Hundreds In San Diego Hoping For Reduced Sentences For Murders They Didn’t Commit
Thursday, August 8, 2019
Credit: Colleen Khalifa
This is the first story in a two part series. Read part 2 here.
On Jan. 27, 2004, Shawn Khalifa made the biggest mistake of his life.
He was just a few days past his 15th birthday and went along with some older teenagers from his neighborhood in Perris, California, near Riverside, to burglarize a home.
"I thought maybe I could steal something from the house," Khalifa said.
He and a friend were lookouts while the two other boys went into the house, according to court documents.
"And a few seconds later the door opens, and the 18-year-old kid, Juan Pena, he grabs me by the shirt and pulls me in the house," Khalifa said. "And he's yelling, he's like, 'is this what you wanted to see?' So I look over to where he's pointing and Mr. Love is dead on his living room floor."
The two boys had "savagely tortured and beat 77-year-old Hubert Love to death," according to court documents.
Then they stole his car and sped away. In the car, Fernando Rivera shot Pena, his main accomplice, in the head.
Khalifa swears he had no idea his friends could commit such heinous acts. But he kept quiet. He now says it was because he feared for his own life after seeing one friend murder the other. However, he also takes responsibility for getting into that situation. And, looking back, Khalifa admits he was a thief and ran with a bad crowd.
"I was very selfish at that time, and my 15 year old self, I was clearly becoming a criminal in my neighborhood, I was stealing, I was comfortable with stealing," he said. "And so for me to be comfortable with leaving Mr. Love on the floor, clearly something was wrong with me, I had a criminal way of thinking."
KPBS reached out to Love's family and did not hear back. Khalifa was convicted of first-degree murder — even though he had no prior knowledge of the killings and wasn’t in the house when they were committed (the other boy who was with him cooperated with prosecutors and got a far lesser sentence).
Khalifa was sentenced to 25 years to life, spent three years in juvenile hall and then was transferred to prison. He's now at Donovan State Prison in San Diego.
He is serving this sentence because of California's felony murder rule, which allows a defendant to be charged with murder for a killing that happened during a dangerous felony, even if the defendant is not the killer.
This year, California became one of the few states in the country to pass legislation limiting felony murder convictions. The new law, SB 1437, written by state Senator Nancy Skinner, says people can't be convicted of murder unless they were the actual killer, helped the killer, or "acted with reckless indifference to human life."
For example, someone who participates in a robbery where a clerk is killed and shoots a gun in the air multiple times but doesn't hit the clerk — that could qualify as "reckless indifference to human life," said Kate Chatfield, an advisor at the criminal justice advocacy organization The Justice Collaborative, who helped write the new law. It also doesn't apply when a police officer is killed.
The new law also says people sentenced under the felony murder rule can apply for resentencing.
"SB 1437 is not a get out of jail free card for people who are in prison," Chatfield said. "They have to petition the superior court in the county in which they were sentenced."
Chatfield said there isn't a good tracking system, but she estimates up to 800 people in California could be eligible for reduced sentences under the law.
But the law has powerful opponents who are challenging it in court.
District attorneys statewide, including San Diego District Attorney Summer Stephan, have filed petitions arguing SB 1437 violates California's mandatory minimum sentencing law. The Fourth District Court of Appeals took two of those cases and is expected to hold oral arguments on them in the coming months.
Stephan said her office has received 182 petitions for reduced sentences because of the rule change, but those are on hold. She said limiting the felony murder rule opens a loophole that savvy killers will exploit.
"The more sophisticated they are as a killer, the more they're going to get away with murder," she said. "If they all wear masks and you can't determine who shot the gun," she said everyone present could get away with murder.
Stephan said her office has cases like this, but didn't want to identify them. So she gave what she said is a hypothetical example.
"A man and a woman go into an elderly person's apartment, they are there to burglarize, but they stab the victim more than 60 times, they murder her as she pleads for her life," she said. "If both people don't give statements, both of the individuals who terrorized and took away the life of this elderly people, both can walk away with a maximum sentence of six years, which is the sentence for burglary."
State Sen. Nancy Skinner, a Democrat from Berkeley, who wrote the law, said Summer's example described a case where the only evidence is eyewitness testimony.
"We already know eyewitness testimony is unreliable, and if you don't have any other evidence, that is a pretty weak case," Skinner said.
And Summer's example doesn't describe what Khalifa did. He helped a robbery that turned into a murder.
There are other ways people like him can get reduced sentences, Stephan said.
"They could petition for resentencing if they truly had a lesser role," she said.
San Diego is the first county to cut someone's sentence under another new law that took effect this year, she said.
But Khalifa has asked state courts and the courts in Riverside for a lesser sentence multiple times, and has been denied. His sentence was commuted by Governor Jerry Brown last year, allowing him to apply for parole, but then his parole was denied.
Khalifa said when he applied for parole, he struggled to show remorse for the murder because he didn't actually kill anyone.
"There was no option to recognize just my role in the burglary," he said. "I had to try to develop remorse for something I didn’t actually do."
Part two of this series will look at what it has been like for Khalifa to grow from a boy into a man behind bars.
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