BILL ANALYSIS Ó AB 2501 Page 1 Date of Hearing: April 29, 2014 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 2501 (Bonilla) - As Amended: April 24, 2014 SUMMARY : Prohibits the use of the "panic defense" to support a finding of sudden quarrel or heat of passion, which is necessary to reduce murder to manslaughter. Specifically, this bill : 1)States that for the purposes of determining sudden quarrel or heat of passion for purposes of voluntary manslaughter, the provocation is not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim's or defendant's actual or perceived gender, gender identity, gender expression, or sexual orientation including: a) Circumstances in which the victim made an unwanted, non-forcible, romantic or sexual advance towards the defendant; or b) Circumstances where the defendant and the victim dated or had a romantic or sexual relationship. 2)States that nothing in this section precludes the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation. 3)Defines "gender" as including "a person's gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person's gender as determined at birth." 4)Makes technical, non-substantive changes. EXISTING LAW : 1)Provides that murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (Pen. Code, § 187.) AB 2501 Page 2 2)Provides that murder is divided into two degrees, and that a willful, deliberate and premeditated killing is first degree murder. (Pen. Code, § 189.) 3)Punishes murder in the first degree with life without the possibility of parole or a term of 25 years to life, and punishes murder in the second degree with a term of 15 years to life. (Pen. Code, § 190.) 4)Provides that a person who commits first degree murder that is a hate crime shall be punished by a term of life without parole. (Pen. Code, § 190.03, subd. (a).) 5)Provides that manslaughter the unlawful killing of a human being without malice. (Pen. Code, § 192.) 6)Provides that manslaughter is divided into three kinds, voluntary, involuntary and vehicular, and that voluntary manslaughter is the unlawful killing of a human being upon a sudden quarrel or heat of passion. (Pen. Code, § 192.) 7)States a killing occurs upon a sudden quarrel or heat of passion if: a) The defendant was provoked; b) As a result of provocation, the defendant acted rashly and under the influence of intense emotion that obscured his or her reasoning or judgment; and c) The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. (CALCRIM No. 570.) 8)Punishes voluntary manslaughter with imprisonment in the state prison for 3, 6, or 11 years. (Pen. Code, § 193, subd. (a).) 9)Defines a hate crime as a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: disability, gender, nationality, race or ethnicity, religion, sexual orientation, and association with a person or group with one or more of these actual or perceived characteristics. (Pen. Code, § 422.55.) AB 2501 Page 3 10)Defines "gender," for purposes of hate crimes as "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." (Pen. Code, § 422.56, subd. (c).) 11)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. (Evid. Code, § 352.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "AB 2501 ensures that defendants cannot use the so-called 'panic defense' - where they argue that a state of panic provoked their malicious act - in an attempt to lower a charge from murder to manslaughter or to escape conviction. Such defenses have been well-documented in murder cases. A panic attack defense allows a criminal defendant to claim that violence against the LGBT community is understandable or acceptable due to the victim's orientation or gender identity. AB 2501 makes it very clear that it is never acceptable, and that there is no place for prejudice against people who are lesbian, gay, bisexual, or transgender." 2)Murder vs. Manslaughter : An unlawful homicide committed with malice aforethought is murder. (Pen. Code, § 188.) Malice is expressed when the defendant intended to kill. Malice is implied when the defendant is subjectively aware that his or her conduct endangers human life, and yet acts in conscious disregard of that risk. (People v. Lasko (2000) 23 Cal.4th 101, 104.) When a person intentionally but unlawfully kills in a sudden quarrel or heat of passion, the person lacks malice and is guilty of voluntary manslaughter. Likewise, when a person, acting with conscious disregard for life and knowing that the conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or heat of passion, the AB 2501 Page 4 person is also guilty of voluntary manslaughter. (Ibid.) The passion aroused need not be rage or anger, but can be any intense, high-wrought, violent, or enthusiastic emotion other than revenge. (People v. Breverman (1998) 19 Cal.4th 142, 163; People v. Berry (1976) 18 Cal3d 509, 515.) Fear and panic are such emotions. (See People v. Breverman, supra, 19 Cal4th at pp. 163-164.) In rare circumstances, voluntary manslaughter is charged on its own. However, more often than not voluntary manslaughter is presented to the jury because it is a lesser offense included in the crime of murder. 3)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 in an attempt to defend against a charge of murder. This bill 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 raised by this bill 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 . 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 deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570.) Since 2006, the jury is also instructed to "not let bias, sympathy, prejudice or public opinion influence your decision. Bias includes, but is not limited to, bias for or against the witnesses, attorneys, defendant or alleged victim, based on disability, gender, nationality, national AB 2501 Page 5 origin, race or ethnicity, religion, gender identity, sexual orientation, age, or socioeconomic status." (CALCRIM No. 200.) It appears that while several defendants in California have relied on the defense, no jury in the state 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 concluded that this evidence failed to constitute legally adequate provocation was the 2011 case of victim Lawrence King. The defendant ultimately entered a guilty plea to second degree murder. This bill would require that the jury be instructed that the provocation is not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim's, or defendant's, actual or perceived gender, gender identity, gender expression, or sexual orientation. 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, where the defendant is charged with first-degree murder, this evidence could also be introduced 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 a jury, in a case 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 to present a complete defense is rooted in both the Due Process Clause of the Fourteenth Amendment, and in the Compulsory and Confrontation clauses of the Sixth Amendment. (Crane v. Kentucky (1986) 476 U.S. 683, 690; see also Strickland v. Washington (1984) 466 U.S. 668, 684-685.) This bill does not appear to limit the use of a "panic AB 2501 Page 6 defense" to show that a killing was not premeditated. 4)Practical Considerations : There may arise situations where a member of the group that this legislation seeks to protect may be prohibited from claiming voluntary manslaughter. For example, what if, like in the New Jersey case of Tyler Clementi, a gay man found out that his roommate was recording his sexual activities with another man; but rather committing suicide, the man confronted his roommate, stabbed, and killed him? A jury might find objectively reasonable provocation, since learning that someone was secretly recording one's sexual activities would elicit outrage in most people. However, under the proposed language of this bill, the defendant would be barred from relying on this provocation to support a verdict of voluntary manslaughter, rather than murder. The jury would be instructed that the provocation was not objectively reasonable because it resulted from the potential disclosure of the defendant's sexual orientation. There may be other situations where well-settled law on voluntary manslaughter is called into question. For example, what if a woman comes home to find her husband in bed with another man, and she kills the husband in a fit of rage? Catching one's spouse in an act of infidelity is the classic example of provocation to reduce murder to voluntary manslaughter. But, under the language of this bill, the jury may be prohibited from considering that theory because the anger may have been based in part on discovery of the victim's bi-sexual orientation. Moreover, should the Legislature change the law of voluntary manslaughter only to protect sexual orientation and gender identity? What about other groups with actual or perceived characteristics, such as race or religion that also face bias and prejudice? While this bill is most certainly well-intentioned, is this the best way to protect against trial by prejudice? 5)Argument in Support : Equality California , the sponsor of this bill, argues, "In cases in California and throughout the country, defendants have employed the so-called 'panic defense' in an attempt to reduce their charge and escape a murder conviction. In California, voluntary manslaughter is defined as the unlawful killing of a human being without malice which is committed upon a sudden quarrel or heat of AB 2501 Page 7 passion. The requirement that the crime is committed upon a sudden quarrel or heat of passion is what differentiates manslaughter from murder. Defendants have asserted in court that the discovery of a victim's sexual orientation or gender identity caused such a shock sufficient to meet the heat of passion standard. "In 2002, 17 year-old Gwen Araujo was beaten and strangled by four men in Newark, California. During two subsequent trials, the defendants' attorneys asserted that the defendants 'panicked' upon learning that Ms. Araujo was transgender. Their arguments, largely based on stereotypes about transgender women, were framed to play into societal bias against transgender people. The first trial resulted in a mistrial, and only after a subsequent trial were any of the perpetrators found guilty. No additional hate crime enhancements were added to their sentences and two of the four were only found guilty of manslaughter. ? "A panic defense allows a criminal defendant to claim that violence against the LGBT community is understandable or acceptable due to the victim's sexual orientation or gender identity. AB 2501 makes it very clear that it is never acceptable, and that there is no place for prejudice against people who are lesbian, gay, bisexual, or transgender. "AB 2501 ensures that defendants cannot use the so-called 'panic defense' in an attempt to lower a charge from murder to manslaughter or to escape conviction." 6)Argument in Opposition : The California Attorneys for Criminal Justice write, "There are ample safeguards currently available in the law to ensure that a person cannot set up their own standard of conduct. For instance, CALCRIM 570 specifically addresses this by instructing the jury that "The defendant is not allowed to set up (his/her) own standard of conduct. ?" "Furthermore, Penal Code section 1127h, the Gwen Araujo Justice for Victims Act, addresses a defendant's bias against the victim and the defense use of so-called 'panic strategies' based upon discovery or knowledge of an actual or perceived characteristic of their victim to decrease criminal culpability for the commission of a crime, instructing: 'Do not let bias, sympathy, prejudice or public opinion influence your decision. Bias includes bias against the victim or AB 2501 Page 8 victims, witnesses, or defendant based upon his or her disability, gender, nationality, race or ethnicity, religion, gender identity or sexual orientation.' According to the legislative history of this statute, '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.' "A duly instructed jury is in the best position to decide, after presentation of all the evidence, whether or not the facts and circumstances are sufficient to lead them to believe that a defendant's defense was reasonable and that they committed the offense in the heat of passion versus a more culpable state of mind. The proposed amendment to the voluntary manslaughter law is not necessary and will lead to constitutional infirmities, denying the ability for all facts to be raised and considered during a prosecution." 7)Current Legislation : AB 1508 (Gatto) provides, among other things, that it is not a defense to a criminal action or juvenile delinquency proceeding that the defendant did not understand the consequences of his or her actions because he or she was raised in an affluent or overly permissive household. AB 1508 failed passage in this Committee and reconsideration was granted. 8)Prior Legislation : AB 1160 (Lieber), Chapter 550, Statutes of 2006, made legislative findings and declarations expressing disapproval of the use of a "panic defense" by defendants in order to appeal to the societal bias of a juror based on the victim's actual or perceived gender or sexual orientation, and requires the court to instruct the jury that their decision should not be influenced by bias against a victim. REGISTERED SUPPORT / OPPOSITION : Support Equality California (Sponsor) California Communities United Institute California Police Chiefs Association National Association of Social Workers, California Chapter AB 2501 Page 9 Transgender Law Center Fifteen private individuals Opposition All of Us or None California Attorneys for Criminal Justice California Public Defenders Association Taxpayers for Improving Public Safety Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744