BILL ANALYSIS
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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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