BILL ANALYSIS
AB 35
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Date of Hearing: April 13, 1999
Chief Counsel: Harry M. Dorfman
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 35 (Strickland) - As Amended: March 3, 1999
SUMMARY : Authorizes imposition of the death penalty under two
new "special circumstances." First, for a person convicted of
rape where the person has a prior conviction for rape. Second,
for a person convicted of lewd or lascivious acts on a child
under age 14, or convicted of committing lewd and lascivious
acts on a child under age 14 accomplished by force, violence or
fear, where the person has a prior conviction for either
offense. Specifically, this bill :
1)Authorizes imposition of the death penalty where the defendant
suffers a conviction for rape pursuant to Penal Code Section
261, having previously suffered a conviction for rape pursuant
to Penal Code Section 261.
2)Authorizes imposition of the death penalty where the defendant
suffers a conviction for lewd or lascivious acts on a child
under age 14, in violation of Penal Code Section 288(a), or
suffers a conviction for lewd or lascivious acts on a child
under age 14 accomplished by force, violence, duress, menace
or fear of immediate and unlawful bodily injury on the victim
or another person pursuant to Penal Code Section 288(b), and
the defendant has a prior conviction for violating either
Penal Code Section 288(a) or 288(b).
3)Affects an initiative statute and requires submission to the
voters for approval at a general election before these new
special circumstances become effective.
EXISTING LAW :
1)Provides that murder is the unlawful killing of a human being,
or a fetus, with malice aforethought. (Penal Code Section
187.)
2)Provides that malice aforethought may be express or implied.
Malice aforethought is express when the perpetrator manifests
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a deliberate intention to take the life of another human.
Malice aforethought is implied when there was "no considerable
provocation" for the killing, or when the circumstances
surrounding the killing show "an abandoned and malignant
heart." (Penal Code Section 188.)
3)Classifies murder according to degrees, either first degree or
second degree. (Penal Code Section 189.)
4)Provides that first-degree murder includes murders perpetrated
by:
a) Means of destructive device or explosive;
b) Knowing use of ammunition designed primarily to
penetrate metal or armor;
c) Poison;
d) Lying in wait;
e) Torture;
f) Any kind of willful, deliberate, and premeditated
killing;
g) Discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with
the intent to inflict death; and
h) Any murder committed in the perpetration of, or attempt
to perpetrate:
i) Arson;
ii) Rape;
iii) Carjacking;
iv) Robbery;
v) Burglary;
vi) Mayhem;
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vii) Kidnapping;
viii) Train wrecking;
ix) Sodomy;
x) Lewd or lascivious acts on a child under 14;
xi) Oral copulation; and,
xii) Penetration of genital or anal openings with a
foreign object. (Penal Code Section 189.)
5)Provides that second-degree murders include all murders not
enumerated as first degree. (Penal Code Section 189.)
6)Specifies that first-degree murder without "special
circumstances" (Penal Code Section 190.2) is punishable in the
state prison for a term of 25 years to life. (Penal Code
Section 190.)
7)Specifies that first-degree murder with "special
circumstances" (Penal Code Section 190.2) is punishable by
death, or in the state prison for life without the possibility
of parole. (Penal Code Section 190.)
8)Provides that rape is punishable by three, six or eight years
in state prison. (Penal Code Section 264(a).)
9)Provides that rape is a "serious felony" (Penal Code Section
1192.7(c)(3)) and a "violent felony" (Penal Code Section
667.5(c)(3).)
10)Provides that a Penal Code Section 261 violation is a
"strike" within the meaning of the "Three Strikes" sentencing
laws. (Penal Code Section 667(d)(1).)
11)Provides that any person convicted of a "serious felony" who
has suffered a prior conviction for a "serious felony" shall
receive, in addition to the sentence imposed for the present
offense, a five-year enhancement for each "serious felony"
prior conviction "brought and tried separately." (Penal Code
Section 667(a)(1).)
12)Provides that committing a lewd or lascivious act on a child
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under age 14 is punishable by three, six or eight years in
state prison. (Penal Code Section 288(a).)
13)Provides that a Penal Code Section 288(a) or 288(b) violation
is a "violent felony" (Penal Code Section 667.5(c)(6)) and a
"serious felony". (Penal Code Section 1192.7(c)(6).)
14)Provides that a Penal Code Section 288(a) or 288(b) violation
is a "strike" within the meaning of the "Three Strikes"
sentencing laws. (Penal Code Section 667(d)(1).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement. According to the author, "Assembly Bill
35 would increase the penalty for rape and molestation of a
child under the age of 14 by granting judges the discretion to
authorize the death penalty for defendants with one prior
conviction of these types of crimes.
"Under existing law persons convicted of rape or child
molestation are punishable by imprisonment in the state prison
for 3, 6, or 8 years. However, research has shown that child
molesters and serial rapists repeat their crimes after serving
their punishment destroying the lives of their innocent
victims.
"Crimes of rape and molestation of children create trauma in
victims that can last a lifetime and forever destroy their
emotional health and chance to enjoy a normal life. By
authorizing the use of the death penalty against repeat child
molesters and rapists, AB 35 provides the strongest deterrent
possible for these most heinous crimes. Moreover, by giving
judges the option to impose the death penalty in these cases,
the high rate of recidivism among such criminals will likely
be reduced.
"Existing law also requires that a separate penalty phase
hearing be held to determine whether or not the death penalty
should be imposed to a person found guilty in death penalty
cases.
"AB 35 would also require that the determination to impose the
death penalty upon conviction of either rape or child
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molestation with a like prior conviction, be made by a
separate penalty phase hearing.
"This bill will only become effective when submitted to, and
approved by the voters."
2)Is This Law Constitutional? The United States Supreme Court
has "concluded that a sentence of death is grossly
disproportionate and excessive punishment for the crime of
rape and is therefore forbidden by the Eighth Amendment as
cruel and unusual punishment." Coker v. Georgia , (1977) 433
U.S. 584, 592. If the current Supreme Court follows the clear
announcement of Coker , the issue is settled and both "special
circumstances" proposed by this bill violate the United States
Constitution. However, only two of the nine justices who
participated in the Coker decision are still on the court:
now Chief Justice Rehnquist and Justice John Paul Stevens. It
is entirely possible that the current Supreme Court could
revisit the issue and decide differently.
3)"Special Circumstances" in California. Imposition of the
California death penalty requires that a person be found
guilty of first-degree murder, and that the trial jury find to
be true that the murder involved at least one "special
circumstance." Currently, the Penal Code lists 21 separate
categories of "special circumstances":
a) The murder was intentional and carried out for financial
gain;
b) The defendant was convicted previously of first- or
second-degree murder;
c) The defendant, in the present proceeding, has been
convicted of more than one offense of first or
second-degree murder;
d) The murder was committed by means of a destructive
device planted, hidden or concealed in any place, area,
dwelling, building or structure;
e) The murder was committed to avoid arrest or make an
escape;
f) The murder was committed by means of a destructive
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device that the defendant mailed or delivered, or attempted
to mail or deliver;
g) The victim was a peace officer who was intentionally
killed while performing his/her duties and the defendant
knew or should have known that; or the peace officer/former
peace officer was intentionally killed in retaliation for
performing his/her duties;
h) The victim was a federal law enforcement officer who was
intentionally killed [the same as Item (g) above];
i) The victim was a firefighter who was intentionally
killed while performing his/her duties;
j) The victim was a witness to a crime and intentionally
killed to prevent his/her testimony, or killed in
retaliation for testifying;
k) The victim was a local, state or federal prosecutor
murdered in retaliation for, or to prevent the performance
of, official duties;
l) The victim was a local, state, or federal judge murdered
in retaliation for, or to prevent the performance of,
official duties;
m) The victim was an elected or appointed official of
local, state or federal government murdered in retaliation
for, or to prevent the performance of, official duties;
n) The murder was especially heinous, atrocious, or cruel,
"manifesting exceptional depravity." The preceding words
mean "a conscienceless or pitiless crime that is
unnecessarily torturous;"
o) The defendant intentionally killed the victim while
lying in wait;
p) The victim was intentionally killed because of his or
her race, color, religion, nationality, or country of
origin; and,
q) The murder was committed while the defendant was engaged
in, or was an accomplice in, the commission of, attempted
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commission of, or immediate flight after, committing or
attempting to commit the following crimes:
i) Robbery;
ii) Kidnapping;
iii) Rape;
iv) Sodomy;
v) Performance of a lewd or lascivious act on a child
under age 14;
vi) Oral copulation;
vii) Burglary;
viii) Arson;
ix) Train wrecking;
x) Mayhem;
xi) Rape by instrument;
xii) Carjacking;
xiii) Torture;
xiv) Poison;
xv) The victim was a local, state or federal juror
murdered in retaliation for, or to prevent the
performance of his/her official duties; or,
xvi) The murder was perpetrated by discharging a
firearm from a vehicle. (Penal Code Section 190.2.)
4)Adding More Special Circumstances Raises Constitutional
Concerns. Because the death penalty represents the
sovereign's greatest exercise of punitive power, the courts
take all necessary steps to make certain that it is applied
only to the most serious offenses. The Constitution does not
permit the application of the death penalty to crimes chosen
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without sufficient reason; put another way, any statutory
scheme authorizing capital punishment must demonstrate a
meaningful basis for distinguishing between those who receive
death and those who do not. The United States Supreme Court
has said that "[a] capital sentencing scheme must?provide a
'meaningful basis for distinguishing the few cases in which
the penalty is imposed from the many cases in which it is
not.' " Gregg v. Georgia , (1976) 428 U.S. 153, quoting Furman
v. Georgia , (1972) 408 U.S. 238, 313.
Therefore, a crucial question to ask regarding this bill is
whether extending the death penalty to crimes where no death
occurs trivializes the death penalty. Would a court see it
that way? A court could hold that applying the death penalty
to a sex crime where no killing has taken place diminishes its
deterrent effect. At some point, the courts will announce
that the "special circumstances" list contains too many crimes
and sweeps too broadly, striking it down on constitutional
grounds, and the Legislature will be required to rewrite the
special circumstances law to return it to a judicially
acceptable dimension.
5)California Procedure for Determining Death Eligibility .
California law requires three separate findings at the trial
in order to qualify for the death penalty: (a) guilty of
first-degree murder, (b) a finding that at least one of the
charged "special circumstances" is true, and (c) the jury's
determination that death is appropriate rather than life in
prison without the possibility of parole (LWOP). The first
two findings occur when the jury deliberates at the close of
the "guilt phase." (Penal Code Sections 190.1 and 190.4) The
penalty determination takes place during the "penalty phase."
(Penal Code Section 190.3.) If the jury fixes the penalty at
death, the judge still retains the power to reject the jury's
penalty verdict and impose LWOP. (Penal Code Section
190.4(e).)
6)Current Sentencing Law Authorizes Severe Penalties For Sex
Crimes. For some Penal Code Section 261(a)(2) and Section
288(b) violations, current law requires a penalty of
25-years-to-life in prison, with no possibility of parole
before serving 85% of 25 years. (Penal Code Section 667.61.)
One or more of the following circumstances must accompany the
offense to trigger the 25-to-life penalty:
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a) The defendant has a prior conviction for one of the
specified sex crimes;
b) The defendant kidnapped the present victim and the
movement substantially increased the risk of harm to the
victim;
c) The defendant inflicted aggravated mayhem or torture on
the victim; or,
d) The defendant committed the present offense during a
residential burglary done with the intent to commit a
specified sex crime.
Two or more of the following circumstances trigger the
25-to-life penalty:
a) The defendant kidnapped the victim;
b) The defendant committed the present offense during a
residential burglary without intending to commit a
specified sex crime, or committed the present offense
during a burglary of a non-residential building closed to
the public;
c) The defendant inflicted great bodily injury on the
victim or another person;
d) The defendant personally used a dangerous weapon or a
firearm; and,
e) The defendant has been convicted of specified sex
offenses against more than one victim.
For other Penal Code Section 261(a)(2) and 288(b) violations,
current law requires a penalty of 15-years-to-life, with no
possibility of parole before serving 85% of 15 years. If one
of the above factors, Items (a) through (e), accompanies the
new offense, the penalty is 15-years-to-life in prison.
Even if a particular case does not meet the requirements for
the severe penalties of Penal Code Section 667.61 outlined
above, a defendant who has a rape prior and is convicted of a
new rape conviction faces stiff penalties. As mentioned, the
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penalty range for rape is three, six or eight years in prison.
The rape prior is a "strike" which means the penalty for the
new offense will be doubled, for example, from eight years to
sixteen years. Additionally, the prior is a "five-year prior"
which means that the 16-year sentence will be enhanced by
another five years in prison, making a total sentence exposure
of 21 years. See People v. Ramirez , (1995) 33 Cal. App. 4th
559. The defendant is entitled to no more than 20% credits
for good behavior, which means the defendant must actually
serve more than 16 years in prison. That 16-year sentence
represents 80% of the 20-year minimum a defendant would have
to serve on a 25-to-life sentence.
7)Other States. According to materials provided by the author,
only two states have laws similar to this bill: Montana and
Louisiana. Over the past decade, several states have
introduced similar measures: Alabama, Georgia, Mississippi,
Tennessee, Virginia, and Washington.
8)Related Legislation. SB 31 (Peace), currently pending in the
Senate Public Safety Committee; AB 4 (Baldwin), currently
pending in the Assembly Public Safety Committee; AB 54
(Battin), set for hearing by this Committee today; AB 371
(Havice), pending in the Assembly Public Safety Committee; and
AB 545 (Floyd), pending in the Assembly Public Safety
Committee.
9)Prior Legislation. SB 2221 (Haynes), of the 1997-98
Legislative Session, was never heard by the Senate Public
Safety Committee; AB 2391 (Margett), of the 1997-98
Legislative Session, was never heard by the Assembly Public
Safety Committee; SB 1799 (Calderon) of the 1997-98
Legislative Session, was held on the Assembly Appropriations
Suspense File; and AB 490 (Ashburn), of the 1997-98
Legislative Session, was never heard by the Senate
Appropriations Committee.
10)Arguments in Opposition. According to the American Civil
Liberties Union (ACLU), "The ACLU opposes the death penalty
under all circumstances as a violation of the Constitution
because it denies equal protection of the laws, is cruel and
unusual punishment, and removes guarantees of due process of
law. The death penalty offers society no greater protection
than the alternative of life imprisonment without the
possibility of parole."
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The California Attorneys for Criminal Justice states, "Even
former Attorney General Dan Lungren has publicly stated his
belief that imposition of the death penalty for rape or child
molestation is unconstitutional pursuant to Coker v. Georgia ,
(1977) 433 U.S. 584. This is one instance in which Mr.
Lungren was right. Moreover, the underpinnings of that case
reflect all the reasons why, absent the question of
constitutionality, such an expansion would be terrible policy.
It creates a penalty out of proportion to the crimes in
question; it makes the imposition of the death penalty all too
easily subject to problems of racial bias and other
impermissible factors; and it erases the distinctions among
different levels of blameworthiness in crimes."
REGISTERED SUPPORT / OPPOSITION :
Support
Doris Tate Crime Victims Bureau
Office of the Sheriff, San Bernadino County
Opposition
American Civil Liberties Union
Attorney General's Office
California Public Defenders Association
California Attorneys for Criminal Justice
Friends Committee on Legislation of California
Prevent Child Abuse - California
One Private Citizen
Analysis Prepared by : Harry Dorfman / PUB. S. / (916)
319-3744