BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

                                                                     2
                                                                     5
                                                                     0
          AB 2501 (Bonilla)                                          1
          As Amended April 24, 2014 
          Hearing date:  June 24, 2014
          Penal Code
          MK:mc
           
                                VOLUNTARY MANSLAUGHTER  

                                       HISTORY

          Source:  Equality California; Attorney General Kamala Harris

          Prior Legislation: AB 1160 (Lieber) - 2006 as introduced

          Support: Gay Men's Chorus of Los Angeles; California Police  
                   Chiefs Association; Children's Hospital Los Angeles;  
                   LGBTQ Connection; Lyon-Martin Health Services; Mental  
                   Health America of Northern California; National  
                   Association of Social Workers; Transgender Law Center;  
                   Anti-Defamation League

          Opposition:California Attorneys for Criminal Justice; All Of Us  
                   Or None; California Public Defenders Association;  
                   Taxpayers for Improving Public Safety

          Assembly Floor Vote:  Ayes 50 - Noes 18


                                         KEY ISSUE
           
          SHOULD THE LAW PROHIBIT THE USE OF THE "PANIC DEFENSE" TO SUPPORT A  
          FINDING OF SUDDEN QUARREL OR HEAT OF PASSION IN ORDER TO REDUCE  
          MURDER TO MANSLAUGHTER? 




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 2





                                          
                                       PURPOSE
          
          The purpose of this bill is to prohibit 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.
           
           Existing law  provides that murder is the unlawful killing of a  
          human being, or a fetus, with malice aforethought.  (Penal Code,  
          § 187.) 


           Existing law  provides that murder is divided into two degrees,  
          and that a willful, deliberate and premeditated killing is first  
          degree murder.  (Penal Code, § 189.) 


           Existing law  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.  (Penal Code, § 190.) 


           Existing law  provides that a person who commits first degree  
          murder that is a hate crime shall be punished by a term of life  
          without parole.  (Penal Code, § 190.03 (a).) 

           Existing law  provides that manslaughter is the unlawful killing  
          of a human being without malice.  (Penal Code, § 192.) 


           Existing law  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.  (Penal Code, § 192.) 






                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 3



           Existing law  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.) 

           Existing law  punishes voluntary manslaughter with imprisonment  
          in the state prison for 3, 6, or 11 years.  (Penal Code, § 193  
          (a).) 

           Existing law  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.  (Penal Code,  
          § 422.55.) 


           Existing law  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."  (Penal  
          Code, § 422.56 (c).) 


           Existing law  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.  (Evidence Code, § 352.) 

           This bill  provides that for the purposes of determining sudden  




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 4



          quarrel or heat of passion for voluntary manslaughter, the  
          provocation was 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  
          under circumstances in which the victim made an unwanted  
          nonforcible romantic or sexual advance towards the defendant, or  
          if the defendant and victim dated or had a romantic or sexual  
          relationship.  

           This bill  provides that it shall not preclude the jury from  
          considering all relevant facts to determine whether the  
          defendant was in fact provoked for purposes of establishing  
          subjective provocation.
                                          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy, known as "ROCA"  
          (which stands for "Receivership/ Overcrowding Crisis  
          Aggravation"), the Committee held measures that created a new  
          felony, expanded the scope or penalty of an existing felony, or  
          otherwise increased the application of a felony in a manner  
          which could exacerbate the prison overcrowding crisis.  Under  
          these principles, ROCA was applied as a content-neutral,  
          provisional measure necessary to ensure that the Legislature did  
          not erode progress towards reducing prison overcrowding by  
          passing legislation, which would increase the prison population.  
            




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 5




          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order requiring the state to reduce its prison  
          population to 137.5 percent of design capacity.  The State  
          submitted that the, ". . .  population in the State's 33 prisons  
          has been reduced by over 24,000 inmates since October 2011 when  
          public safety realignment went into effect, by more than 36,000  
          inmates compared to the 2008 population . . . , and by nearly  
          42,000 inmates since 2006 . . . ."  Plaintiffs opposed the  
          state's motion, arguing that, "California prisons, which  
          currently average 150% of capacity, and reach as high as 185% of  
          capacity at one prison, 
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % inmate population cap by December 31, 2013.  

          The Three-Judge Court then ordered, on April 11, 2013, the state  
          of California to "immediately take all steps necessary to comply  
          with this Court's . . . Order . . . requiring defendants to  
          reduce overall prison population to 137.5% design capacity by  
          December 31, 2013."  On September 16, 2013, the State asked the  
          Court to extend that deadline to December 31, 2016.  In  
          response, the Court extended the deadline first to January 27,  
          2014 and then February 24, 2014, and ordered the parties to  
          enter into a meet-and-confer process to "explore how defendants  
          can comply with this Court's June 20, 2013 Order, including  
          means and dates by which such compliance can be expedited or  
          accomplished and how this Court can ensure a durable solution to  
          the prison crowding problem."

          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 6



          following interim and final population reduction benchmarks:

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and
                 137.5% of design bed capacity by February 28, 2016. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   


          In a status report to the Court dated May 15, 2014, the state  
          reported that as of May 14, 2014, 116,428 inmates were housed in  
          the State's 34 adult institutions, which amounts to 140.8% of  
          design bed capacity, and 8,650 inmates were housed in  
          out-of-state facilities.   

          The ongoing prison overcrowding litigation indicates that prison  
          capacity and related issues concerning conditions of confinement  
          remain unresolved.  While real gains in reducing the prison  
          population have been made, even greater reductions may be  
          required to meet the orders of the federal court.  Therefore,  
          the Committee's consideration of ROCA bills -bills that may  
          impact the prison population - will be informed by the following  
          questions:

                 Whether a measure erodes realignment and impacts the  
               prison population;
                 Whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 Whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 Whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and,
                 Whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 7




                                      COMMENTS

          1.    Need for the Bill  

          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.  (Penal 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 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  




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 8



          Cal3d 509, 515.)  ear 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.    "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  




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 9



               victim, based on disability, gender, nationality, national  
               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  




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 10



               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 defense" to show  
               that a killing was not premeditated. 

          4.    American Bar Association Resolution  
           
          In August of 2013 the American Bar Association adopted a  
          resolution encouraging states to legislate against the "gay  
          panic defense."  The resolution states:

               RESOLVED, That the American Bar Association urges  
               federal, tribal, state, local and territorial  
               governments to take legislative action to curtail the  
               availability and effectiveness of the "gay panic" and  
               "trans panic" defenses, which seek to partially or  
               completely excuse crimes such as murder and assault on  
               the grounds that the victim's sexual orientation or  
               gender identity is to blame for the defendant's violent  
               reaction.  Such legislative action should include:

                   (a)        Requiring courts in any criminal trial  
                     or proceeding, upon the request of a party, to  
                     instruct the jury not to let bias, sympathy,  
                     prejudice, or public opinion influence its  
                     decision about the victims, witnesses, or  
                     defendants based upon sexual orientation or  
                     gender identity; and
                   (b)        Specifying that neither a non-violent  
                     sexual advance, nor the discovery of a person's  
                     sex or gender identity, constitutes legally  
                     adequate provocation to mitigate the crime of  
                     murder to manslaughter, or to mitigate the  
                     severity of any non-capital crime.

          5.    Support  

          The sponsor of this bill states:




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 11




               In cases in California and throughout the country,  
               defendants have employed the socalled "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 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.

               In a 2005 case in Fresno, California, Estanislao  
               Martinez stabbed Joel Robles 20 times after discovering  
               Robles was transgender.  Martinez asserted a panic  
               defense and eventually pled guilty to voluntary  
               manslaughter.  He was sentenced to just four years, the  
               minimum penalty.  Three years ago in Oxnard,  
               California, a 14 year-old student shot classmate Larry  
               King at school.  He asserted a panic defense, arguing  
               the victim was often sexually aggressive with him.   
                                           During the first trial, the jury deadlocked, with 7 of  
               the 12 jurors voting for voluntary manslaughter, and 5  




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 12



               of the 12 voting for first or second degree murder.   
               The defendant subsequently pled guilty to second degree  
               murder. 

               These cases illustrate how panic defenses have been  
               successfully employed to take advantage of stereotypes  
               and biases and as a result, obscure justice. 

               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 B 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.  

























                                                                     (More)











          6.    Opposition  

          California Attorneys for Criminal Justice opposes this bill,  
          stating:

               The crux of the debate surrounding this bill is when  
               California should punish someone for murder instead of  
               voluntary manslaughter; or more specifically, should  
               California narrow eligibility for voluntary  
               manslaughter?  Both murder and manslaughter involve an  
               unlawful killing.  Both result in state prison  
               sentences.  Murder, however, carries a much longer  
               sentence because it requires an act that is  
               "premeditated" and with "deliberation".

               Under current law, someone who kills another and who as  
               a result of "provocation" acts "rashly" and "under the  
               influence of intense emotion that obscured her  
               reasoning" may be convicted of manslaughter instead of  
               murder.  (People v. Gutierrez (2002) 28 Cal.4th 1083,  
               1144, 124 Cal.Rptr.2d 373, 52 P.3d 572.) 

               Unfortunately AB 2501 undermines core legal principles  
               of the theory of manslaughter and potentially exposes  
               someone who acts without "premeditation" and  
               "deliberation" to a charge of murder and a potential  
               life sentence.  Despite the valid objectives of the  
               proponents, any new law must not flip cornerstone legal  
               concepts awry.

               The recent amendments to AB 2501 eliminates a "heat of  
               passion" defense any time any of the listed factors are  
               part of a larger totality of circumstances of a case,  
               thereby negating the relevance of numerous other facts.  


               Consider the following:  A person is repeatedly  
               harassed by coworker A.  The antics include a wide  
               array of inappropriate comments, threats and insults  




                                                                     (More)






                                                          AB 2501 (Bonilla)
                                                                     Page 14



               over a prolonged period of time.  Ultimately, the  
               coworkers find themselves in a bar and the victim of  
               the harassment finally stands up to the coworker.  A  
               yelling and pushing match ensues.  During the heated  
               exchange, A pulls out his phone and displays a  
               photograph of the other person in a same-sex activity,  
               thereby "outing" the coworker.  The coworker then grabs  
               a beer bottle and repeatedly hits A, resulting in his  
               death.  

               Pursuant to AB 2501, the prosecutor can only obtain a  
               conviction on murder and not manslaughter because the  
               bill precludes a finding of reasonableness if a case  
               involves "potential disclosure" of a "defendant's?  
               sexual orientation."  It is difficult to imagine that  
               this outcome is consistent with the intent of the  
               proponents of AB 2501.  However, it is indicative of  
               the overly broad language contained in the April 24th  
               version of the bill. 


                                   ***************