BILL ANALYSIS
AB 2674
Page 1
Date of Hearing: April 6, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2674 (Block) - As Introduced: February 19, 2010
PROPOSED CONSENT
SUBJECT : FAMILY LAW: forfeiture of community property for
soliciting the murder of a spouse
KEY ISSUE : should OUR family law be clarified to ensure that a
spouse who is convicted of soliciting the murder of his or her
FORMER spouse similarly forfeitS ALL rightS to SPOUSAL SUPPORT
AND his or her share of the community property -- as is already
appropriately the case when a spouse is convicted of personally
attemptING THE murder of the other spouse?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This unsurprisingly non-controversial bill arises from an
extremely compelling, indeed shocking, case brought to the
author by one of his constituents. In correspondence received
by the Committee from the author's constituent, the constituent
-- a police detective -- notes that his former wife repeatedly
solicited his murder following her tragic descent into drug
addiction, acts of which she was ultimately convicted of
solicitation to commit murder, and sent to prison. The
detective thereafter retained custody of the couple's two
children. In subsequent proceedings for divorce, the family
court found that our family code did not yet protect the
detective in such a case from having to share the community
property with the former spouse who sought his murder -- because
his former spouse did not personally attempt his murder but
instead solicited someone else to commit the egregious act. The
court found this despite the Legislature's enactment of
pertinent family law legislation over 15 years ago, in the form
of AB 16 of 1995, which prohibited a spouse convicted of
attempting to murder the other spouse him or herself from
benefiting in any way from his or her prior act. The court
therefore perhaps accurately, but certainly disturbingly, held
that the spouse who had solicited her former husband's murder
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was nevertheless entitled to one-half the community property of
the marriage, including the detective's retirement benefits and
insurance benefits from life insurance policies, under the
technical terms of the statute. Although the detective's
attorney reportedly argued to the court that the wife's intent
was the same as the intent for the crime of attempted murder,
the court found in favor of the wife because the state's family
law did not yet specifically state that solicitation of murder
by one spouse against another would similarly lead to forfeiture
of community property. This measure -- though it cannot correct
the shocking result in the detective's case recounted here --
will appropriately clarify the Legislature's determination that
it should not matter whether a former spouse personally sought
to murder the other spouse, or instead solicited another to
commit the murder, when it comes to the forfeiture of the
murderous spouse's share of community property. There is no
known opposition to this clarification of spousal support and
community property law - and this legislation will now hopefully
ensure that a spouse convicted of soliciting the murder of the
other spouse cannot benefit in any way from his or her criminal
misconduct, just as is already the case if he or she personally
sought to murder the other spouse.
SUMMARY : Seeks to clarify the Legislature's determination that
it should not matter whether a former spouse personally sought
to personally murder the other spouse, or instead solicited
another to commit the murder of that spouse, when it comes to
the forfeiture of the murderous spouse's spousal support and
share of community property. Specifically, this bill :
1)Provides that in addition to any other remedy authorized by
law, when a spouse is convicted of soliciting the murder of
the other spouse as punishable pursuant to subdivision (b) of
Section 653(f) of the Penal Code, the injured spouse shall be
entitled to:
a) An award to the injured spouse of 100 percent of the
community property interest in the retirement and pension
benefits of the injured spouse and
b) A prohibition of any temporary or permanent award for
spousal support or medical, life, or other insurance
benefits or payments from the injured spouse to the other
spouse.
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2)Expands the definition of "injured spouse" to mean the spouse
who has been the subject of the attempted murder or the
solicitation of murder for which the other spouse was
convicted, whether or not actual physical injury occurred.
EXISTING LAW :
1)Provides, in addition to any other remedy authorized by law,
when a spouse is convicted of attempting to murder the other
spouse, as punishable pursuant to subdivision (a) of Section
664 of the Penal Code, the injured spouse shall be entitled to
an award to the injured spouse of 100 percent of the community
property interest in the retirement and pension benefits of
the injured spouse. (Family Code Section 782.5)
2)Provides, in addition to any other remedy authorized by law,
when a spouse is convicted of attempting to murder the other
spouse, as punishable pursuant to subdivision (a) of Section
664 of the Penal Code, the injured spouse shall be entitled to
a prohibition of any temporary or permanent award of spousal
support or medical, life or other insurance benefits or
payments from the injured spouse to the other spouse. (Family
Code Section 4324.)
3)Provides that if an injured spouse is entitled to a remedy
under #2, above, the injured spouse is entitled to an award of
reasonable attorney's fees and costs as a sanction. (Family
Code Section 274.)
4)Prohibits a person who feloniously and intentionally kills
another from inheriting, either through a will or by intestate
succession, from the estate of the person who was killed.
(Probate Code Section 250.)
COMMENTS : This non-controversial bill arises from an extremely
compelling, indeed shocking, case brought to the author by one
of his constituents. In correspondence received by the
Committee from the author's constituent, the constituent -- a
police detective -- notes that his former wife repeatedly
solicited his murder following her tragic descent into drug
addiction, acts of which she was ultimately convicted of
solicitation to commit murder, and sent to prison. In
subsequent proceedings for divorce, the family court found that
our family code did not yet protect the detective in such a case
from having to share the community property with the former
AB 2674
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spouse who sought his murder -- because his former spouse did
not personally attempt his murder but instead solicited someone
else to commit the egregious act. The court found this despite
the Legislature's enactment of pertinent family law legislation
over 15 years ago, in the form of AB 16 (Rainey), Chap. 364,
Stats. 1995, which prohibited a spouse convicted of attempting
to murder the other spouse him or herself from benefiting in any
way from his or her prior act. The court therefore perhaps
accurately, but certainly disturbingly, held that the spouse who
had solicited her former husband's murder was nevertheless
entitled to one-half the community property of the marriage,
including the detective's retirement benefits and insurance
benefits from life insurance policies, under the technical terms
of the statute. This measure -- though it cannot correct the
shocking result in the detective's case recounted here -- will
appropriately clarify the Legislature's determination that it
should not matter whether a former spouse personally sought to
murder the other spouse, or instead solicited another to commit
the murder, when it comes to the forfeiture of the murderous
spouse's share of community property.
Legal Background : As noted above, existing law provides that
when a husband or wife is convicted of the attempted murder of
their spouse, the injured spouse is entitled to an award of 100%
of the community property interest in the retirement and pension
benefits of the injured spouse. The injured spouse is entitled
to a prohibition of any temporary or permanent award for spousal
support, medical, life or other insurance benefits or payments
from the injured spouse. The injured spouse is also entitled to
reasonable attorney fees and costs. However, these provisions
do not yet expressly apply to a spouse convicted of soliciting
the murder of the other spouse. This bill seeks to extend these
protections to the injured spouse by amending existing law to
include spouses who are convicted of soliciting the murder of
the other spouse.
A More Detailed Account of the Proffered Facts in the Case
Leading to This Legislation : The impetus for this bill was as
noted above a case involving the conviction of the wife of a
detective at the Pomona Police Department for the solicitation
of his murder. Fortunately to say the least the murder attempt
failed, but the wife was convicted of one count solicitation to
commit murder and sent to prison. According to the facts
recited by the detective, his marriage dissolved when his wife
became addicted to illegal drugs and physically abusive, and
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they separated in 2001. The detective retained custody of their
two children. Fearful of losing permanent custody of the
children and the accompanying monetary support, the wife
approached members of the Vagos motorcycle gang and attempted to
arrange the detective's murder while he was on-duty. The
members refused. Undeterred, three months later the wife
approached a female relation of two Vagos members and again
attempted to solicit the murder of her husband. The female
relation notified the detective and an undercover operation was
set in motion.
The female relation acted as a "go between" to arrange a meeting
with the "hit man." The wife provided her vehicle to use as
transport, stating that if her husband was dead she would no
longer require use of her vehicle; she planned to purchase "a
brand new corvette." The corvette was supposedly to be
purchased with the money she would be awarded as the beneficiary
in the case of her husband's death while on duty. The
undercover team recorded the conversations and the wife was
arrested and convicted of solicitation to murder her husband.
In subsequent proceedings for dissolution of the marriage,
despite the prior enactment of AB 16 which prohibits a spouse
convicted of attempting to murder the other spouse from
benefiting in any way from his or her prior act, the wife was
entitled to one-half the community property, including the
detective's retirement benefits and insurance benefits from life
insurance policies. Although his attorney argued to the court
that the wife's intent was the same as the intent for the crime
of attempted murder, but with aggravating circumstances, the
court found in favor of the wife.
Notwithstanding the Family Court's Determination in The Case
Behind This Bill, The Original Legislation Arguably Already
Intended to Cover Solicitation of Murder : One would assume,
based on the legislative history of AB 16, the original
legislation was intended to apply to the solicitation of murder.
According to the comments of the author who carried AB 16,
recounted in committee analyses at the time, that bill in 1994
attempted to provide a mechanism whereby a spouse who was the
victim of an attempted murder by the other spouse, would not be
subjected to the emotional and financial trauma of having to
make payments on spousal support, medical or life insurance
benefits, or retirement benefits to the convicted spouse.
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According to the author of AB 16, one of the driving forces
behind the bill at the time was a Hayward man, whose wife, in a
conspiracy with two other persons, tried to kill him in October
1976. He stopped to help what he thought was a stranded
motorist, but was in fact in the midst of a trap. He was shot
three to four times, twice in the head, and managed to save his
life by driving to the San Leandro police station before
fainting.
The wife was convicted and imprisoned for eight years for the
attempted murder. In the subsequent dissolution proceeding, the
wife shockingly nevertheless received her one-half share of the
community property. However, the man obtained custody of the
three children and raised them alone, with no contribution for
their support from the ex-wife. The retirement benefits were
not divided in the dissolution proceeding because no one
expected the man to survive long enough to collect any such
benefits. Due to the attempted murder, the man had taken early
retirement, only to find that his ex-wife was entitled to
one-half the community property share of his retirement
benefits. This case clearly involves facts similar to those of
the detective's.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Drew Liebert and Cheryl Lema / JUD. /
(916) 319-2334