BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2195


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          Date of Hearing:  April 19, 2016
          Chief Counsel:     Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                       2195 (Bonilla) - As Amended  April 5, 2016




          SUMMARY:  Requires the Department of Justice (DOJ) in  
          consultation with the California Department of Corrections and  
          Rehabilitation (CDCR) to collected data on the number of persons  
          convicted and sentenced for felony murder.   Specifically, this  
          bill:  

          1)Provides that on or before January 1, 2018, the DOJ in  
            consultation with CDCR shall collect data on both of the  
            following:

             a)   The number of persons currently convicted and sentenced  
               for first degree felony murder; and,

             b)   The number of persons currently convicted and sentenced  
               for second degree felony murder'

          2)Requires the DOJ to disaggregate the felony murder data by  
            county, and to update the data annually.

          3)Requires the DOJ to post the felony murder data in a prominent  
            place on the DOJ Internet Web site.

          EXISTING LAW:  








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          1)Provides that murder is the unlawful killing of a human being,  
            or a fetus, with malice aforethought.  (Pen.  Code, § 187.)

          2)Provides that malice aforethought may be express or implied.   
            Malice aforethought is expressed when the perpetrator  
            manifests a deliberate intention to take the life of another  
            human.  Malice aforethought is implied when there was "no  
            considerable provocation" for the killing, or when the  
            circumstances surrounding the killing show "an abandoned and  
            malignant heart."  (Pen. Code, § 188.)

          3)Classifies murder according to degrees, either first degree or  
            second degree.  (Pen. Code, § 189.)

          4)Provides that first-degree murder includes murders perpetrated  
            by destructive device or explosive; knowing use of ammunition  
            designed primarily to penetrate metal or armor; poison; lying  
            in wait; torture; any kind of willful, deliberate, and  
            premeditated killing; discharging a firearm from a motor  
            vehicle, intentionally at another person outside of the  
            vehicle with the intent to inflict death; and any murder  
            committed in the perpetration of, or attempt to perpetrate:

             a)   Arson;

             b)   Rape;

             c)   Carjacking;

             d)   Robbery;

             e)   Burglary;

             f)   Mayhem;

             g)   Kidnapping;

             h)   Train wrecking;

             i)   Sodomy;









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             j)   Lewd or lascivious acts on a child under age 14;

             aa)  Oral copulation; or,

             bb)  Penetration of genital or anal openings with a foreign  
               object.  (Pen. Code, § 189.)

          5)Provides that second-degree murders include all murders not  
            enumerated as first degree. Pen. Code, § 189.)

          6)Provides that homicide that occurs as a direct causal result  
            of the commission or attempted commission of a felony  
            inherently dangerous to human life, other than a felony  
            enumerated in Penal Code Section 189, constitutes at least  
            second-degree murder.  (  People v. Patterson  (1989) 49 Cal. 3d  
            615, 620.)

          7)Specifies that first-degree murder without "special  
            circumstances" (Penal Code Section 190.2) is punishable in the  
            state prison for a term of 25-years-to-life.  (Penal Code  
            Section 190.)

          8)Specifies that first-degree murder with "special  
            circumstances" (Penal Code Section 190.2) is punishable by  
            death, or in the state prison for life without the possibility  
            of parole.  (Pen. Code, § 190.)

          9)Limits imposition of the death penalty to those first-degree  
            murder cases where the trial jury finds true at least one  
            "special circumstance."  Currently, the Penal Code lists 22  
            separate categories of "special circumstances":

             a)   The murder was intentional and carried out for financial  
               gain;

             b)   The defendant was convicted previously of first- or  
               second-degree murder;

             c)   The defendant, in the present proceeding, has been  
               convicted of more than one offense of first- or  
               second-degree murder;









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             d)   The murder was committed by means of a destructive  
               device planted, hidden or concealed in any place, area,  
               dwelling, building or structure;

             e)   The murder was committed to avoid arrest or make an  
               escape;

             f)   The murder was committed by means of a destructive  
               device that the defendant mailed or delivered, or attempted  
               to mail or deliver;

             g)   The victim was a peace officer who was intentionally  
               killed while performing his/her duties and the defendant  
               knew or should have known that; or the peace officer/former  
               peace officer was intentionally killed in retaliation for  
               performing his/her duties;

             h)   The victim was a federal law enforcement officer who was  
               intentionally killed [the same as Item (g) above];

             i)   The victim was a firefighter who was intentionally  
               killed while performing his/her duties;

             j)   The victim was a witness to a crime and was  
               intentionally killed to prevent his/her testimony, or  
               killed in retaliation for testifying;

             aa)  The victim was a local, state or federal prosecutor  
               murdered in retaliation for, or to prevent the performance  
               of, official duties;

             bb)  The victim was a local, state, or federal judge murdered  
               in retaliation for, or to prevent the performance of,  
               official duties;

             cc)  The victim was an elected or appointed official of  
               local, state or federal government murdered in retaliation  
               for, or to prevent the performance of, official duties;

             dd)  The murder was especially heinous, atrocious, or cruel,  
               "manifesting exceptional depravity."  "Manifesting  
               exceptional depravity" is defined "a conscienceless or  








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               pitiless crime that is unnecessarily torturous";

             ee)  The defendant intentionally killed the victim while  
               lying in wait;

             ff)  The victim was intentionally killed because of his or  
               her race, color, religion, nationality, or country of  
               origin;

             gg)  The murder was committed while the defendant was engaged  
               in, or was an accomplice in, the commission of, attempted  
               commission of, or immediate flight after, committing or  
               attempting to commit the following crimes:  robbery;  
               kidnapping; rape; sodomy; lewd or lascivious act on a child  
               under age 14; oral copulation; burglary; arson; train  
               wrecking; mayhem; rape by instrument; carjacking; torture;  
               poison; the victim was a local, state or federal juror  
               murdered in retaliation for, or to prevent the performance  
               of his/her official duties; and, the murder was perpetrated  
               by discharging a firearm from a vehicle. 

             hh)  The murder was intentional and involved the infliction  
               of torture;

             ii)  The defendant intentionally killed the victim by the  
               administration of poison;

             jj)  The victim was a juror and the murder was intentionally  
               carried out in retaliation for, or to prevent the  
               performance of, the victim's duties as a juror;

             aaa) The murder was intentional and committed by discharging  
               a firearm from a motor vehicle; or,

             bbb) The defendant intentionally killed the victim while  
               actively participating in a criminal street gang.  (Pen.  
               Code, § 190.2.)

          10)Requires three separate findings at the trial in order to  
            qualify for the death penalty:  (a) guilty of first-degree  
            murder, (b) a finding that at least one of the charged  
            "special circumstances" is true, and (c) the jury's  








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            determination that death is appropriate rather than life in  
            prison without the possibility of parole (LWOP).  The first  
            two findings occur when the jury deliberates at the close of  
            the "guilt phase."  (Penal Code Sections 190.1 and 190.4.)   
            The penalty determination takes place during the "penalty  
            phase" where the either the judge or jury considers factors in  
            aggravation or mitigation.  (Penal Code Section 190.3)  If the  
            jury fixes the penalty at death, the judge still retains the  
            power to reject the jury's penalty verdict and impose LWOP.   
            (Pen. Code, § 190.4(e).)

          11)Provides that during the penalty phase of a death penalty  
            trial, the prosecution and the defendant may present evidence  
            relevant to aggravation, mitigation, and sentence.  In  
            determining the penalty to be imposed, the trier of fact may  
            take into account any relevant enumerated factors.  Such  
            factors in aggravation or mitigation include: 

             a)   The circumstances of the crime and the existence of any  
               special circumstances;

             b)   The presence or absence of threats or the actual use of  
               force or violence;

             c)   Prior felony convictions;

             d)   Whether or not the offense was committed while the  
               defendant was under the influence of extreme mental or  
               emotional disturbance;

             e)   Whether or not the victim was a participant or consented  
               to the homicidal act;

             f)   Whether or not the offense was committed under  
               circumstances that the defendant believed to be a moral  
               justification or extenuation of his or her conduct.

             g)   Whether or not the defendant acted under extreme duress  
               or under the substantial domination of another person;

             h)   Whether or not at the time of the offense, the capacity  
               of the defendant to appreciate the criminality of his or  








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               her conduct or to conform his or her conduct to the law was  
               impaired as a result of mental disease, defect, or the  
               effects of intoxication;

             i)   The age of the defendant at the time of the crime;

             j)   Whether or not the defendant was an accomplice and his  
               or her participation in the offense was relatively minor;  
               or,

          aa)Any other circumstance that extenuates the gravity of the  
            crime, though not a legal excuse for the crime.  (Pen. Code,  
            §190.3.)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "Over 40,000  
            people are serving life sentences in the California state  
            prison system.  It is both alarming and unacceptable that we  
            do not know how many people are convicted under the felony  
            murder rule, a law that can impose the harshest an ultimate  
            sentence of death or life without the possibility of parole,  
            for those whose crime may not be proportionate to their  
            punishment.

          2)Data Not Readily Available:  This bill requires DOJ in  
            consultation with CDCR to gather data on persons currently  
            convicted and sentence to felony murder of the first or second  
            degree.  Murder is classified according to degrees, either  
            first or second degree murder.  Any killing in the  
            perpetration of specified felonies is murder in the first  
            degree (felony murder).  Any death that that occurs as a  
            direct causal result of the commission or attempted commission  
            of a felony inherently dangerous to human life, other than a  
            felony enumerated in Penal Code Section 189, constitutes  
            second degree felony murder.  Murder in the first degree is  
            either, intentional and premeditated or felony murder, and  
            murder in the second degree is either unpremeditated or as the  
            result of the commission of an inherently dangerous felony.









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          The problem in collecting data on felony murder is that the  
            abstract of judgement in murder cases only reflect conviction  
            of murder in the first or second degree.  It does not reflect  
            the basis for the conviction.  Felony murder is not a separate  
            charge which can be easily tracked.  A murder defendant is  
            charged with murder in violation of Penal Code Section 187 and  
            the degree is determined by the trier of fact at trial, or is  
            admitted by the defendant when entering a plea.  There isn't  
            any way to determine from the abstract of judgment if a first  
            or second degree murder conviction was premeditated,  
            unpremeditated, or felony murder.  This has been confirmed by  
            both DOJ and CDCR.

          The only exception, where the conviction would be broken down,  
            is in murder cases where there is a special circumstance which  
            makes the offense punishable by death or life without parole.   
            In these cases, a felony murder special circumstance (Penal  
            Code §190.2 (a) (17)) would be alleged in the charging  
            document and reflected in the abstract of judgment if found to  
            be true.  These death penalty/LWOP cases, where data can be  
            obtained, are only a portion of the overall murder cases.



          It would appear that the only way to gather the data requested  
            in this bill would be a case file inspection in the court in  
            the jurisdiction where the conviction was obtained, and that  
            might only be fruitful if there had been a jury trial and you  
            could review the jury instructions to determine the theory  
            upon which the conviction was based.

          REGISTERED SUPPORT / OPPOSITION:

          Support

          A New PATH 


          A New Way of Life Re-Entry Project
          American Civil Liberties Union
          American Friends Service Committee
          Anti-Recidivism Coalition








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          Asian Americans Advancing Justice-California
          California Attorneys for Criminal Justice
          California Coalition for Women Prisoners 
          California Families Against Solitary Confinement 
          California Prison Focus
          California Prison Moratorium Project
          California Public Defenders Association
          Community Works West
          Courage Campaign
          Drug Policy Alliance
          Ella Baker Center for Human Rights
          Fair Chance Project
          Felony Murder Elimination Project
          Friends Committee on Legislation
          Justice Now
          Legal Services for Prisoners with Children
          Loyola Law School Alarcon Advocacy Center
          Loyola Law School project for the Innocent
          National Center for Youth Law
          Northern California Innocence Project
          Pacific Juvenile Defendant Center
          Prison Law Office
          Prison Policy Initiative
          Rubicon Programs
          Silicon Valley De-Bug
          Time for Change Foundation
          W. Haywood Burns Institute
          Opposition
          
          None
            
          Analysis Prepared  
          by:              Gregory Pagan / PUB. S. / (916) 319-3744

















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