BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1838| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 AB 1838 Page 2 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, AB 1838 Page 3 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 AB 1838 Page 4 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 AB 1838 Page 5 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 AB 1838 Page 6 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 AB 1838 Page 7 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 AB 1838 Page 8 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: AB 1838 Page 9 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 AB 1838 Page 10 **** END ****