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.
***************