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