BILL ANALYSIS Ó
AB 2195
Page 1
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:
AB 2195
Page 2
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;
AB 2195
Page 3
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;
AB 2195
Page 4
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
AB 2195
Page 5
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
AB 2195
Page 6
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
AB 2195
Page 7
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.
AB 2195
Page 8
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
AB 2195
Page 9
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
AB 2195
Page 10