BILL ANALYSIS Ó
AB 2501
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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.)
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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.)
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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
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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
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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
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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
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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
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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
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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