California Legislature—2013–14 Regular Session

Assembly Bill No. 2098

Introduced by Assembly Member Levine

February 20, 2014

An act to amend Section 190.3 of the Penal Code, relating to the death penalty.

LEGISLATIVE COUNSEL’S DIGEST

AB 2098, as introduced, Levine. Death penalty: sentencing: mitigating circumstances.

Existing law, as added by the Briggs Initiative, a measure approved by the voters at the November 7, 1978, statewide general election, among other things, provides that persons convicted of first degree murder are subject to death or life in prison without the possibility of parole if any specified special circumstance is found to be true. Existing law also provides that in determining the penalty, the trier of fact is required to take into account certain mitigating and aggravating factors, if relevant, including, but not limited to, the presence or absence of any prior felony conviction, and whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

This bill would add whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service, as a mitigating factor.

The California Constitution authorizes the Legislature to amend or repeal an initiative statute by another statute that becomes effective when approved by the electors.

This bill would provide that its provisions will become effective only upon approval of the voters, and would provide for the submission of this measure to the voters for approval at a statewide election.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 190.3 of the Penal Code is amended to
read:

190.3.  

If the defendant has been found guilty of murder in the
first degree, and a special circumstance has been charged and found
to be true, or if the defendant may be subject to the death penalty
after having been found guilty of violating subdivision (a) of
Section 1672 of the Military and Veterans Code or Sections 37,
128, 219, or 4500 of this code, the trier of fact shall determine
whether the penalty shall be death or confinement in state prison
for a term of life without the possibility of parole. In the
proceedings on the question of penalty, evidence may be presented
by both the people and the defendant as to any matter relevant to
aggravation, mitigation, and sentence begin insert , end insert including, but not limited
to, the nature and circumstances of the present offense, any prior
felony conviction or convictions whether or not begin delete such end delete begin insert that end insert
conviction or begin insert those end insert convictions involved a crime of violence, the
presence or absence of other criminal activity by the defendant
begin delete which end delete begin insert that end insert involved the use or attempted use of force or violence
or begin delete which end delete begin insert that end insert involved the express or implied threat to use force
or violence, and the defendant’s character, background, history,
mental condition begin insert , end insert and physical condition.

However, begin delete no end delete evidence shall begin insert not end insert be admitted regarding other
criminal activity by the defendant begin delete which end delete begin insert that end insert did not involve the
use or attempted use of force or violence or begin delete which end delete begin insert that end insert did not
involve the express or implied threat to use force or violence. As
used in this section, criminal activity does not require a conviction.

However, in no event shall evidence of prior criminal activity
be admitted for an offense for which the defendant was prosecuted
and acquitted. The restriction on the use of this evidence is intended
to apply only to proceedings pursuant to this section and is not
intended to affect statutory or decisional law allowing begin delete such end delete begin insert that end insert
evidence to be used in any other proceedings.

Except for evidence in proof of the offense or special
circumstances begin delete which end delete begin insert that end insert subject a defendant to the death penalty,
begin delete no end delete evidence begin delete may end delete begin insert shall not end insert be presented by the prosecution in
aggravation unless notice of the evidence to be introduced has
been given to the defendant within a reasonable period of time as
determined by the court, prior to trial. Evidence may be introduced
without begin delete such end delete begin insert that end insert notice in rebuttal to evidence introduced by the
defendant in mitigation.

The trier of fact shall be instructed that a sentence of confinement
to state prison for a term of life without the possibility of parole
may in future after sentence is imposed, be commuted or modified
to a sentence that includes the possibility of parole by the Governor
of the State of California.

In determining the penalty, the trier of fact shall take into account
any of the following factors if relevant:

(a) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any special
circumstances found to be true pursuant to Section 190.1.

(b) The presence or absence of criminal activity by the defendant
begin delete which end delete begin insert that end insert involved the use or attempted use of force or violence
or the express or implied threat to use force or violence.

(c) The presence or absence of any prior felony conviction.

(d) Whether or not the offense was committed while the
defendant was under the influence of extreme mental or emotional
disturbance.

(e) Whether or not the victim was a participant in the defendant’s
homicidal conduct or consented to the homicidal act.

(f) Whether or not the offense was committed under
circumstances begin delete which end delete begin insert that end insert the defendant reasonably believed to be
a moral justification or extenuation for his begin insert or her end insert conduct.

(g) Whether or not defendant acted under extreme duress or
under the substantial domination of another person.

(h) Whether or not at the time of the offense the capacity of the
defendant to appreciate the criminality of his begin insert or her end insert conduct or to
conform his begin insert or her end insert conduct to the requirements of law was
impaired as a result of mental disease or defect, or the affects of
intoxication.

(i) The age of the defendant at the time of the crime.

(j) Whether or not the defendant was an accomplice to the
offense and his begin insert or her end insert participation in the commission of the
offense was relatively minor.

begin insert

(k) Whether the defendant was, or currently is, a member of the
United States military and whether the defendant may be suffering
from sexual trauma, traumatic brain injury, post-traumatic stress
disorder, substance abuse, or mental health problems as a result
of that service.

end insert begin delete

(k)

end delete

begin insert (l) end insert  Any other circumstance begin delete which end delete begin insert that end insert extenuates the gravity
of the crime even though it is not a legal excuse for the crime.

After having heard and received all of the evidence, and after
having heard and considered the arguments of counsel, the trier
of fact shall consider, take into account begin insert , end insert and be guided by the
aggravating and mitigating circumstances referred to in this section,
and shall impose a sentence of death if the trier of fact concludes
that the aggravating circumstances outweigh the mitigating
circumstances. If the trier of fact determines that the mitigating
circumstances outweigh the aggravating circumstances the trier
of fact shall impose a sentence of confinement in state prison for
a term of life without the possibility of parole.

SEC. 2.  

Section 1 of this act amends the Briggs Initiative of
1978, Proposition 7, an initiative statute, and shall become effective
only when submitted to and approved by the voters. The Secretary
of State shall submit Section 1 of this act for approval by the voters
at a statewide election in accordance with Section 9040 of the
Elections Code.