BILL ANALYSIS Ó
AB 2501
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Date of Hearing: May 14, 2014
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 2501 (Bonilla) - As Amended: April 24, 2014
Policy Committee: Public Safety
Vote: 5-1
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
Prohibits the use of the so-called panic defense to support a
finding of sudden quarrel or heat of passion, which is necessary
to reduce a charge of murder to manslaughter.
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
circumstances in which the victim made an unwanted,
non-forcible, romantic or sexual advance towards the defendant;
or circumstances where the defendant and the victim dated or had
a romantic or sexual relationship.
This bill specifies that nothing in this section precludes a
jury from considering all relevant facts to determine whether
the defendant was in fact provoked for purposes of establishing
subjective provocation.
FISCAL EFFECT
If the proposed limitation on a defense is ever demonstrably
used to avoid an acquittal or a reduced charge (manslaughter),
there would be increased costs for state incarceration, assuming
a second-degree murder conviction. For example, if this bill
resulted in a second-degree murder conviction every three years
(15-years-to-life), rather than manslaughter (3, 6, or 11
years), annual costs could exceed $200,000 in less than 10
years. It is not clear, however that the so-called panic
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defense has ever been successfully used to solidify a charge of
manslaughter rather than murder.
COMMENTS
1)Rationale . 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)Current law provides that manslaughter is killing without
malice. Manslaughter can be voluntary, involuntary, or
vehicular. Voluntary manslaughter is killing "upon a sudden
quarrel or heat of passion." (Penal Code Section 192(a).
California jury instructions (CALCRIM 570) states that a
killing occurs upon a sudden quarrel or heat of passion if,
the defendant was provoked, and as a result of the
provocation, that would cause a person of average disposition
to act rashly and without due deliberation, the defendant
acted rashly and under the influence of intense emotion that
obscured his or her reasoning or judgment.
3)Background . As discussed in the Public Safety Committee
analysis, the test for what constitutes legally adequate
provocation is clear: the jury must find that the discovery
of these facts would have led an ordinary, reasonable person
to act without due deliberation and reflection. 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
570.)
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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 origin, race or
ethnicity, religion, gender identity, sexual orientation, age,
or socioeconomic status." (CALCRIM 200.)
It appears that while several defendants in California have
relied on the defense, no jury in the state has found this
sort of "panic" evidence constituted sufficient provocation to
find that the crime was committed in the heat of passion.
4)Selective application? 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?
5)Support . Equality California, a sponsor of this bill states,
"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."
6)Opposition . CA Attorneys for Criminal Justice contends, "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. ?"
"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."
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7)Related 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 the Assembly Public
Safety Committee.
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.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081