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