BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 1160 (Lieber) 0
As Amended June 21, 2006
Hearing date: June 27, 2006
Penal Code
MK:mc
CRIME
HISTORY
Source: Equality California
Prior Legislation: None
Support: Bienestar Human Service, Inc.; Congregation Sh'ar
Zahav; California State Controller Steve Westly; Lambda
Letters Project; Service Employees International Union,
Local 1000; Capitol Resource Institute; American
Federation of State, County and Municipal Employees,
AFL-CIO; City of West Hollywood; California Commission
on the Status of Women; Taxpayers for Improving Public
Safety; California Teachers Association
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 45 - Noes 32
KEY ISSUES
SHOULD A NEW JURY INSTRUCTION BE CREATED THAT STATES BIAS,
SYMPATHY, PREJUDICE OR PUBLIC OPINION SHOULD NOT INFLUENCE THE
JURY'S DECISION?
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(CONTINUED)
SHOULD $125,000 BE APPROPRIATED FROM THE GENERAL FUND TO A SPECIAL
FUND IN THE ATTORNEY GENERAL'S OFFICE TO DEVELOP TRAINING MATERIALS
FOR PROSECUTORS ON HOW BEST TO PREVENT BIAS FROM JURIES?
SHOULD LEGISLATIVE FINDINGS REGARDING HATE CRIMES AND PANIC
STRATEGIES BE MADE?
PURPOSE
The purpose of this bill is to make legislative findings about
"panic strategies," create an additional jury instruction
regarding bias and to appropriate money for training prosecutors
regarding "panic strategies."
Existing law provides that it is unlawful to, by force or threat
of force, willfully injure, intimidate, interfere with, oppress,
or threaten any other person in the free exercise or enjoyment
of any right or privilege secured to him or her by the
Constitution or laws of the United States in whole or in part
because of actual or perceived characteristics of the victim
relating to disability, gender, nationality, race or ethnicity,
religion, sexual orientation or association with a person or
group with one or more of these actual or perceived
characteristics. (Penal Code 422.6 (a), 422.55(a)(1) - (7).)
Existing law defines "gender," for purposes of hate crimes to
mean, "sex, and includes a person's gender identity and gender
related appearance and behavior whether or not stereotypically
associated with the person's assigned sex at birth." (Penal
Code 422.56(c).)
Existing law provides that jurors, in every criminal case
(except in the penalty phase of a death penalty trial) may be
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instructed by the court: "Do not let bias, sympathy, prejudice,
or public opinion influence your decision." (CALCRIM 200.)
Existing law provides that murder is the unlawful killing of a
human being, or a fetus, with malice aforethought. (Penal Code
187.)
Existing law provides that murder is divided into two degrees
and that a murder committed with premeditation and deliberation
is first degree murder. (Penal Code 189.)
Existing law provides that manslaughter is divided into three
kinds, voluntary, involuntary and vehicular, and that voluntary
manslaughter is the unlawful killing of a human being without
malice, upon a sudden quarrel or heat of passion. (Penal Code
192.)
Existing law states that the defendant killed someone upon a
sudden quarrel or heat of passion if, as a result of provocation
that would have caused a person of average disposition to act
rashly and without due deliberation, that is, from passion
rather than from judgment, the defendant acted rashly and under
the influence of intense emotion that obscured his or her
reasoning or judgment. (CALCRIM 570.)
Existing law provides that the court in its discretion may
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury. (Evidence Code 352.)
This bill makes various legislative findings regarding existing
California law in relation to hate crimes.
This bill makes legislative findings that:
"It is against public policy for juries to render
decisions tainted by bias based upon the victim's actual or
perceived disability, gender, nationality, race or
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ethnicity, religion or sexual orientation, or his or her
association with a person or group with one or more of
these characteristics."
"'Panic strategies' are those strategies that try to
explain a defendant's actions or emotional reactions based
upon the knowledge or discovery of the fact that the victim
possesses one or more of the characteristics listed above
or associates with a person or group with one or more of
these characteristics."
"The Legislature is concerned about the use of societal
bias in criminal proceedings and the susceptibility of
juries to such bias. The use of so-called 'panic
strategies' by defendants in criminal trials opens the door
for bias against victims based on one or more of the
characteristics listed above or an association with a
person or group with one or more of those characteristics."
"It is against public policy for a defendant to be
acquitted of a charged offense based upon an appeal to the
societal bias that may be possessed by members of a jury."
This bill provides that in any criminal trial or proceeding,
upon the request of a party, the court shall instruct the jury
as follows:
Do not let bias, sympathy, prejudice, or public opinion
influence your decision. Bias includes bias against the
victim or victims based upon his or her disability,
gender, nationality, race or ethnicity, religion, gender
identity, or sexual orientation.
This bill provides that $125,000 is appropriated from the
General Fund to the Office of the Attorney General to be
maintained in a special fund. The money shall be used to
contract with an outside vendor to develop materials for use by
county prosecutors explaining how panic strategies are used to
encourage jurors to respond to societal bias and providing best
practices for preventing bias from affecting the outcome of a
trial.
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COMMENTS
1.Need for This Bill
According to the author:
The murder of Gwen Araujo in Newark, CA, has focused
national attention on the increasing use of the 'panic
strategy' by defendants in murder trials. In 2004, the
criminal trial of the three men accused of attacking Ms.
Araujo ended in a mistrial, following several weeks of
defense attorneys asserting that the defendants
"panicked" upon learning that Ms. Araujo was
transgender. Their arguments, largely based on
stereotypes about transgender women, were framed to play
on societal bias against transgender people. If
successful, this panic strategy could have resulted in a
conviction for the lesser charge of voluntary
manslaughter, rather than first or second degree murder
as sought by the prosecution.
Experts estimate that nationally, similar panic
strategies have been used in over 45 cases, often with
success. Last year, a Kentucky man successfully won a
lighter sentence after arguing that his murderous rage
was justified because the male victim allegedly made a
sexual advance on him. A similar case in Georgia,
spurred the Fulton County District Attorney (Atlanta) to
convene a three-day conference in February of 2005 on
the subject to help train prosecutors on defeating the
strategy. Recently, a Fresno man who stabbed a
transgender person a reported 20 times was sentenced to
only 4 years in prison after agreeing to plead guilty to
the crime. Newspaper reports quoted a Fresno District
Attorney as saying that the difficulty of facing panic
strategies was one reason for offering the plea.
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This bill will help ensure that defendants do not play
upon bias in attempting to win acquittal or to seek a
lesser charge. The bill will improve the existing
California jury instruction to clarify that bias on the
basis of a person's gender, sexual orientation or other
protected characteristics has no place in the jury's
decision making.
2. The Issue of "Gay or Transgender Panic" in Criminal Cases
Evidence that a defendant in a criminal case killed the victim
in response to discovery of the victim's gender or sexual
orientation has been introduced in some cases to establish the
defendant's state of mind at the time of the offense. AB 1160
addresses the concern that this type of evidence may be used by
criminal defendants to appeal to bias on the part of members of
the jury against gay and transgender people. The issue this
bill raises is how that concern may be addressed consistent with
the right of an accused person to present all relevant evidence
in his or her defense.
a) "Panic" evidence to show heat of passion . Such evidence
has been introduced in some cases in an attempt to
establish that the defendant's discovery of the victim's
gender or sexual orientation was a provocation which
resulted in the defendant killing the victim in the heat of
passion. If the jury were to find that this discovery
constituted legally adequate provocation, this would reduce
defendant's liability from murder to manslaughter. The
test for what constitutes legally adequate provocation is
an objective one, that is, the jury would have to find that
the discovery of these facts would have led an ordinary
reasonable person to act without due deliberation and
reflection. On this issue jurors are instructed, "It is
not enough that the defendant simply was provoked. The
defendant is not allowed to set up his or her own standard
of conduct. You must decide whether the defendant was
provoked and whether the provocation was sufficient. In
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deciding whether the provocation was sufficient, consider
whether a person of average disposition would have been
provoked and how such a person would react in the same
situation knowing the same facts." (CALCRIM 570.) A review
of case-law indicates that no jury in California has ever
found that this sort of "panic" evidence constituted
sufficient provocation to find that the crime was committed
in the heat of passion. The most recent case in which the
jury found this evidence failed to constitute legally
adequate provocation was the case of Gwen Araujo, cited by
the author.
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b) "Panic" evidence to show lack of premeditation . Aside
from the introduction of this type of evidence to establish
that a killing took place in the heat of passion, this
evidence could also be introduced, where the defendant is
charged with first degree murder, to show that the killing
was not premeditated. If the killing was not premeditated
the defendant's liability is reduced from first to second
degree murder. Therefore, regardless of whether the jury
is sympathetic to, or repulsed by, the defendant's attitude
toward the victim, the evidence could be relevant to the
defendant's state of mind at the time of the killing.
Because evidence of the defendant's state of mind with
respect to premeditation and deliberation is highly
relevant to issues before the jury, in cases where the
defendant is charged with first-degree murder, the
defendant would have a Constitutional right to present this
type of evidence to the jury. ("The right of an accused to
testify in his own defense is well established, and is a
'constitutional right of fundamental dimension.'" United
States v. Pino-Noriega (1999) 189 F.3d 1089, 1094, citing
United States v. Joelson, 7 F. 3d 174, 177 (9th Cir. 1993);
Rock v. Arkansas, 483 U.S. 44, 51, 97 L. Ed. 2d 37, 107 S.
Ct. 2704 (1987). U.S. Const., Amend VI.)
3. Legislative Declarations and Findings
This bill makes uncodified legislative findings and
declarations. It states that "California law defines a hate
crime as a criminal act committed, in whole or in part, because
of the actual or perceived disability, gender, nationality, race
or ethnicity, religion, or sexual orientation of the victim, or
his or her association with a person or group with one or more
of these actual or perceived characteristics." It also provides
that it is the right of every person regardless of actual or
perceived disability, gender, nationality, race, or ethnicity,
religion, or sexual orientation, or association with a person or
group with these actual or perceived characteristics, to be
secure and protected from fear, intimidation, and physical harm
caused by actions of violent groups and individuals. The bill
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also defines "bias" and "panic strategies." It also states that
it is against public policy for juries to render decisions
tainted by bias and that the Legislature is concerned about the
use of societal bias in criminal proceedings.
4. Jury instruction
Under existing law, jurors in every criminal case (except in the
penalty phase of a death penalty trial) may be instructed by the
court: "Do not let bias, sympathy, prejudice, or public opinion
influence your decision." (CALCRIM 200.) This bill creates
another instruction that may be issued upon the request of any
party which states:
Do not let bias, sympathy, prejudice, or public opinion
influence your decision. Bias includes bias against the
victim or victims based upon his or her disability,
gender, nationality, race or ethnicity, religion, gender
identity, or sexual orientation.
This new instruction, although more specific, is similar to the
existing instruction. However, the new instruction only applies
to bias against the victim whereas the existing instruction
could apply to bias against a witness or defendant.
IS THE INSTRUCTION IN THIS BILL NECESSARY?
SHOULD THE INSTRUCTION ALSO APPLY TO A WITNESS OR THE DEFENDANT?
5. Money for Training
This bill has an appropriation of $125,000 from the General Fund
to the Office of the Attorney General to be maintained in a
special fund. The money shall be used to contract with an
outside vendor to develop materials for use by county
prosecutors explaining how panic strategies are used to
encourage jurors to respond to societal bias and providing best
practices for preventing bias from affecting the outcome of a
trial.
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