BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 509 (Anderson)
As Amended April 2, 2009
Hearing date: July 7, 2009
Vehicle Code
MK:br
VEHICLES: FLEEING A PEACE OFFICER
HISTORY
Source: Office of the San Diego District Attorney
Prior Legislation: SB 317 (Margett) - 2006, held Senate
Appropriations
SB 718 (Aanestad) - 2006, failed Senate Public
Safety
SB 719 (Romero) - Ch. 485, Stats. 2005
AB 305 (Mountjoy) - failed Assembly Public Safety
2005
AB 570 (Villines) - failed Senate Public Safety
2006
SB 209 (Margett) - 2004, held in Senate
Appropriations
SB 935 (Margett) - 2001-2002, held in Assembly
Appropriations
SB 902 (Knight) - 1999, failed Senate Public Safety
AB 2066 (Sweeney) - Ch. 472, Stats. 1998
AB 662 (Hertzberg) - Ch. 743, Stats. 1997
Support: California State Sheriffs' Association; San Bernardino
County Sheriff; Association for Los Angeles Deputy
Sheriffs; Riverside Sheriffs' Association; Los Angeles
Police Protective League;
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Opposition:California Attorneys for Criminal Justice; California
Public Defenders Association
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD THE PENALTY FOR EVADING A PEACE OFFICER AND CAUSING DAMAGE TO
PROPERTY OR PERSONS BE REWRITTEN SO THAT THE DAMAGE TO PROPERTY IS
IN A DIFFERENT SUBSECTION FROM THE INJURY TO PERSONS?
PURPOSE
The purpose of this bill is to rewrite the penalty provisions
for evading a peace officer and causing damage to persons or
property so that damage to persons could be found to be an
inherently dangerous felony for the purposes of the
second-degree felony murder.
Existing law provides that when a person flees a pursuing police
vehicle, knowing that his or her conduct endangers the life of
another person and nonetheless acts deliberately with conscious
disregard for life and causes a collision resulting in death,
that person is guilty of second-degree murder, punishable by
15-years-to-life in state prison, unless the victim is a police
officer in the performance of his or her duty and that fact was,
or should have been, known to the person, in which case the
punishment is 25-years-to-life in state prison. (Penal Code
187, 190 (a), (b); People v. Watson, 30 Cal.3d 290, 296 (1981).)
Existing law provides that willfully evading a peace officer and
thereby causing death or serious bodily injury is punishable by
imprisonment in the state prison for 3, 4 or 5 years; by
imprisonment in the county jail for not more than one year; by a
fine of $2000 to $10,000; or by both that fine and imprisonment.
(Vehicle Code 2800.3.)
Existing law defines "serious bodily injury" as a serious
impairment of physical condition including, but not limited to,
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loss of consciousness, concussion, bone fracture, protracted
loss or impairment of function of any bodily member or organ, a
wound requiring extensive suturing, and serious disfigurement.
(Penal Code 243 (f)(4).)
Existing law states that a person who causes the death of
another person by driving a vehicle in the commission of an
unlawful act not amounting to a felony and with gross negligence
is punishable by either imprisonment in the county jail for not
more than one year or by imprisonment in the state prison for 2,
4, or 6 years. (Penal Code 192 (c)(1) and 193 (c)(1).)
Existing law states that a person who causes the death of
another person by driving a vehicle in the commission of an
unlawful act not amounting to a felony but without gross
negligence is punishable by imprisonment in the county jail for
not more than one year. (Penal Code 192 (c)(2) and 193
(c)(2).)
Existing law provides that a person is guilty of willfully
evading a peace officer if all of the following conditions exist
(Vehicle Code 2800.1 (a).):
The peace officer's motor vehicle is exhibiting at least
one lighted red lamp visible from the front and the person
either sees or reasonably should have seen the lamp;
The peace officer's motor vehicle is sounding a siren as
may be reasonably necessary;
The peace officer's motor vehicle is distinctively
marked; and,
The peace officer's motor vehicle is operated by a peace
officer, as defined, and that peace officer is wearing a
distinctive uniform.
Existing law provides that the same penalties described in
Vehicle Section 2800 above apply to a person who flees from a
peace officer on a bicycle if the following conditions exist:
The peace officer's bicycle is distinctively marked;
The peace officer's bicycle is operated by a peace
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officer, as specified, and that peace officer is wearing
a distinctive uniform;
The peace officer gives a verbal command to stop;
The peace officer sounds a horn that produces a sound
of at least 115 decibels;
The peace officer gives a hand signal commanding the
person to stop; and,
The person is aware or reasonably should have been
aware of the verbal command, horn, and hand signal, but
refuses to comply with the command to stop. (Vehicle
Code 2800.1 (b).)
Existing law states that if a person flees or eludes a peace
officer's pursuing vehicle and the pursued vehicle is driven in
a willful or wanton disregard for the safety of persons or
property, the person shall be punished by imprisonment in the
state prison or by confinement in the county jail for not less
than six months nor more than one year. Provides that the court
may also impose a fine of not less than $1000 nor more than
$10,000 or may impose both the fine and imprisonment. (Vehicle
Code 2800.2 (a).)
Existing law states that "willful or wanton disregard" for the
safety of persons or property includes, but is not limited to,
driving while fleeing or attempting to elude a pursuing peace
officer during which time either three or more violations
assigned a traffic violation point occur, as specified, or
damage to property occurs. (Vehicle Code 2800.2 (b).)
This bill instead separates the injury to person from the injury
to property and applies the existing definition of "willful or
wanton disregard" only to the section on property damage.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
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California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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This bill does appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
This bill would close a loophole in current law that was
pointed out by the Supreme Court of California in their
written opinion in People v. Howard. In the court's
opinion, they noted that the crime of driving with the
willful and wanton disregard for the safety of persons
or property while fleeting from a pursuing police
officer (Vehicle Code 2800.2) is not an inherently
dangerous felony for the purpose of the second-degree
murder felony-murder rule. Their decision was based on
the fact that the Legislature amended Section 2800.2 to
broadly define the term "willful or wanton disregard for
the safety of persons or property," to include
violations that are not inherently dangerous. As a
result, a violation of Section 2800.2 cannot be
considered an inherently dangerous felony for the
purposes of the second-degree felony-murder rule.
2 The Second-Degree Felony-Murder Rule
The second-degree felony-murder rule is a court-made rule with
no statutory definition. (People v. Howard (2005) 34 Cal.4th
1129, 1135.) The California Supreme Court has described the
rule as follows:
Because the second-degree felony-murder rule is a
court-made rule, it has no statutory definition. This
court has described it thusly: "A homicide that is a
direct causal result of the commission of a felony
inherently dangerous to human life (other than the . . .
felonies enumerated in Pen. Code, 189) constitutes at
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least second-degree murder." (People v. Ford (1964) 60
Cal.2d 772, 795 [36 Cal. Rptr. 620, 388 P.2d 892],
italics added.) The rule "eliminates the need for proof
of malice in connection with a charge of murder."
(People v. Robertson (2004) 34 Cal.4th 156, 165 [17 Cal.
Rptr. 3d 604, 95 P.3d 872].) It is not an evidentiary
presumption but a substantive rule of law (see People v.
Dillon (1983) 34 Cal.3d 441, 472-476 [194 Cal. Rptr.
390, 668 P.2d 697]; see also People v. Patterson (1989)
49 Cal.3d 615, 626 [262 Cal. Rptr. 195, 778 P.2d 549]),
which is based on the theory that "when society has
declared certain inherently dangerous conduct to be
felonious, a defendant should not be allowed to excuse
himself by saying he was unaware of the danger to life
because, by declaring the conduct to be felonious,
society has warned him of the risk involved." (People
v. Patterson, supra, 49 Cal.3d at p. 626.)
Because the second-degree felony-murder rule is "a
judge-made doctrine without any express basis in the
Penal Code" (People v. Dillon, supra, 34 Cal.3d at p.
472, fn. 19), its constitutionality has been questioned
(see People v. Patterson, supra, 49 Cal.3d at p. 641
(conc. opn. of Panelli, J.)). And, as we have noted in
the past, legal scholars have criticized the rule for
incorporating "an artificial concept of strict criminal
liability that 'erodes the relationship between criminal
liability and moral culpability.' " (Id. at p. 621.)
Therefore, we have repeatedly stressed that the rule "
'deserves no extension beyond its required application.'
" (Id. at p. 622; see also People v. Burroughs (1984)
35 Cal.3d 824, 829 [201 Cal. Rptr. 319, 678 P.2d 894];
People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.
Rptr. 225, 414 P.2d 353].)
In determining whether a felony is inherently dangerous
[under the second-degree felony-murder rule], the court
looks to the elements of the felony in the abstract,
"not the 'particular' facts of the case," i.e., not to
the defendant's specific conduct. (People v. Hansen
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(1994) 9 Cal.4th 300, 309 [36 Cal. Rptr. 2d 609, 885
P.2d 1022].) That is, we determine whether the felony
"by its very nature . . . cannot be committed without
creating a substantial risk that someone will be killed
. . . ." (People v. Burroughs, supra, 35 Cal.3d at p.
833; see also People v. Robertson, supra, 34 Cal.4th at
p. 166.)
Felonies that have been held inherently dangerous to
life include shooting at an inhabited dwelling (People
v. Hansen, supra, 9 Cal.4th at p. 311), poisoning with
intent to injure (People v. Mattison (1971) 4 Cal.3d 177
[93 Cal. Rptr. 185, 481 P.2d 193]), arson of a motor
vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163 [89
Cal. Rptr. 721, 474 P.2d 673]; but see People v.
Henderson (1977) 19 Cal.3d 86, 96 [137 Cal. Rptr. 1, 560
P.2d 1180]), grossly negligent discharge of a firearm
(People v. Clem (2000) 78 Cal.App.4th 346, 353-354 [92
Cal. Rptr. 2d 727]; see also People v. Robertson, supra,
34 Cal.4th at pp. 168-169 [quoting Clem with approval]),
manufacturing methamphetamine (People v. James (1998) 62
Cal.App.4th 244, 271 [74 Cal. Rptr. 2d 7]), kidnapping
(People v. Greenberger (1997) 58 Cal.App.4th 298, 377
[68 Cal. Rptr. 2d 61]; People v. Pearch (1991) 229
Cal.App.3d 1282, 1299 [280 Cal. Rptr. 584]), and
reckless or malicious possession of a destructive device
(People v. Morse (1992) 2 Cal.App.4th 620, 646 [3 Cal.
Rptr. 2d 343]).
Felonies that have been held not inherently dangerous to
life include practicing medicine without a license under
conditions creating a risk of great bodily harm, serious
physical or mental illness, or death (People v.
Burroughs, supra, 35 Cal.3d at p. 833); false
imprisonment by violence, menace, fraud, or deceit
(People v. Henderson, supra, 19 Cal.3d at pp. 92-96);
possession of a concealable firearm by a convicted felon
(People v. Satchell (1971) 6 Cal.3d 28, 35-41 [98 Cal.
Rptr. 33, 489 P.2d 1361]); possession of a sawed-off
shotgun (Id. at pp. 41-43); escape (People v. Lopez
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(1971) 6 Cal.3d 45, 51-52 [98 Cal. Rptr. 44, 489 P.2d
1372]); grand theft (People v. Phillips, supra, 64
Cal.2d at pp. 580-583); conspiracy to possess methedrine
(People v. Williams (1965) 63 Cal.2d 452, 458 [47 Cal.
Rptr. 7, 406 P.2d 647]); extortion (People v. Smith
(1998) 62 Cal.App.4th 1233, 1236-1238 [72 Cal. Rptr. 2d
918]); furnishing phencyclidine (People v. Taylor (1992)
6 Cal.App.4th 1084, 1099 [8 Cal. Rptr. 2d 439]); and
child endangerment or abuse (People v. Lee (1991) 234
Cal.App.3d 1214, 1229 [286 Cal. Rptr. 117]). (People v.
Howard, 34 Cal.4th 1129, 1135-1139 (Cal. 2005).)
In the Howard case, the court interpreted Vehicle Code Section
2800.2, which prohibits fleeing from a peace officer with
willful, wanton disregard for the safety of persons and
property. The court noted that Vehicle Code Section 2800.2 (b)
provides that "willful, wanton disregard for the safety of
persons and property" as used in that section, includes
committing three or more traffic violations while fleeing that
are assigned a traffic point under the Penal Code. Because a
driver could commit three such traffic violations without
necessarily endangering human life, the court found that Vehicle
Code Section 2800.2 was not an inherently dangerous felony and
therefore could not form the basis of a second-degree
felony-murder conviction. (People v. Howard, supra, 34 Cal.4th
at 1139.)
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In the Howard case the Attorney General argued that the
Legislature, "[D]id not intend to make the second-degree
felony-murder rule inapplicable to violations of that section."
(People v. Howard, supra, 34 Cal.4th at 1139.)
However, the court dismissed that argument stating:
The legislative history of the amendment makes no
mention, however, of the second-degree felony-murder
rule; nor does the legislative history pertaining to the
original enactment in 1988 of Section 2800.2 (Stats.
1988, Ch. 504, 3, p. 1919).
In all likelihood, the Legislature did not consider the
effect that either the statute's original enactment or
its amendment would have on murder prosecutions. In the
absence of any evidence of legislative intent, we assume
that the Legislature contemplated that we would
determine the application of the second-degree
felony-murder rule to violations of Section 2800.2 based
on our long-established decisions holding that the rule
applies only to felonies that are inherently dangerous
in the abstract. (People v. Robertson, supra, 34
Cal.4th at p. 166; People v. Hansen, supra, 9 Cal.4th at
p. 309; People v. Phillips, supra, 64 Cal.2d at p. 582;
People v. Williams, supra, 63 Cal.2d at p. 458, fn. 5.)
As we have explained in this opinion, a violation of
Section 2800.2 is not, in the abstract, inherently
dangerous to human life. Therefore, the second-degree
felony-murder rule does not apply when a killing occurs
during a violation of Section 2800.2. (People v.
Howard, supra, 34 Cal.4th at 1139.)
3. Intent to Abrogate People v. Howard
This bill intends to abrogate People v. Howard by separating the
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provisions damage to property from the damage to people and
applying the existing definition of willful or wanton disregard
for safety that the Howard court discussed only to property not
to persons. The intent of the author and sponsor is that if a
person is killed, this change will allow the crime to be charged
as second-degree felony-murder with a sentence of
15-years-to-life. Although in some cases a murder or
manslaughter conviction could be sustained in a case where a
person fled a peace officer, if the section, as drafted in this
bill, is found to be an inherently dangerous felony, as intended
by this bill, it makes the prosecution much easier because it
would only be necessary to prove the elements of the offense in
this bill.
4. Opposition
The California Attorneys for Criminal Justice opposes this bill
stating:
The California Supreme Court reasoned that the mere act
of fleeing an attempted traffic stop is not in and of
itself an "inherently dangerous felony." The
second-degree felony-murder rule is strictly applied
only to those offenses that by their very nature, and in
every circumstance, pose a danger to human life. The
dangerousness of this criminal act is wholly dependant
upon surrounding circumstances thus falling short of the
felony-murder threshold.
The court clearly reaffirmed the possibility that a
person may still be prosecuted for murder if the
specific circumstances warrant such a charge. AB 509 is
simply an attempt to rewrite current law to ignore the
fundamental principles of felony-murder.
The California Supreme Court strongly warned against any
recasting of the current felony-murder rule when it
wrote ". . . we have repeatedly stressed that the rule
'deserves no extension beyond its required application.'
" People v. Howard supra, 1135.
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