BILL NUMBER: SB 1878 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 24, 1998
AMENDED IN ASSEMBLY JULY 16, 1998
AMENDED IN ASSEMBLY JUNE 25, 1998
AMENDED IN SENATE MAY 20, 1998
AMENDED IN SENATE APRIL 28, 1998
INTRODUCED BY Senator Kopp
(Principal coauthor: Senator Schiff)
FEBRUARY 19, 1998
An act to amend Section 190.2 of the Penal Code, relating
to murder, and calling an election to be consolidated with the
November 3, 1998, general election, to take effect immediately.
to murder.
LEGISLATIVE COUNSEL'S DIGEST
SB 1878, as amended, Kopp. Murder: special circumstances
: an election to be consolidated with the November 3, 1998,
statewide general election .
(1) Existing law, as amended by initiative statute, provides that
the penalty for a defendant found guilty of murder in the first
degree shall be death, or confinement in the state prison for a term
of life without the possibility of parole, where one or more special
circumstances have been charged and found to be true. In this
connection, existing law provides that a first degree murder
committed while lying in wait, and a murder committed in the
commission of specified felonies, including kidnapping and arson, are
special circumstances for sentencing purposes.
This bill would redefine lying in wait to instead provide that a
defendant who intentionally kills a victim by means of lying in wait
is subject to these provisions. The bill would also provide that a
defendant who is shown to have committed the elements of kidnapping
or arson in connection with a murder, is subject to these provisions
if there is specific intent to kill, notwithstanding the fact that
the kidnapping or arson was committed primarily or solely for the
purpose of facilitating the murder.
(2) The bill would state that the Legislature's intent in enacting
these provisions is to create a statutory exception to the
"independent purpose" doctrine, as established by specified cases.
(3) The bill would provide that it shall become effective only
when submitted to, and approved by, the voters of California.
(4) Existing provisions of the California Constitution permit the
Legislature to enact statutes calling elections, and make those
statutes effective immediately upon enactment.
This bill would call an election to be consolidated with the
November 3, 1998, statewide general election in order to submit this
measure to the voters for approval, if, on August 28, 1998, one or
more other measures are to be included in a supplemental ballot
pamphlet. Otherwise, the measure would be submitted for approval at
the first statewide general election to be held in 2000.
Because local elections officials would be required to undertake
additional duties to place this bill on the ballot at the
consolidated election, this bill would impose a state-mandated local
program.
(5) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that no reimbursement shall be made from
the State Mandates Claims Fund for costs mandated by the state
pursuant to this act, but would recognize that local agencies and
school districts may pursue any available remedies to seek
reimbursement for these costs.
(6) This bill would declare that it is to take effect immediately
as an act calling an election.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature in enacting
subparagraph (M) of paragraph (17) of subdivision (a) of Section
190.2 to create a statutory exception to the "independent purpose"
requirement of People v. Weidert (1985) 39 Cal. 3d 836 and People v.
Green (1980) 27 Cal. 3d 1, for the special circumstances of
kidnapping and arson, when specific intent to kill is proven.
SEC. 2. Section 190.2 of the Penal Code is amended to read:
190.2. (a) The penalty for a defendant who is found guilty of
murder in the first degree is death or imprisonment in the state
prison for life without the possibility of parole if one or more of
the following special circumstances has been found under Section
190.4 to be true:
(1) The murder was intentional and carried out for financial gain.
(2) The defendant was convicted previously of murder in the first
or second degree. For the purpose of this paragraph, an offense
committed in another jurisdiction, which if committed in California
would be punishable as first or second degree murder, shall be deemed
murder in the first or second degree.
(3) The defendant, in this proceeding, has been convicted of more
than one offense of murder in the first or second degree.
(4) The murder was committed by means of a destructive device,
bomb, or explosive planted, hidden, or concealed in any place, area,
dwelling, building, or structure, and the defendant knew, or
reasonably should have known, that his or her act or acts would
create a great risk of death to one or more human beings.
(5) The murder was committed for the purpose of avoiding or
preventing a lawful arrest, or perfecting or attempting to perfect,
an escape from lawful custody.
(6) The murder was committed by means of a destructive device,
bomb, or explosive that the defendant mailed or delivered, attempted
to mail or deliver, or caused to be mailed or delivered, and the
defendant knew, or reasonably should have known, that his or her act
or acts would create a great risk of death to one or more human
beings.
(7) The victim was a peace officer, as defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged
in the course of the performance of his or her duties, was
intentionally killed, and the defendant knew, or reasonably should
have known, that the victim was a peace officer engaged in the
performance of his or her duties; or the victim was a peace officer,
as defined in the above-enumerated sections, or a former peace
officer under any of those sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
(8) The victim was a federal law enforcement officer or agent who,
while engaged in the course of the performance of his or her duties,
was intentionally killed, and the defendant knew, or reasonably
should have known, that the victim was a federal law enforcement
officer or agent engaged in the performance of his or her duties; or
the victim was a federal law enforcement officer or agent, and was
intentionally killed in retaliation for the performance of his or her
official duties.
(9) The victim was a firefighter, as defined in Section 245.1,
who, while engaged in the course of the performance of his or her
duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a firefighter
engaged in the performance of his or her duties.
(10) The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in any
criminal or juvenile proceeding, and the killing was not committed
during the commission or attempted commission, of the crime to which
he or she was a witness; or the victim was a witness to a crime and
was intentionally killed in retaliation for his or her testimony in
any criminal or juvenile proceeding. As used in this paragraph,
"juvenile proceeding" means a proceeding brought pursuant to Section
602 or 707 of the Welfare and Institutions Code.
(11) The victim was a prosecutor or assistant prosecutor or a
former prosecutor or assistant prosecutor of any local or state
prosecutor's office in this or any other state, or of a federal
prosecutor's office, and the murder was intentionally carried out in
retaliation for, or to prevent the performance of, the victim's
official duties.
(12) The victim was a judge or former judge of any court of record
in the local, state, or federal system in this or any other state,
and the murder was intentionally carried out in retaliation for, or
to prevent the performance of, the victim's official duties.
(13) The victim was an elected or appointed official or former
official of the federal government, or of any local or state
government of this or any other state, and the killing was
intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
(14) The murder was especially heinous, atrocious, or cruel,
manifesting exceptional depravity. As used in this section, the
phrase "especially heinous, atrocious, or cruel, manifesting
exceptional depravity" means a conscienceless or pitiless crime that
is unnecessarily torturous to the victim.
(15) The defendant intentionally killed the victim by means of
lying in wait.
(16) The victim was intentionally killed because of his or her
race, color, religion, nationality, or country of origin.
(17) The murder was committed while the defendant was engaged in,
or was an accomplice in, the commission of, attempted commission of,
or the immediate flight after committing, or attempting to commit,
the following felonies:
(A) Robbery in violation of Section 211 or 212.5.
(B) Kidnapping in violation of Section 207, 209, or 209.5.
(C) Rape in violation of Section 261.
(D) Sodomy in violation of Section 286.
(E) The performance of a lewd or lascivious act upon the person of
a child under the age of 14 years in violation of Section 288.
(F) Oral copulation in violation of Section 288a.
(G) Burglary in the first or second degree in violation of Section
460.
(H) Arson in violation of subdivision (b) of Section 451.
(I) Train wrecking in violation of Section 219.
(J) Mayhem in violation of Section 203.
(K) Rape by instrument in violation of Section 289.
(L) Carjacking, as defined in Section 215.
(M) To prove the special circumstances of kidnapping in
subparagraph (B), or arson in subparagraph (H), if there is specific
intent to kill, it is only required that there be proof of the
elements of those felonies. If so established, those two special
circumstances are proven even if the felony of kidnapping or arson is
committed primarily or solely for the purpose of facilitating the
murder.
(18) The murder was intentional and involved the infliction of
torture.
(19) The defendant intentionally killed the victim by the
administration of poison.
(20) The victim was a juror in any court of record in the local,
state, or federal system in this or any other state, and the murder
was intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
(21) The murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another
person or persons outside the vehicle with the intent to inflict
death. For purposes of this paragraph, "motor vehicle" means any
vehicle as defined in Section 415 of the Vehicle Code.
(b) Unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an
actual killer, as to whom the special circumstance has been found to
be true under Section 190.4, need not have had any intent to kill at
the time of the commission of the offense which is the basis of the
special circumstance in order to suffer death or confinement in the
state prison for life without the possibility of parole.
(c) Every person, not the actual killer, who, with the intent to
kill, aids, abets, counsels, commands, induces, solicits, requests,
or assists any actor in the commission of murder in the first degree
shall be punished by death or imprisonment in the state prison for
life without the possibility of parole if one or more of the special
circumstances enumerated in subdivision (a) has been found to be true
under Section 190.4.
(d) Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of a felony enumerated in
paragraph (17) of subdivision (a) which results in the death of some
person or persons, and who is found guilty of murder in the first
degree therefor, shall be punished by death or imprisonment in the
state prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.
The penalty shall be determined as provided in this section and
Sections 190.1, 190.3, 190.4, and 190.5.
SEC. 3. Section 1 of this act affects an initiative statute and
shall become effective only when submitted to, and approved by, the
voters of California, pursuant to subdivision (c) of Section 10 of
Article II of the California Constitution.
SEC. 4. (a) An election is hereby called to be held throughout the
state on November 3, 1998. The election shall be consolidated with
the statewide general election to be held on that date. The
consolidated election shall be held and conducted in all respects as
if there were only one election and one form of ballot shall be used.
(b) Notwithstanding Sections 9040, 9043, 9044, 9061, and 9082 of
the Elections Code, or any other provision of law, the Secretary of
State shall submit Section 190.2 of the Penal Code, as amended by
Senate Bill 1878 of the 1997-98 Regular Session, to the voters at the
November 3, 1998, statewide general election.
(c) Notwithstanding Section 9051 of the Elections Code, or any
other provision of law, the Attorney General shall prepare and return
to the Secretary of State a ballot title for Senate Bill 1878 of the
1997-98 Regular Session as expeditiously as possible, but not later
than two days after the effective date of this act.
(d) Notwithstanding Section 9087 of the Elections Code, or any
other provision of law, the Legislative Analyst shall prepare an
impartial analysis of Section 190.2 of the Penal Code, as amended by
Senate Bill 1878 of the 1997-98 Regular Session, as expeditiously as
possible, but not later than five days after the effective date of
this act.
(e) The Secretary of State shall, if possible, include in the
ballot pamphlet, mailed pursuant to Section 9094 of the Elections
Code, the information specified in Section 9084 of the Elections Code
regarding Section 190.2 of the Penal Code, as amended by Senate Bill
1878 of the 1997-98 Regular Session. If that inclusion is not
possible, the Secretary of State shall publish a supplemental ballot
pamphlet regarding the constitutional amendment to be mailed with the
ballot pamphlet. If the supplemental ballot pamphlet cannot be
mailed with the ballot pamphlet, the supplemental ballot pamphlet
shall, notwithstanding Section 9094 of the Elections Code, be mailed
at least 14 days before the election.
(f) Notwithstanding Section 13115 of the Elections Code, Section
190.2, as amended by Senate Bill 1878 of the 1997-98 Regular Session,
shall be placed on the ballot following all other ballot measures.
(g) Where voting is done by means of voting machines used pursuant
to law in the manner that carries out the intent of this section
that Section 190.2, as amended by Senate Bill 1878 of the 1997-98
Regular Session, be properly placed before, and duly considered by,
the voters at the November 3, 1998, statewide general election, the
use of the voting machines is in compliance with this section.
SEC. 5. (a) If, on August 28, 1998, Section 190.2 of the Penal
Code, as amended by Senate Bill 1878 of the 1997-98 Regular Session,
is the only measure that would appear on a supplemental ballot
pamphlet, then Section 190.2 of the Penal Code, as amended by Senate
Bill 1878 of the 1997-98 Regular Session, may not be submitted to the
voters on November 3, 1998, and an election for that purpose may not
be called and consolidated with the November 3, 1998, statewide
general election to be held on that date. Instead, Section 190.2 of
the Penal Code, as amended by Senate Bill 1878 of the 1997-98 Regular
Session, shall appear on the first statewide general election that
will be held in the year 2000.
(b) If, on August 28, 1998, one or more other measures will be
included in a supplemental ballot pamphlet, so that Section 190.2 of
the Penal Code, as amended by Senate Bill 1878 of the 1997-98 Regular
Session, would not be the sole measure requiring publication in the
supplemental ballot pamphlet, then Section 190.2 of the Penal Code,
as amended by Senate Bill 1878 of the 1997-98 Regular Session, shall
be published in the supplemental ballot pamphlet, as provided in
Section 4 of this act, and Section 190.2 of the Penal Code, as
amended by Senate Bill 1878 of the 1997-98 Regular Session, shall be
submitted to the voters at the November 3, 1998, statewide general
election, as provided in Section 4 herein.
SEC. 6. No reimbursement shall be made from the State Mandates
Claims Fund pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code for costs mandated by
the state pursuant to this act. It is recognized, however, that a
local agency or school district may pursue any remedies to obtain
reimbursement available to it under Part 7 (commencing with Section
17500) and any other provisions of law.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.
SEC. 7. Section 4 of this act calls an election pursuant to
paragraph (3) of subdivision (c) of Section 8 of Article IV of the
California Constitution, and shall therefore take effect immediately.