BILL ANALYSIS                                                                                                                                                                                                    



                                                                       


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          |SENATE RULES COMMITTEE            |                  AB 1838|
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                                 THIRD READING


          Bill No:  AB 1838
          Author:   Hertzberg (D), et al
          Amended:  8/15/02 in Senate
          Vote:     27 - Urgency

           
           SENATE PUBLIC SAFETY COMMITTEE  :  4-0, 6/18/02
          AYES:  McPherson, Margett, Polanco, Sher

           SENATE APPROPRIATIONS COMMITTEE  :  11-0, 8/21/02
          AYES:  Alpert, Battin, Bowen, Burton, Johannessen, Johnson,  
            Karnette, Murray, Perata, Poochigian, Speier

           ASSEMBLY FLOOR  :  71-0, 5/23/02 - See last page for vote


           SUBJECT  :    Weapons of mass destruction:  additional crimes  
          and 
                      penalties

           SOURCE :     California District Attorneys Association
                      Los Angeles Count District Attorney


           DIGEST  :    This bill (1) defines use of a WMD as a serious  
          and violent felony; (2) defines murder by use of a WMD as  
          first degree murder; (3) requires a sentence of life  
          without parole (LWOP) for use of a WMD in a form that may  
          cause widespread death or injury and that causes death or  
          great bodily injury to any person; (4) expands the  
          definitions concerning weapons of mass destruction (WMD),  
          particularly as concerns water and food supplies; (5)  
          increases penalties for use of a WMD; (6) expands the crime  
          of possessing restricted biological agents and infectious  
                                                           CONTINUED





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          substances; (7) expands and clarifies the crime of making a  
          credible threat to use a WMD.

           ANALYSIS  :     Homicide and Related Provisions  

          Existing law defines murder as the unlawful killing of a  
          human being with malice aforethought.  (Pen. Code  187.)   
          Malice is express "when there is manifested a deliberate  
          intentionally" . . . to kill another person.  Malice is  
          implied when the killing resulted from an intentional act;  
          the natural consequences of the act are dangerous to human  
          life; and the act was deliberately performed with knowledge  
          of the danger to, and with conscious disregard for, human  
          life.  (People v. Dellinger (1989) 49 Cal.3d 1212, 1222.)

          Existing law provides that all murder which is perpetrated  
          by means of a destructive device or explosive, knowing use  
          of ammunition designed primarily to penetrate metal or  
          armor, poison, lying in wait, torture, or by any other kind  
          of willful, deliberate, and premeditated killing, or which  
          is committed in the perpetration of, or attempt to  
          perpetrate, arson, rape, carjacking, robbery, burglary,  
          mayhem, kidnapping, train wrecking, or torture, specified  
          sex offenses or any murder which is perpetrated by means of  
          discharging a firearm from a motor vehicle, intentionally  
          at another person outside of the vehicle with the intent to  
          inflict death, is murder of the first degree.  All other  
          kinds of murders are of the second degree.  (Penal Code  
          189.)

          Existing law provides that murder in the first degree  
          (deliberate and premeditated murder) is punished by death  
          or life in prison without possibility of parole where  
          special circumstances are shown.  Otherwise, first degree  
          murder is punished by a prison sentence of 25 years to  
          life.  Murder in the second degree is generally punished by  
          a term of 15 years to life in state prison or by a term of  
          life without parole if the defendant has previously been  
          convicted of murder or the murder of a peace officer.   
          (Pen. Code  190, 190.05, 190.2.)

          Existing law includes a lengthy list of special  
          circumstances applicable to first-degree murder.  These  
          factors include law enforcement or firefighter victim,  







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          multiple victims, crime witness victim, victim was juror,  
          judge, prosecutor, government official, lying in wait,  
          delivery of destructive device, financial gain, race,  
          nationality, etc. of victim.  (Pen. Code 190.2.)

          This bill defines any murder perpetrated by means of a WMD  
          as first degree murder.

          This bill provides that use of a WMD in a form that may  
          cause widespread great bodily injury and death, and which  
          does cause great bodily injury or death, shall be punished  
          by imprisonment in the state prison for life without the  
          possibility of parole.

           Serious and Violent Felonies
           
          Existing law defines specified felonies as serious or  
          violent, with various consequences flowing from such a  
          definition or designation.  The list of serious felonies  
          is set out Penal Code section 1192.7; violent felonies  
          are found in Penal Code section 667.5, subdivision (c).

          1. Any serious or violent felony, as defined on March 8,  
             2002 - the effective date of Proposition 21 of the  
             March 2000 Primary Election - constitute qualifying  
             prior convictions under the Three Strikes law.   
             Felonies defined as serious or violent past that date  
             will not constitute prior strikes unless and until the  
             applicable provisions from Proposition 21 are amended.

          2. Enhancement of 5 years in serious felony sentence for  
             every prior serious felony conviction.  (Pen. Code   
             667, subd. (a).)

          3. Enhancement of 3 years in violent felony sentence for  
             each prior violent felony conviction.  (Pen. Code   
             667.5, subd. (a).)

          4. Inmates convicted of violent felonies may earn no more  
             than 15% sentencing credit to reduce their prison terms.

          5. Plea bargaining is limited for serious felonies to cases  
             in which the prosecution may be unable to obtain or  
             present sufficient evidence or where the bargain would  







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             not change the sentence the defendant would otherwise  
             receive.  (Pen. Code  1192.7, subds (a)-(b).)

          6. The serious and violent felony lists set forth in Penal  
             Code sections 1192.7 and 667.5 is employed in a number  
             of other code sections.  The following examples  
             illustrate the use of this list for multiple purposes:

             A.     Prohibition from employment by a public or  
                 private elementary or high school.

             B.     Prohibition from employment by any school  
                 district.

             C.     Increased scrutiny in restraining orders.

             D.     Denial of specified teaching credentials.

             E.     Limitation of probation in certain cases.

             F.     Limitation of the application of Proposition 36  
                 in certain cases.

             G.     Specified distributions of bail forfeitures.

             H.     Limitations on psychiatric placements.

             I.     Restrictions on bail and non-bail release.

             J.     Parole restrictions.

             AA.    Restrictions on placement of children in  
                 dependency cases.

             BB.    5-year enhancements in current serious felony  
                 sentence for each prior.

             CC.    3-year enhancement in current violent felony  
                 sentence for each prior.

             DD.    Sentence credits limited to 15% for inmates  
                 convicted of violent crimes.

          This bill adds offenses involving the use of a WMD to the  







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          list of serious and violent crimes.

           Weapons of Mass Destruction - Definitions
           
          Existing law defines "weapon of mass destruction" (WMD) to  
          include chemical warfare agents, weaponized biological  
          warfare or biological agents, nuclear agents, radiological  
          agents, or the intentional release of industrial agents as  
          a weapon.  The law defines each category of weapon thus:

          1. Chemical warfare agents include Tabun, Sarin, Soman,  
             Choking Agents, Phosgene and Diphosgene, Blood Agents,  
             Hydrogen Cyanide, Cyanogen Chloride, Arsine, and Blister  
             Agents.

          2. Weaponized Biological agents include weaponized  
             pathogens such as bacteria, viruses, yeasts, fungi and  
             rickettsia.

          3. Nuclear or radiological agents include any improvised  
             nuclear device (IND), radiological dispersal device  
             (RDD), or any simple radiological dispersal device  
             (SRDD).

          4. The intentional release of industrial agents is use of a  
             WMD if committed with intent to harm and the use of such  
             agent risks death, illness or serious injury, or  
             endangers environment.  (Pen. Code  11419.)

          Existing law defines weaponization as "the deliberate  
          processing, preparation packaging or synthesis of any  
          substance for use as a weapon or munition.  'Weaponized  
          agents' are those agents or substances prepared for  
          dissemination through any explosive, thermal, pneumatic, or  
          mechanical means."  (Pen. Code  11417.)

          This bill expands the definition of WMD to include  
          additional biological agents and an aircraft, vessel or  
          vehicle (as defined in Veh. Code  34500) used as a weapon.  
           Vehicle Code section 34500 generally describes large  
          commercial vehicles.

          This bill, as set out in SB 1287 (Alarcon) defines "used as  
          a destructive weapon" as the use with the intent of causing  







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          widespread death or bodily injury by a fire or explosion,  
          or release of a chemical, biological, nuclear or  
          radioactive agent.

           Use of a WMD - Definitions and Penalties
           
          Existing law provides that a person who uses against  
          another person a weapon of mass destruction (WMD) in a form  
          that could cause widespread disabling injury or illness  
          shall be punished by life in prison.  (Pen. Code  11418.)

          Existing law provides that a person who uses a weapon of  
          mass destruction (WMD) in a form that could cause  
          widespread damage to, or disruption of, the water or food  
          supply is guilty of a felony and shall be imprisoned for 4,  
          8, or 12 years and/or fined up to $100,000.  (Pen. Code   
          11418.)

          Existing law provides that any person who uses a weapon of  
          mass destruction in a form that may cause widespread and  
          significant damage to public natural resources, including  
          coastal waterways and beaches, public parkland, surface  
          waters, ground water, and wildlife, is guilty of a felony  
          and shall be punished by imprisonment in the state prison  
          for 3, 4, or 6 years.  (Pen. Code  11418.)

          Existing law provides that a person who uses recombinant  
          technology to create new or more virulent pathogens for  
          the purposes specified in this section (to use against  
          humans, crops, etc.) is guilty of an alternate  
          felony/misdemeanor, punishable by up to one year in the  
          county jail, or for 3, 6 or 9 years in state prison and/or  
          a fine of up to $250,000.  (Pen. Code  11418.)

          Existing law provides that any person who unlawfully  
          possesses, develops, acquires, etc., any WMD, is guilty of  
          a felony punishable in state prison for 3, 6, or 9 years.   
          These penalties are 4, 8, or 12 years in state prison if  
          the defendant has been previously convicted of crimes such  
          as the following:  Ethnic/religious hate-type crimes, such  
          as terrorizing with Nazi symbols, cross burning, arson of  
          a health facility, bookstore or property owned by a person  
          of a targeted race/ethnicity; exploding or attempting to  
          explode a destructive device or explosive in specified  







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          locations with the intent to terrorize; paramilitary  
          organizations practicing with weapons, or training another  
          in explosives or destructive devices; and various other  
          explosives device crimes.  (Pen. Code  11411, 11412,  
          11413, 11460, 12303.1, 12303.2 and 12303.3.)  (Pen. Code   
          11418.)

          Existing law provides that a person or entity possessing  
          any "restricted biological agent" (designated, particularly  
          dangerous agents such as Ebola, anthrax, botulism, lassa  
          fever virus, equine encephalitis, smallpox, etc.) shall be  
          punished by imprisonment for 4, 8 or 12 years, and/or a  
          full fine of $250,000.  (Pen. Code  11419.)

          Existing law excludes the use of otherwise prohibited items  
          by universities, research institutions, individuals, or  
          hospitals registered with the Centers for Disease Control  
          and Prevention utilizing the substances for prophylactic,  
          protective or peaceful purposes.  (Pen. Code  11419.)

          This bill as set out in SB 1287 (Alarcon) defines "used as  
          a destructive weapon" as the use with the intent of causing  
          widespread death or bodily injury by a fire or explosion,  
          or release of chemical, biological, nuclear or radioactive  
          agent.

          This bill makes use of a WMD in a form that may cause  
          widespread death or injury, and that actually causes death  
          or injury to any person, punishable by life in prison  
          without parole.

          This bill increases penalties for possessing, developing,  
          or manufacturing a WMD from 3, 6, or 9 years in state  
          prison, to 4, 8, or 12 years.

          This bill increases penalties for specified repeat WMD  
          offenses from 4, 8, or 12 years in state prison, to 5, 10,  
          or 15 years, and adds prior convictions for WMD crimes to  
          the list of crimes that qualify as repeat offenses.

          This bill increases penalties for using a WMD that causes  
          widespread damage to or disruption of the food supply or  
          drinking water from 4, 8, or 12 years in state prison, to  
          5, 8, or 12 years, and includes disruption of or damage to  







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          a "source of drinking water" to this crime.

          This bill increases penalties for using biological advances  
          to create new pathogens or more virulent forms of existing  
          pathogens for a WMD, from a wobbler, punishable by one year  
          in county jail, or 3, 6, or 9 years in state prison and/or  
          a fine of up to $250,000, to a straight felony punishable  
          by 4, 8, or 12 years in state prison and a $250,000 fine.

           Prior legislation  :

          SB 1287 (Alarcon) passed the Senate Floor 39-0, 5/29/02.
          AB 140 (Hertzberg-Alarcon) became Chapter 573, Statutes of  
          1999.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

           Major Provisions                 2002-03             2003-04      
                2004-05                  Fund
           
          Corrections           Indeterminable costs for state prison  
          incarcer-  General
                                       ation, potentially in excess  
          of $150 annually 

           SUPPORT  :   (Verified  8/23/02)

          California District Attorneys Association (co-source)
          Los Angeles County District Attorney (co-source)
          Riverside Sheriff's Association
          Association for Los Angeles Deputy Sheriffs
          Los Angeles Police Protective League
          Peace Officers Research Association of California
          California State Sheriffs' Association
          California Highway Patrol
          Attorney General


           ARGUMENTS IN SUPPORT  :    According to the author:







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          Current law penalizes any persons (with specified  
          exceptions) who possess, develops, manufactures, produces,  
          transfers, acquires or attains any weapon of mass  
          destruction.  It also penalizes any person who uses or  
          threatens to use a weapon of mass destruction against  
          another person, an animal, the food or water supply, crops  
          or public natural resources.  It is also a crime to  
          maliciously possess or to expose any person to a false or  
          facsimile bomb whether verbally, in writing or  
          electronically.  Current law states that a conspiracy to  
          commit a crime involving using a weapon of mass destruction  
          is punishable equal to actual commission of the crime.

          This bill will penalize the use of a weapon of mass  
          destruction against major infrastructure, landmarks, or  
          economic activity.  It penalizes this type of threat that  
          causes widespread fear, business closures, or  
          transportation disruption.  Under specified circumstances  
          it makes it a crime to possess or to expose any other  
          person to a facsimile weapon of mass destruction.  In  
          addition, this bill specifies a minimum penalty for  
          conspiracy to commit these crimes.


           ASSEMBLY FLOOR  : 
          AYES:  Aanestad, Alquist, Ashburn, Bates, Bogh, Calderon,  
            Bill Campbell, John Campbell, Canciamilla, Cardenas,  
            Cardoza, Chan, Chavez, Cogdill, Cohn, Corbett, Correa,  
            Cox, Daucher, Diaz, Dickerson, Dutra, Firebaugh, Frommer,  
            Harman, Havice, Hertzberg, Hollingsworth, Horton,  
            Jackson, Keeley, Kehoe, Kelley, Koretz, La Suer, Leach,  
            Leonard, Leslie, Liu, Longville, Lowenthal, Maddox,  
            Maldonado, Matthews, Migden, Mountjoy, Nakano, Nation,  
            Negrete McLeod, Oropeza, Robert Pacheco, Rod Pacheco,  
            Pavley, Pescetti, Reyes, Richman, Runner, Salinas,  
            Shelley, Simitian, Steinberg, Strickland, Strom-Martin,  
            Thomson, Vargas, Wayne, Wiggins, Wright, Wyland, Wyman,  
            Wesson


          RJG:jk  8/23/02   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE







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