BILL ANALYSIS
AB 509
Page 1
Date of Hearing: March 31, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 509 (Anderson) - As Introduced: February 24, 2009
As Proposed to Be Amended in Committee
SUMMARY : Revises definitions of offenses relating to fleeing
from a peace officer in a motor vehicle. Specifically, this
bill :
1)Defines "willful or wanton disregard for the safety of
persons" separately from the provision relating to "willful or
wanton disregard for the safety of property."
2)Eliminates the codified definition of "willful or wanton
disregard for the safety of persons."
EXISTING LAW :
1)Provides that a person is guilty of willfully evading a peace
officer if all of the following conditions exist [Vehicle Code
Section 2800.1(a)]:
a) The peace officer's motor vehicle is exhibiting at least
one lighted red lamp visible from the front and the person
either sees or reasonably should have seen the lamp;
b) The peace officer's motor vehicle is sounding a siren as
may be reasonably necessary;
c) The peace officer's motor vehicle is distinctively
marked; and,
d) The peace officer's motor vehicle is operated by a peace
officer, as defined, and that peace officer is wearing a
distinctive uniform.
2)States that if a person flees or eludes a peace officer's
pursuing vehicle and the pursued vehicle is driven in a
willful or wanton disregard for the safety of persons or
AB 509
Page 2
property, the person shall be punished by imprisonment in the
state prison or by confinement in the county jail for not less
than six months nor more than one year. Provides that the
court may also impose a fine of not less than $1,000 nor more
than $10,000 or may impose both the fine and imprisonment.
[Vehicle Code Section 2800.2(a).]
3)States that "willful or wanton disregard" for the safety of
persons or property includes, but is not limited to, driving
while fleeing or attempting to elude a pursuing peace officer
during which time either three or more violations assigned a
traffic violation point occur, as specified, or damage to
property occurs. [Vehicle Code Section 2800.2(b).]
4)Provides that when a person flees a pursuing police vehicle,
knowing that his or her conduct endangers the life of another
person and nonetheless acts deliberately with conscious
disregard for life and causes a collision resulting in death,
that person is guilty of second-degree murder, punishable by
15-years-to-life in state prison, unless the victim is a
police officer in the performance of his or her duty and that
fact was, or should have been, known to the person, in which
case the punishment is 25-years-to-life in state prison.
[Penal Code Section 187, 190(a), (b); People v. Watson, 30
Cal. 3d 290, 296 (1981).]
5)Provides that willfully evading a peace officer and thereby
causing death or serious bodily injury is punishable by
imprisonment in the state prison for three, four or five
years; by imprisonment in the county jail for not more than
one year; by a fine of $2,000 to $10,000; or by both that fine
and imprisonment. (Vehicle Code Section 2800.3.)
6)Defines "serious bodily injury" as a serious impairment of
physical condition including, but not limited to, loss of
consciousness, concussion, bone fracture, protracted loss or
impairment of function of any bodily member or organ, a wound
requiring extensive suturing, and serious disfigurement.
[Penal Code Section 243(f)(4).]
7)States that a person who causes the death of another person by
driving a vehicle in the commission of an unlawful act not
amounting to a felony and with gross negligence is punishable
by either imprisonment in the county jail for not more than
one year or by imprisonment in the state prison for two, four,
AB 509
Page 3
or six years. [Penal Code Sections 192(c)(1) and 193(c)(1).]
8)States that a person who causes the death of another person by
driving a vehicle in the commission of an unlawful act not
amounting to a felony but without gross negligence is
punishable by imprisonment in the county jail for not more
than one year. [Penal Code Sections 192(c)(2) and 193(c)(2).]
9)Provides that the same penalties described in Vehicle Section
2800 above apply to a person who flees from a peace officer on
a bicycle if the following conditions exist:
a) The peace officer's bicycle is distinctively marked;
b) The peace officer's bicycle is operated by a peace
officer, as specified, and that peace officer is wearing a
distinctive uniform;
c) The peace officer gives a verbal command to stop;
d) The peace officer sounds a horn that produces a sound of
at least 115 decibels;
e) The peace officer gives a hand signal commanding the
person to stop; and,
f) The person is aware or reasonably should have been aware
of the verbal command, horn, and hand signal, but refuses
to comply with the command to stop. [Vehicle Code Section
2800.1(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "I introduced
Assembly Bill 509 as a public safety measure for families to
whom justice has been denied because of confusion in the law.
In my county of San Diego alone, three murder convictions -
horrible circumstances in each - have been overturned because
of this loophole. Those who take innocent human lives when
fleeing arrest by law enforcement should be held responsible
not let out through a loophole. And so, in this and every
case, the code must speak clearly and consistently for the
sake of efficient prosecution and fair punishment."
AB 509
Page 4
2)The Second-Degree Felony-Murder Rule : The second-degree
felony-murder rule is a court-made rule with no statutory
definition. [People v. Howard (2005) 34 Cal.4th 1129, 1135.]
The California Supreme Court has described the rule as
follows, "'A homicide that is a direct causal result of the
commission of a felony inherently dangerous to human life
(other than the . . . felonies enumerated in Penal Code
Section 189) constitutes at least second degree murder.' The
rule 'eliminates the need for proof of malice in connection
with a charge of murder.' It is not an evidentiary
presumption but a substantive rule of law which is based on
the theory that 'when society has declared certain inherently
dangerous conduct to be felonious, a defendant should not be
allowed to excuse himself by saying he was unaware of the
danger to life because, by declaring the conduct to be
felonious, society has warned him of the risk involved.' "
[People v. Howard, supra, 34 Cal.4th at 1135, citations
omitted, emphasis in original.).]
In the Howard case, the court interpreted Vehicle Code Section
2800.2, which prohibits fleeing from a peace officer with
willful, wanton disregard for the safety of persons and
property. The court noted that Vehicle Code Section 2800.2(b)
provides that "willful, wanton disregard for the safety of
persons and property" as used in that section, includes
committing three or more traffic violations while fleeing that
are assigned a traffic point under the Penal Code. Because a
driver could commit three such traffic violations without
necessarily endangering human life, the court found that
Vehicle Code Section 2800.2 was not an inherently dangerous
felony and therefore could not form the basis of a
second-degree felony-murder conviction. (People v. Howard,
supra, 34 Cal.4th at 1139.)
It is important to note that the court also stated, "Nothing
here should be read as saying that a motorist who kills an
innocent person in a hazardous, high-speed flight from a
police officer should not be convicted of murder. A jury may
well find that the motorist has acted with malice by driving
with conscious disregard for the lives of others, and thus is
guilty of murder. [See generally People v. Watson (1981) 30
Cal.3d 290 (179 Cal.Rptr. 43, 637 P.2d 279).] But, as we have
explained, not all Vehicle Code Section 2800.2 violations pose
a danger to human life. Therefore, the prosecution may not
AB 509
Page 5
(as it did here) resort to the second-degree felony-murder
rule to remove from the jury's consideration the question
whether a killing that occurred during a Vehicle Code Section
2800.2 violation of was done with malice." (People v. Howard,
supra, 34 Cal.4th at 1139.]
As the court pointed out, reliance on the second-degree
felony-murder rule is not the only manner in which a person
may be convicted of murder for causing a death while fleeing
police. In People v. Watson, supra, the court held that where
a defendant's conduct exhibits wantonness and a conscious
disregard for life, the jury may find implied malice, which
can result in a conviction for second-degree murder. Thus, if
the prosecution had asked the jury in the Howard case to find
that the defendants' actions showed wantonness and a conscious
disregard for human life, it might well have agreed, found the
defendant's actions amounted to implied malice, and convicted
him of murder on that basis. It was due to the prosecutor's
choice to pursue a "strict liability" theory of second-degree
murder, one that removes the defendant's state of mind from
the jury's consideration, that resulted in the reversal. This
does not necessarily amount to a "loophole" in the law.
Regarding the second-degree felony-murder rule, the Supreme
Court in Howard stated, "Because the second-degree
felony-murder rule is 'a judge-made doctrine without any
express basis in the Penal Code' (People v. Dillon, supra, 34
Cal.3d at p.472, fn.19), its constitutionality has been
questioned [see People v. Patterson, supra, 49 Cal.3d at p.
641 (conc. opn. of Panelli, J.).] And, as we have noted in
the past, legal scholars have criticized the rule for
incorporating' an artificial concept of strict criminal
liability that 'erodes the relationship between criminal
liability and moral culpability.' " (Id. at p. 621.)
" Therefore, we have repeatedly stressed that the rule
'deserves no extension beyond its required application. ' "
[Id. at p.622; see also People v. Burroughs (1984) 35 Cal.3d
824, 829 (201 Cal. Rptr. 319, 678 P.2d 894); People v.
Phillips (1966) 64 Cal.2d 574, 582 (51 Cal. Rptr. 225, 414
P.2d 353); and People v. Howard, 34 Cal.4th 1129, 1135,
emphasis added.]
Justice Janice Rogers Brown, while concurred in the Court's
holding in the Howard case, went even farther in a separate
dissenting opinion to repeat her previously stated opinion
AB 509
Page 6
that the second-degree felony murder rule, which she describes
as "this dubious doctrine," should be abolished altogether.
(People v. Howard, supra, 34 Cal.4th 1129, 1140.)
3)Willful and Wanton Disregard for People : Existing law makes
it an alternate felony/misdemeanor for a person to flee or
attempt to elude a pursuing peace officer when the pursued
vehicle is driven in a willful or wanton disregard for the
safety of persons or property. (Vehicle Code 2800.2) As
noted in Comment #2 above, the California Supreme Court in
People v. Howard (Id.) found that fleeing a peace officer with
a willful or wanton disregard for the safety of person is not
an inherently dangerous felony for the purposes of
second-degree felony-murder rule as the statute is currently
drafted. This bill separates fleeing with a willful or wanton
disregard for the safety of persons from fleeing with a
willful or wanton disregard for the safety of property. This
bill removes the definition of "willful and wanton disregard"
from the section addressing persons but leaves that definition
in the section addressing "property." The intent is to
address the Court's finding in Howard that a violation of
Vehicle Code Section 2800.2 "is not in the abstract,
inherently dangerous to human life" as discussed in Comment #2
above. (People v. Howard, supra, 34 Cal.4th 1138-1139.)
As noted in Comment 2, second-degree felony murder is a
court-made rule. Thus, even if the Legislature makes the
statutory change in this bill, there is no guarantee that
court will find that the activity in this statute is
inherently dangerous. For an offense to be "inherently
dangerous," the individual facts of the case are not
considered but the felony is assessed in the abstract and
there must be "high probability of death." (See generally 1
Witkin and Epstein California Criminal Law 3d Edition Crimes
Against the Person 174, et. seq.) Since police pursuits vary
widely in their speed, locale and safety violations, it is not
absolutely clear that taken in the abstract this offense will
be found to be inherently dangerous.
The penalty for second-degree felony-murder rule is
15-years-to-life in prison. If a crime is found to be
inherently dangerous under the second-degree felony murder
rule, it allows a person to be found guilty of second-degree
felony-murder rule without proving the necessary mental state
of malice aforethought thus making a crime a strict liability
AB 509
Page 7
crime.
The definition of "willful and wanton disregard for the safety
of property" in this bill is the definition in existing law
which "includes but is not limited to driving while fleeing or
attempting to elude a pursuing peace officer during which time
either three or more violations that are assigned a point
count occur, or damage to property occurs." "Willful and
wanton disregard for the safety of persons" is not defined by
this bill. The Howard case focused on the broad definition
in existing law and, thus, this bill applies only to the
property section.
4)Argument in Support : According to the Association for Los
Angeles Deputy Sheriffs state, "AB 509 maintains present
vehicle code language regarding those drivers who flee or
attempt to elude a pursuing peace officer and who show
complete disregard for safety involving their own vehicle and
lives, but who additionally show complete disregard for other
persons and property that could incidentally be caught
off-guard and hurt from these actions. Under AB 509 new
language is added to the code related to penalties, time to be
served, and fines paid for an incident of this nature, as the
bill dingles out and addresses the issue of harm and/or loss
of property that comes as a result of a 'fleeing officer'
pursuit. We believe this is a thoughtful addition to the
Vehicle Code and support this measure."
5)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "CACJ must regretfully oppose AB 509.
This measure would undermine the California Supreme Court's
decision in People v. Howard (2005) 34 Cal. 4th 1129 in which
the Court rightfully declined to extend the felony-murder rule
to offenses of fleeing an officer.
"The California Supreme Court reasoned that the mere act of
fleeing an attempted traffic stop is not in and of itself an
"inherently dangerous felony." The second-degree
felony-murder rule is strictly applied only to those offenses
that by their very nature, and in every circumstance, pose a
danger to human life. The dangerousness of this criminal act
is wholly dependent upon surrounding circumstances thus
falling short of the felony-murder threshold.
"The Court clearly reaffirmed the possibility that a person
AB 509
Page 8
may be prosecuted for murder is the special circumstances
warrant such a charge. AB 509 is simply an attempt to rewrite
current law to ignore the fundamental principles of
felony-murder.
"The California Supreme court strongly warned against any
recasting of the current felony-murder rule when it wrote "?we
have repeatedly stressed that the rule 'deserves no extension
beyond its required application." People v. Howard, supra,
1135."
6)Prior Legislation :
a) SB 317 (Margett) 2005-06 Legislative Session, would have
increased the penalties for evading, willfully fleeing or
otherwise attempting to elude a peace officer's motor
vehicle. SB 317 was held in Senate Appropriations.
b) AB 570 (Villines) 2005-06 Legislative Session, would
have revised definitions of offenses relating to fleeing
from a peace officer in a motor vehicle; makes several
statements of legislative intent with respect to those
changes. AB 570 was held Senate Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
Riverside Sheriffs' Association
San Diego County Sheriff's Department
San Diego District Attorney
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744