BILL ANALYSIS                                                                                                                                                                                                    







             SENATE COMMITTEE ON Public Safety
                   Senator John Vasconcellos, Chair   S
                      1999-2000 Regular Session       B
                                                      
                                                      3
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SB 31  (Peace)                                        
As AmendedJanuary 19, 1999                            
Hearing date: April 6, 1999
PenalCode
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                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




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          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  




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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  




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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  




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    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  




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    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  




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       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,  




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       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  




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          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:




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              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




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          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:








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            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  




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            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  




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            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  




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       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





























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       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.











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       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?

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