If David Deming had his way, Andrew Clayton would have been executed by now. Instead, Clayton could be getting out of prison about a decade early.
Clayton, one of two men convicted in the 2000 slaying of Deming’s son Christopher, is hoping a new state law could be his path to freedom.
“How in the hell could he get out in less than 20 years?” said Deming, 65, a demolition contractor in Sonoma.
The law, SB 1437, was signed by Gov. Jerry Brown in September. It aims to allow certain prisoners to get murder convictions vacated if they were lesser figures in homicides, not the “actual” killers. Then they can apply for resentencing.
Clayton, 48, is the first convicted killer from Marin to seek a reduced sentence under the law. Dozens of similar petitions could flow into Marin County Superior Court in the coming months.
“There was no plan to kill anyone and Clayton wasn’t the shooter,” said Clayton’s lawyer, Tara Higgins. “He should be released from prison and spend his last remaining days on this planet as a free man spending time with his daughter and granddaughter.”
The crime happened in January 2000 at a residence on Indian Valley Road in rural Novato. Clayton went there with Richard Ross Calkins to steal methamphetamine and cash from the resident, Matthew Cady.
The armed robbers intended to surprise Cady, but they tripped a motion sensor. Cady and his guest — Christopher Deming — confronted the intruders.
In the ensuing bedlam, Deming, 28, suffered a fatal gunshot wound. The bullet came from a handgun registered to Clayton.
Calkins, then 31 years old, took a plea deal and agreed to testify against Clayton. He is serving a 28-year sentence for a manslaughter conviction.
Clayton went to trial. The jurors convicted him of first-degree murder, attempted robbery and burglary — but could not agree on whether he intended to kill Deming or personally fired the fatal shot.
The trial judge sentenced Clayton to 35 years to life in prison. He must serve at least 85 percent of his sentence before a chance at parole.
Clayton is incarcerated at Folsom State Prison. As it stands now, he is eligible for potential parole in September 2030, according to the state prisons department.
But if his SB 1437 claim is successful, the murder conviction would be vacated and he could be released with time served on the other charges.
Before SB 1437, Clayton’s mere participation in the homicide was enough to tag him with a murder conviction. Under the new law, he is eligible for relief because he was not convicted of actually firing the fatal shot, his lawyer said.
“The jury hung and DA moved to dismiss the special allegation that he fired the gun that killed Deming,” Higgins said. “Accordingly, he remains innocent of this allegation. As far as Mr. Clayton’s actions this was simply an armed robbery case.”
The Marin County District Attorney’s Office is fighting Clayton’s petition. Chief Deputy District Attorney Dori Ahana, in court filings, argued that SB 1437 is unconstitutional.
Ahana said the new law conflicts with Proposition 7, the 1978 initiative that toughened the penalties for murder. Ahana said SB 1437 is unlawful because it amends Prop. 7 without voter approval and without a two-thirds majority in the Legislature.
Ahana also argued that SB 1437 violates the separation of powers between the branches of government. Lastly, she said it violates Proposition 9, the Victims’ Bill of Rights Act of 2008, which aims to protect the families of murder victims from prolonged suffering.
The matter is before Judge Paul Haakenson. He held a hearing about the constitutional question on June 6, but he did not issue a final decision. The lawyers expect it within the next few weeks.
David Deming said SB 1437 should be of interest to everyone, not just the families of murder victims.
“The people have to be aware of what’s going on,” he said. “Some time in their life, they’re going to cross paths with these people.”
“It’s a serious thing,” he said. “We could have lots of felons running around.”
That might not be the case, said Hadar Aviram, a professor at the University of California Hastings College of the Law in San Francisco. She said the state’s reform of the three-strikes law did not produce the wave of violent crime that many feared.
“People’s criminality sort of fades,” she said. “People age out of street crimes.”
Aviram added that the prisoners who will be helped by SB 1437 were people who were “marginally involved” in the first place.
In these early days of SB 1437 litigation, judges in some counties have deemed it constitutional, while others have not, said Mark Yates, a law professor and dean at Golden Gate University in San Francisco.
“It’s kind of a mess right now,” he said. “Ultimately this will have to be ruled on by the California Supreme Court.”
