisions to California’s felony murder statute. If “I hand you a gun and I say ‘Kill the bastard,’ technically I’m not the shooter,” said Chatfield, “I can’t see big changes coming down the path for that. But some counties were charging people with murder without any regard to whether they did the actual murder.”

Howard, meanwhile, continues to maintain his innocence. “Even guards … around death row assumed I must have killed 3 or more people to be on death row,” he wrote in a Jan. 10 letter to The Appeal. “I am no saint or some angel. I’ve made my share of wrongs, but I haven’t killed no one, told anyone to kill someone. But for 27 years now have had to endure so much mentally, spiritually, physically, emotionally even. Despite all I’ve been tested with I remain resilient and have not lost faith in people though I easily could have.”