BILL ANALYSIS SENATE COMMITTEE ON Public Safety Senator John Vasconcellos, Chair S 1999-2000 Regular Session B 3 1 SB 31 (Peace) As AmendedJanuary 19, 1999 Hearing date: April 6, 1999 PenalCode MK:br (More) SB 31 (Peace) Page 2 MURDER: SPECIAL CIRCUMSTANCES HISTORY Source: Author Prior Legislation: SB 1799 (Calderon) 1998 held in Senate Appropriations. AB 490 (Ashburn) 1998 held in Senate Appropriations. SB 1878 (Kopp) Chapter 629, Statutes of 1998 SB 1079 (Calderon) failed Senate Public Safety 1/13/98 AB 1538 (Havice)currently in Senate Public Safety SB 1376 (Peace) 1996, (failed passage in Senate Committee on Criminal Procedure) AB 1741 (Bordonaro) 1996, (failed passage in Senate Committee on Criminal Procedure) SB 1404 (Ayala) 1996 (returned to and held in Senate Criminal Procedure) SB 32 (Peace) Chapter 477, Statutes of 1995; Proposition 195 SB 9 (Ayala) Chapter 478, Statutes of 1995; Proposition 196 Support: Poway City Council; San Diego County Board of Supervisors; Doris Tate Crime Victims Bureau; City of Chula Vista Opposition:Friends Committee on Legislation; California Public Defender's Association; California Attorneys for Criminal Justice; American Civil (More) SB 31 (Peace) Page 3 Liberties Union; California Catholic Conference KEY ISSUES SHOULD THE TERM "DELIBERATE" BE REMOVED FROM THE DEFINITION OF EXPRESS MALICE? SHOULD ANY MURDER WHICH IS PERPETRATED BY MEANS OF KIDNAPPING OR ARSON-AND THE KIDNAPPING OR ARSON IS DONE WITH THE INTENT TO KILL THE VICTIM OF THAT KIDNAPPING OR ARSON-BE ADDED TO THE SPECIFIC LIST OF FELONIES WHICH CONSTITUTE FIRST DEGREE MURDER? SHOULD ANY MURDER OF A VICTIM UNDER THE AGE OF FOURTEEN, WHEN THE DEFENDANT KNEW OR SHOULD HAVE KNOWN THE VICTIM WAS UNDER THE AGE OF FOURTEEN, BE ADDED TO THE SPECIFIC LIST OF FELONIES WHICH CONSTITUTE FIRST DEGREE MURDER? SHOULD THE MURDER OF A CHILD UNDER THE AGE OF FOURTEEN BE A SPECIAL CIRCUMSTANCE WHICH IF CHARGED AND FOUND TO BE TRUE WOULD BE PUNISHABLE BY DEATH? PURPOSE The purpose of this bill is to 1) remove the term deliberate from the definition of express malice; 2) add murder perpetrated by means of kidnapping or arson and murder of a child under the age of fourteen to the list of specified felonies which constitute first degree murder; and 3) make murder of a child under the age of fourteen a death penalty offense. Existing law defines malice, for the purposes of murder, as express or implied. "It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant (More) SB 31 (Peace) Page 4 heart." (Penal Code section 188) This bill removes the term "deliberate" from the definition of express malice and states that this is declaratory of existing law. Existing law provides that any murder that is perpetrated by specified means, including arson, rape, carjacking, robbery, burglary, mayhem and kidnapping or by any other kind of willful, deliberate premeditated killing is murder in the first degree. All other kinds of murder are murder in the second degree. (Penal Code section 189) This bill adds any murder, which is perpetrated by means of kidnapping or arson when the kidnapping or arson is done with the intent to kill the victim to the list of specified murders, which constitute murder in the first degree. This bill also adds any murder when the victim is under the age of fourteen years of age at the time of the murder and the defendant reasonably should have known that the victim is under fourteen years of age to the list of specified murders that constitute murder in the first degree. Existing law provides that the penalty for a defendant found guilty of murder in the first degree, where one or more special circumstance has been charged and found to be true, shall be by death or confinement in state prison for a term of life without the possibility of parole. (Penal Code section 190.2) This bill would make the first degree murder of a child under the age of fourteen a special circumstance which if charged and found to be true would be punishable by death or confinement in state prison for life without parole. COMMENTS 1. Need for the Bill (More) SB 31 (Peace) Page 5 According to the author: SB 31 has four main components. First, consistent with numerous decisions of the California Supreme Court it amends the definition of "express malice" to state that it consists solely of an intention to unlawfully kill another by removing the duplicative word "deliberate." Secondly, it clarifies that a murder where the defendant has the intent to kill is elevated from second to first degree murder where the methodology or means of committing the crime is kidnapping or arson. This is consistent with SB 1878 enacted last year and the Supreme Court's Gilbert decision in 1965. This issue has arisen in several instances where victims were kidnapped to kill them or they were intentionally killed by means of arson. There is no "dual use" issue for the reasons noted below. Third-and this is integral to the fourth change-it elevates a second degree murder to a first degree murder where the defendant intentionally kills a victim who is under fourteen years of age at the time of the murder, and the defendant knows or reasonably should know that the victim is under fourteen years of age. This issue has arisen in several instances where victims were kidnapped to kill them or they were intentionally killed by means of arson. Last, but not least, this bill makes a first degree murder (as revised by this bill) a special circumstance punishable by death or life without parole where the defendant intentionally kills a victim who is under fourteen years of age at the time of the murder, and the defendant knows or (More) SB 31 (Peace) Page 6 reasonably should know that the victim is under fourteen years of age. This latter change was in SB 1799 and AB 490 of last session, which passed the Senate Public Safety Committee. As to this last change, the laws of this state provide unique protections to victims under fourteen. This bill is consistent with that policy without an overbroad proposal. As to the "dual use" argument against the third and fourth provisions of this bill, that argument has been rejected by the United States Supreme Court and the California Supreme Court. It was also rejected when the Legislature enacted the 1993 and 1995 changes on drive-by shootings in the two Ayala laws. 2. Express Malice Existing statutory law defines express malice for purposes of murder as "a deliberate intention unlawfully to take away the life of a fellow creature." This bill removes the term "deliberate" and states that this is declarative of existing law. According to the author: The Supreme Court has on at least five separate occasions from 1945 to 1996, read the word "deliberate" out of the statute. See, e.g.: In re Christian S . (1994) 7 Cal. 4th 768, 780; People v. Nieto Benetiz (1992) 4 Cal. 4th 91, 103; People v. Saille , (1991) 54 Cal. 3d 1103, 1114-1115; People v. Valentine , (1946) 28 Cal. 2nd 121, 131-133; People v. Bender , (1945) 27 Cal. 2nd 164, 186. The Supreme Court in those decisions has held that the word "deliberate" is confusing and should be repealed. All that is required for express malice (More) SB 31 (Peace) Page 7 is intent to kill. An intentional killing under current law is murder and under the residual clause of section 189 is murder in the second degree. As such, an intent to kill is express malice. (See People v. Alvarado , (1991) 232 Cal. App. 3d 501, 505.) SHOULD THE TERM "DELIBERATE" BE REMOVED FROM THE DEFINITION OF EXPRESS MALICE AND SHOULD AN UNCODIFIED SECTION DECLARE THAT THIS IS DECLARATIVE OF EXISTING LAW? 3. Making Murder of a Child under the Age of Fourteen a Special Circumstance This bill adds to the list of special circumstances the intentional killing of a victim under fourteen years of age, when the defendant knew or reasonably should have known that the victim was under fourteen years of age. a. Meaningful Basis Required for Distinguishing between Special Circumstance Crimes and Other Murders Historically, California's special circumstance death penalty law was first enacted in 1973 by SB 450 (Deukmejian) in response to a line of U.S. Supreme Court edicts that the arbitrary imposition of the death penalty constitutes cruel and unusual punishment. Since those early conceptual stages, beginning with the first draft of SB 450, the Legislature has only considered application of the death penalty sanction to criminals who murdered under "special circumstances." The argument was that the death penalty should be reserved for the most serious of offenses. Trivializing it or applying it to general crimes could cause a diminution of its deterrent effect as well as subject it to constitutional challenge for failure to provide a "meaningful basis" for (More) SB 31 (Peace) Page 8 distinguishing between those who receive the sentence and those who do not. (See Godfrey v. Georgia (1980) 446 U.S. 420.) b. Murder Under existing law, murder is the unlawful killing of a human being with malice aforethought. Without malice, an unlawful killing is manslaughter. Murder is classified as either first degree or second degree. First degree murders are murders committed by means of destructive devices, explosives, knowing use of armor piercing bullets, lying in wait, torture, or any other kind of willful , deliberate and premeditated killing, or murders committed during the commission of a list of enumerated felonies (felony-murder). All other murders are second degree murders (i.e., no premeditation or deliberation). Murder in the first degree is punishable by imprisonment for twenty-five years to life unless specified "special circumstances" are charged and found to be true, then the punishment is either death or life imprisonment without the possibility of parole. The list of special circumstances include: murder for financial gain; the defendant was previously convicted of murder; the defendant has been convicted of more than one murder in the current proceeding; murder committed by means of a destructive devise concealed in a building; murder committed to avoid a lawful arrest; the victim was a peace officer, federal law enforcement officer, firefighter, witness to a crime, prosecutor, judge, elected official in retaliation for or to prevent the victim from carrying out his/her duties; the murder was unnecessarily torturous to the victim; the victim was killed because of their color, race, (More) SB 31 (Peace) Page 9 nationality, religion or country of origin; the felony was committed during the commission or attempted commission of specified felonies; the victim was poisoned. In addition, SB 1878 (Kopp) Chapter 629, Statutes of 1998, which will be on the March 2000 ballot provides that to prove the special circumstances of kidnapping or arson, if there is a specific intent to kill, it is only required that there be proof of the elements of those felonies. (1) Murder of a child under fourteen as a special circumstance This bill would make the first degree murder of a child under the age of fourteen a special circumstance which if charged and found to be true would be punishable by death or confinement in state prison for life without parole (LWOP). California Attorneys for Criminal Justice (CACJ) states that "in states where this special circumstance has been adopted, for example in Alabama, this has resulted in a dramatic increase in the number of teenagers facing the death penalty. Most often, where the victims are very young, their killers are also very young. The death penalty has even less deterrent effect on this group than on older offenders and, because of their young age, they are considerably more susceptible to redemption than older offenders." While Alabama's minimum age for execution is sixteen and California's is eighteen, a juvenile under eighteen charged with murder and charged as an adult could receive (LWOP) if this special circumstance were charged and proven to be true. CACJ also notes that this special circumstance (More) SB 31 (Peace) Page 10 will also result in the death penalty being applied in a large number of domestic violence cases where the abusers were often abused themselves. does adding an additional special circumstance to the death penalty statute make the statute subject to constitutional challenges because it fails to provide a meaningful basis for distinguishing between those who receive the sentence and those who do not? WILL THIS SPECIAL CIRCUMSTANCE RESULT IN MORE TEENAGERS SENTENCED TO DEATH OR LIFE WITHOUT PAROLE? WILL THIS SPECIAL CIRCUMSTANCE RESULT IN A LARGE NUMBER OF DOMESTIC VIOLENCE RELATED DEATH PENALTY CHARGES? (2) Broad statutes may mean less effective death penalty Alex Kozinski a judge on the 9th U.S. Circuit Court of Appeal and a proponent of the death penalty argued in an editorial in the New York Times that the expansion of crimes for which the death penalty applies is a "self-defeating" tactic. He notes that it is unlikely that the backlog on death row will ever be taken care of in part because there is not enough qualified attorneys to handle the appeals. He also notes that it is unlikely that the courts will be willing to overturn years of jurisprudence on the death penalty. Judge Kozinski suggests that: (More) SB 31 (Peace) Page 11 Instead of adopting a very expansive list of crimes for which the death penalty is an option, state legislatures should draft narrow statutes that reserve the death penalty for only the most heinous criminals. (Kozinski and Gallagher, "For an Honest Death Penalty", the New York Times, March 8, 1995, Section A, page 21, Column 1.) He recognizes that differentiating between "depraved killers" is not easy however, he argues that doing so will mean, "in a world of limited resources . . . we will sentence to death only those we intend to execute". He also believes it will also ensure that only the worst of the very bad will "suffer the death penalty." does continued expansion of the death penalty defeat its purpose since it merely adds more persons to the backlog on death row but does not ensure more executions? (3) Arbitrary and capricious (More) SB 31 (Peace) Page 12 The Supreme Court "[i]n Furman v. Georgia , . . . held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. Gregg v. Georgia , 428 U.S. 153, reaffirmed this holding: 'Where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life, should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action' 428 U.s., at 189 (opinion of STEWART, POWELL and STEVENS, JJ.). ( Godfrey v. Georgia , 446 U.S. 420, 427 (1979)) The American Civil Liberties Union (ACLU) points out that unlike other special circumstances, the one proposed in this bill applies solely on the age of the victim regardless of the circumstance of the murder. They assert that this is fundamentally arbitrary because: (More) SB 31 (Peace) Page 13 A person could receive the death penalty for killing a child who is thirteen years and eleven months old while a special circumstance would not apply to the killing of a child fourteen years and one day old. The ACLU notes that the other special circumstances which are based upon the victim's status such as a police officer are "arguably related to the states compelling need to protect these individuals in the performance of their duties" and do not apply if the killing is when they are off duty and not related to their official duties. is the application of a special circumstance based SOLELY on the victim's age and not the circumstances of the murder "arbitrary and capricious"? (4) Author believes that this special circumstance is valid (a) Author The author states that the narrowing function (adding children under fourteen) is valid since it has been held to be valid in other states that have this type of death eligible criteria. He states that there are twelve states that (More) SB 31 (Peace) Page 14 make the intentional murder of a child under fourteen years old a death-eligible factor and one state makes the intentional murder of a child under twelve years of age a death-eligible factor. According to the author: "to date, the Alabama Criminal Court of Appeal, Delaware Superior Court, and Pennsylvania Supreme Court have all specifically upheld the intentional child murder death qualifying factor and have done so on the basis that an intent to kill is required and that the law dating back to the Common Law of England had always provided special protections to minors under fourteen years old under the laws of almost every state. "These Courts have also rejected the notion that the victim's age, i.e. status was an irrational basis alluding to death sentences upheld for persons intentionally killing on-duty police officers." (b) Opposition CACJ disagrees with the author's statement noting, as stated above, in order to be constitutional a death penalty statute must provide a "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." "The requisite narrowing cannot be achieved by elevating more second degree murders to first degree, and then adding matching special circumstances." (Although the United States Supreme Court has found no inherent constitutional infirmity with the dual use of the same facts to both elevate a crime to first degree murder and to constitute and aggravating factor, its ruling came in the (More) SB 31 (Peace) Page 15 context of a death penalty scheme whereby the constitutionally required narrowing function was achieved by a restricted definition of first degree murder. Lowenfield v. Phelps (1988) 484 U.S. 231. California, in contrast, employs a broad definition of first degree murder and the requisite narrowing occurs by use of the special circumstances. People v. Bracigalupo (1993) 6 Cal. 4th 457, 468; Tuilaepa v. California (1994) 512 U.S. 967. Thus, the holding in Lowenfield in no way insulates California's statute from constitutional challenge.) c. Most egregious child murders already covered The opposition notes that most of the most egregious circumstances when a child is murdered are already covered by a special circumstance. For example "the recent case of Mathew Cecchi, the 9-year old boy murdered in Oceanside is a case-in-point. The defendant in that case is already facing the death penalty as a result of an existing special circumstance. Most non-familial, non-gang related or friend related murders of children would be covered under lying in wait, violation of 288 or 288a, or the kidnapping special circumstances." IS THE MOST EGREGIOUS CHILD MURDERS ALREADY COVERED BY SPECIAL CIRCUMSTANCES SUCH AS LYING IN WAIT, KIDNAPPING, OR 288 OR 288a VIOLATIONS? d. Other opposition CACJ notes that the expansion of the death penalty "is a violation of international law. The United States is a signatory to the International Covenant on Civil and Political Rights. As such it is obligated not to expand its existing death penalty provisions. This applies to the individual States (More) SB 31 (Peace) Page 16 as well as the federal government." The Friends Committee on Legislation states that the "inordinate cost of capital prosecutions and appeals, together with the burdens that such cases place on the courts, when compared to their very doubtful benefits to survivors and to society as a whole certainly suggest that it would be imprudent to expand the law at the present time." 4. Adding Murder by Means of Kidnapping, Arson and Murder of a Child under Fourteen to First Degree Murder a. Arson and Kidnapping (More) SB 31 (Peace) Page 17 According to the author: "It is an open legal question whether under the degree fixing procedure of section 189 whether an intentional killing that is second degree murder becomes first degree murder if it is perpetrated by means of committing a felony set forth in the felony murder rule set forth in 189. The effect is that if a crime is murder without resort to the felony murder rule, the fact that it is committed by kidnapping or arson, does that make it first degree . . . . This bill will state that intentional killing perpetrated by means of arson and kidnapping is murder in the first degree." The opposition questions the author's logic and notes that "having kidnapping and arson appear twice in section 189(a) particularly where the distinction between the two references is not readily apparent, renders the statute less, rather than more, comprehensible." SHOULD MURDER PERPETRATED BY MEANS OF KIDNAPPING OR ARSON BE ADDED A SECOND TIME TO THE LIST OF "FELONY MURDER" CRIMES IN SECTION 189? WILL ADDING KIDNAPPING OR ARSON A SECOND TIME TO SECTION 189 MAKE THE STATUTE MORE CONFUSING? b. Murder of a Child under the Age of Fourteen The author states that this bill "also elevates from second degree murder to first degree murder where the murderer intentionally kills the victim who was under 14 years of age at the time of the murder, and the murderer knows or reasonably should have known that the victim is under 14 years of age." The author asserts that this serves as the platform for making this form of murder death eligible. SB 31 (Peace) Page 18 As noted above, there must be a meaningful basis for distinguishing between a first degree murder and a first degree murder where the death sentence may be imposed. With California's broad first degree murder, it is not clear whether adding more to first degree murder and to the list of special circumstances allows for a meaningful distinction. WILL ADDING MURDER OF A CHILD UNDER FOURTEEN YEARS OF AGE TO BOTH FIRST DEGREE MURDER AND AS A SPECIAL CIRCUMSTANCE CONSTITUTE A MEANINGFUL DISTINCTION NECESSARY TO HAVE A VALID DEATH PENALTY STATUTE? DOES THIS ADD TO THE BLURRING OF THE LINE BETWEEN FIRST DEGREE MURDER AND FIRST DEGREE MURDER WITH A SPECIAL CIRCUMSTANCE? ***************