BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2674
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          Date of Hearing:  April 6, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                 AB 2674 (Block) - As Introduced:  February 19, 2010
           
                                   PROPOSED CONSENT
           
          SUBJECT  :  FAMILY LAW:  forfeiture of community property for  
          soliciting the murder of a spouse

           KEY ISSUE  :  should OUR family law be clarified to ensure that a  
          spouse who is convicted of soliciting the murder of his or her  
          FORMER spouse similarly forfeitS ALL rightS to SPOUSAL SUPPORT  
          AND his or her share of the community property -- as is already  
          appropriately the case when a spouse is convicted of personally  
          attemptING THE murder of the other spouse?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS

          This unsurprisingly non-controversial bill arises from an  
          extremely compelling, indeed shocking, case brought to the  
          author by one of his constituents.  In correspondence received  
          by the Committee from the author's constituent, the constituent  
          -- a police detective -- notes that his former wife repeatedly  
          solicited his murder following her tragic descent into drug  
          addiction, acts of which she was ultimately convicted of  
          solicitation to commit murder, and sent to prison.  The  
          detective thereafter retained custody of the couple's two  
          children.  In subsequent proceedings for divorce, the family  
          court found that our family code did not yet protect the  
          detective in such a case from having to share the community  
          property with the former spouse who sought his murder -- because  
          his former spouse did not personally attempt his murder but  
          instead solicited someone else to commit the egregious act.  The  
          court found this despite the Legislature's enactment of  
          pertinent family law legislation over 15 years ago, in the form  
          of AB 16 of 1995, which prohibited a spouse convicted of  
          attempting to murder the other spouse him or herself from  
          benefiting in any way from his or her prior act.  The court  
          therefore perhaps accurately, but certainly disturbingly, held  
          that the spouse who had solicited her former husband's murder  








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          was nevertheless entitled to one-half the community property of  
          the marriage, including the detective's retirement benefits and  
          insurance benefits from life insurance policies, under the  
          technical terms of the statute.  Although the detective's  
          attorney reportedly argued to the court that the wife's intent  
          was the same as the intent for the crime of attempted murder,  
          the court found in favor of the wife because the state's family  
          law did not yet specifically state that solicitation of murder  
          by one spouse against another would similarly lead to forfeiture  
          of community property.  This measure -- though it cannot correct  
          the shocking result in the detective's case recounted here --  
          will appropriately clarify the Legislature's determination that  
          it should not matter whether a former spouse personally sought  
          to murder the other spouse, or instead solicited another to  
          commit the murder, when it comes to the forfeiture of the  
          murderous spouse's share of community property.  There is no  
          known opposition to this clarification of spousal support and  
          community property law - and this legislation will now hopefully  
          ensure that a spouse convicted of soliciting the murder of the  
          other spouse cannot benefit in any way from his or her criminal  
          misconduct, just as is already the case if he or she personally  
          sought to murder the other spouse.   

           SUMMARY  :  Seeks to clarify the Legislature's determination that  
          it should not matter whether a former spouse personally sought  
          to personally murder the other spouse, or instead solicited  
          another to commit the murder of that spouse, when it comes to  
          the forfeiture of the murderous spouse's spousal support and  
          share of community property.  Specifically,  this bill  : 

          1)Provides that in addition to any other remedy authorized by  
            law, when a spouse is convicted of soliciting the murder of   
            the other spouse as punishable pursuant to subdivision (b) of  
            Section 653(f) of the Penal Code, the injured spouse shall be  
            entitled to:

             a)   An award to the injured spouse of 100 percent of the  
               community property interest in the retirement and pension  
               benefits of the injured spouse and 

             b)   A prohibition of any temporary or permanent award for  
               spousal support or medical, life, or other insurance  
               benefits or payments from the injured spouse to the other  
               spouse.









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          2)Expands the definition of "injured spouse" to mean the spouse  
            who has been the subject of the attempted murder or the  
            solicitation of murder for which the other spouse was  
            convicted, whether or not actual physical injury occurred.

           EXISTING LAW  :  

          1)Provides, in addition to any other remedy authorized by law,  
            when a spouse is convicted of attempting to murder the other  
            spouse, as punishable pursuant to subdivision (a) of Section  
            664 of the Penal Code, the injured spouse shall be entitled to  
            an award to the injured spouse of 100 percent of the community  
            property interest in the retirement and pension benefits of  
            the injured spouse.  (Family Code Section 782.5)

          2)Provides, in addition to any other remedy authorized by law,  
            when a spouse is convicted of attempting to murder the other  
            spouse, as punishable pursuant to subdivision (a) of Section  
            664 of the Penal Code, the injured spouse shall be entitled to  
            a prohibition of any temporary or permanent award of spousal  
            support or medical, life or other insurance benefits or  
            payments from the injured spouse to the other spouse.  (Family  
            Code Section 4324.)

          3)Provides that if an injured spouse is entitled to a remedy  
            under #2, above, the injured spouse is entitled to an award of  
            reasonable attorney's fees and costs as a sanction.  (Family  
            Code Section 274.)

          4)Prohibits a person who feloniously and intentionally kills  
            another from inheriting, either through a will or by intestate  
            succession, from the estate of the person who was killed.   
            (Probate Code Section 250.)

           COMMENTS  :  This non-controversial bill arises from an extremely  
          compelling, indeed shocking, case brought to the author by one  
          of his constituents.  In correspondence received by the  
          Committee from the author's constituent, the constituent -- a  
          police detective -- notes that his former wife repeatedly  
          solicited his murder following her tragic descent into drug  
          addiction, acts of which she was ultimately convicted of  
          solicitation to commit murder, and sent to prison.  In  
          subsequent proceedings for divorce, the family court found that  
          our family code did not yet protect the detective in such a case  
          from having to share the community property with the former  








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          spouse who sought his murder -- because his former spouse did  
          not personally attempt his murder but instead solicited someone  
          else to commit the egregious act.  The court found this despite  
          the Legislature's enactment of pertinent family law legislation  
          over 15 years ago, in the form of AB 16 (Rainey), Chap. 364,  
          Stats. 1995, which prohibited a spouse convicted of attempting  
          to murder the other spouse him or herself from benefiting in any  
          way from his or her prior act.  The court therefore perhaps  
          accurately, but certainly disturbingly, held that the spouse who  
          had solicited her former husband's murder was nevertheless  
          entitled to one-half the community property of the marriage,  
          including the detective's retirement benefits and insurance  
          benefits from life insurance policies, under the technical terms  
          of the statute.  This measure -- though it cannot correct the  
          shocking result in the detective's case recounted here -- will  
          appropriately clarify the Legislature's determination that it  
          should not matter whether a former spouse personally sought to  
          murder the other spouse, or instead solicited another to commit  
          the murder, when it comes to the forfeiture of the murderous  
          spouse's share of community property. 
          
           Legal Background  :  As noted above, existing law provides that  
          when a husband or wife is convicted of the attempted murder of  
          their spouse, the injured spouse is entitled to an award of 100%  
          of the community property interest in the retirement and pension  
          benefits of the injured spouse.  The injured spouse is entitled  
          to a prohibition of any temporary or permanent award for spousal  
          support, medical, life or other insurance benefits or payments  
          from the injured spouse.  The injured spouse is also entitled to  
          reasonable attorney fees and costs.  However, these provisions  
          do not yet expressly apply to a spouse convicted of soliciting  
          the murder of the other spouse.  This bill seeks to extend these  
          protections to the injured spouse by amending existing law to  
          include spouses who are convicted of soliciting the murder of  
          the other spouse. 

           A More Detailed Account of the Proffered Facts in the Case  
          Leading to This Legislation  :  The impetus for this bill was as  
          noted above a case involving the conviction of the wife of a  
          detective at the Pomona Police Department for the solicitation  
          of his murder.  Fortunately to say the least the murder attempt  
          failed, but the wife was convicted of one count solicitation to  
          commit murder and sent to prison.  According to the facts  
          recited by the detective, his marriage dissolved when his wife  
          became addicted to illegal drugs and physically abusive, and  








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          they separated in 2001.  The detective retained custody of their  
          two children.  Fearful of losing permanent custody of the  
          children and the accompanying monetary support, the wife  
          approached members of the Vagos motorcycle gang and attempted to  
          arrange the detective's murder while he was on-duty.  The  
          members refused.  Undeterred, three months later the wife  
          approached a female relation of two Vagos members and again  
          attempted to solicit the murder of her husband.  The female  
          relation notified the detective and an undercover operation was  
          set in motion.

          The female relation acted as a "go between" to arrange a meeting  
          with the "hit man."  The wife provided her vehicle to use as  
          transport, stating that if her husband was dead she would no  
          longer require use of her vehicle; she planned to purchase "a  
          brand new corvette."  The corvette was supposedly to be  
          purchased with the money she would be awarded as the beneficiary  
          in the case of her husband's death while on duty.  The  
          undercover team recorded the conversations and the wife was  
          arrested and convicted of solicitation to murder her husband.

          In subsequent proceedings for dissolution of the marriage,  
          despite the prior enactment of AB 16 which prohibits a spouse  
          convicted of attempting to murder the other spouse from  
          benefiting in any way from his or her prior act, the wife was  
          entitled to one-half the community property, including the  
          detective's retirement benefits and insurance benefits from life  
          insurance policies. Although his attorney argued to the court  
          that the wife's intent was the same as the intent for the crime  
          of attempted murder, but with aggravating circumstances, the  
          court found in favor of the wife. 

           Notwithstanding the Family Court's Determination in The Case  
          Behind This Bill, The Original Legislation Arguably Already  
          Intended to Cover Solicitation of Murder  :  One would assume,  
          based on the legislative history of AB 16, the original  
          legislation was intended to apply to the solicitation of murder.  
           According to the comments of the author who carried AB 16,  
          recounted in committee analyses at the time, that bill in 1994  
          attempted to provide a mechanism whereby a spouse who was the  
          victim of an attempted murder by the other spouse, would not be  
          subjected to the emotional and financial trauma of having to  
          make payments on spousal support, medical or life insurance  
          benefits, or retirement benefits to the convicted spouse.  









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          According to the author of AB 16, one of the driving forces  
          behind the bill at the time was a Hayward man, whose wife, in a  
          conspiracy with two other persons, tried to kill him in October  
          1976.  He stopped to help what he thought was a stranded  
          motorist, but was in fact in the midst of a trap.  He was shot  
          three to four times, twice in the head, and managed to save his  
          life by driving to the San Leandro police station before  
          fainting.  

          The wife was convicted and imprisoned for eight years for the  
          attempted murder.  In the subsequent dissolution proceeding, the  
          wife shockingly nevertheless received her one-half share of the  
          community property.  However, the man obtained custody of the  
          three children and raised them alone, with no contribution for  
          their support from the ex-wife.  The retirement benefits were  
          not divided in the dissolution proceeding because no one  
          expected the man to survive long enough to collect any such  
          benefits.  Due to the attempted murder, the man had taken early  
          retirement, only to find that his ex-wife was entitled to  
          one-half the community property share of his retirement  
          benefits.  This case clearly involves facts similar to those of  
          the detective's. 
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None on file

           Opposition 
           
          None on file
           
          Analysis Prepared by  :  Drew Liebert and Cheryl Lema / JUD. /  
          (916) 319-2334