BILL ANALYSIS
AB 3
Page 1
Date of Hearing: April 13, 1999
Chief Counsel: Harry M. Dorfman
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 3 (Ashburn) - As Introduced: December 7, 1999
SUMMARY : Expands the "special circumstances" list to authorize
imposition of the death penalty where the victim was under age
14, and the defendant knew or should have known that the victim
was under age 14.
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
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
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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;
vii) Kidnapping;
viii) Train wrecking;
ix) Sodomy;
x) Lewd or lascivious acts on a child under age 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
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of parole. (Penal Code Section 190.)
8)Limits imposition of the death penalty to those first-degree
murder cases where the trial jury finds true 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
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 was
intentionally killed to prevent his/her testimony, or
killed in retaliation for testifying;
k) The victim was a local, state or federal prosecutor
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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
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;
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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; and,
xvi) The murder was perpetrated by discharging a
firearm from a vehicle. (Penal Code Section 190.2.)
9)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))
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement. "The murder of a child is a valid special
circumstance. For those most vulnerable, our children, it is
surprising that many child murderers are not eligible for life
in prison without parole. Even more surprising is that taking
the life of the child is not a special circumstance, which
allows the death penalty as a consequence.
"Current law (Penal Code Section 190.2) does not sufficiently
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provide for the protection of our children and does not
provide an avenue to justice for murdered children and their
surviving parents/siblings. Present law actually places a
higher value on politicians, judges, district attorneys and
jurors than it does on children. If one of these adults is
murdered, their status makes the killer automatically eligible
for life without parole or the death penalty. While these
people are certainly worthy of protection, don't our children
deserve the same justice?
"AB 3 will set things right by making the murder of any child
who is under 14 years of age punishable by death or life in
prison without the possibility of parole. We have a
responsibility to protect our children, those least able to
protect themselves. It is imperative that we apply the
greatest possible punishment to those who prey on them. Our
first duty is to care for those who cannot protect themselves
and that means our children. There is absolutely no excuse
for taking a child's life and those who do should suffer the
most severe penalty we can give them.
In the words of the California Union of Safety Employees, '?A
society can be judged by how it values its children. By
recognizing that one of the vilest acts a person can commit is
the murder of a child, this bill reaffirms our commitment to
the protection of the most vulnerable among us.' "
2)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
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. At some point, the
courts will likely 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
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required to rewrite the special circumstances law to return it
to a judicially acceptable dimension.
3)Similar Laws in Other States. According to material provided
by the author, "At least 11 other states have provisions in
their capital punishment statutes providing a punishment of
death or life in prison without parole for the killing of an
individual under a certain age: Alabama, Colorado, Florida,
Indiana, Louisiana, Ohio, Pennsylvania, Illinois, Mississippi,
Oklahoma and Wyoming. Most of these states use 12 years of
age. Although, Alabama uses 14 years and Wyoming uses 16
years."
4)Current Special Circumstances Law Protects Children. Existing
law permits imposing the death penalty in a number of
situations where children are likely to be murder victims. If
the murder was especially heinous, atrocious or cruel,
"manifesting exceptional depravity," the defendant is eligible
for death pursuant to Penal Code Section 190.2(a)(14). If the
defendant intentionally killed the victim while lying in wait,
the defendant is death eligible pursuant to Penal Code Section
190.2(a)(15). If the victim was intentionally killed because
of his or her race, color, religion, nationality or country of
origin, the defendant is death eligible pursuant to Penal Code
Section 190.2(a)(16). If the defendant had previously been
convicted of first- or second-degree murder, the defendant is
death eligible pursuant to Penal Code Section 190.2(a)(2).
If the killing occurs during the commission of a specified
felony, the defendant is eligible for death, even if the
defendant did not have the intent to kill the victim. This
feature of special circumstances law is known as "felony
murder special circumstances." Once the prosecutor
establishes that the defendant had the specific intent to
commit the underlying felony offense and that the death
occurred as part of the felony offense, the defendant's intent
to kill is irrelevant. As one court has explained, "[u]nder
the felony-murder rule, defendant is strictly liable for his
killing of [the victim] committed in the attempt to perpetrate
a robbery and this is true whether the killing was
unintentional, accidental or wholly unforeseeable. [citations
omitted] The same is true as to the felony-murder special
circumstance." People v. Parnell , (1993) 16 Cal.App.4th 862,
874. The California Supreme Court has clearly held that "when
the defendant is the actual killer, intent to kill is not an
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element of?the felony-murder special circumstance?." People
v. Dennis , (1998) 17 Cal.4th 468, 516.
The felonies which trigger special circumstances and which are
likely to involve a child victim are kidnapping, sodomy,
performance of a lewd or lascivious act on a child under age
14, oral copulation, burglary, arson, rape, rape by
instrument, torture, and the murder was perpetrated by
discharging a gun from a car. If a defendant commits one of
these underlying felonies and a child under age 14 dies, the
defendant is eligible for the death penalty without showing
any intent to kill.
5)Mistake of Fact Regarding the Victim's Age. One criticism of
this bill is drawing the line at age 14. The American Civil
Liberties Union argues, "For example a person could receive
the death penalty for intentionally killing a child who is 13
years and 11 months old while the special circumstances would
not apply to the intentional killing of a child 14 years and 1
day old. We do not perceive a sufficiently compelling
justification for the state to protect children under 14 any
more so than children over 14." The legislative process
necessarily involves making distinctions; some people will be
subjected to the law's prescriptions while other will fall
outside the law's prescriptions. Why make 18 the age of
majority rather than 19? Or 21?
6)Constitutionality of Establishing a Victim Category Based on
Age Alone. So long as the Legislature chooses a class of
victims not arbitrary and capricious and provides a meaningful
basis for distinguishing between the few cases in which death
is imposed and the many cases in which death is not imposed,
the courts will uphold the legislative choice. This bill
protects all children under 14 years, not just certain
children. (For example, the Legislature would act arbitrarily
and capriciously if it chose to protect only children under
age 14 who had brown eyes or lived in urban areas as opposed
to rural areas.) The Legislature has previously demonstrated
a concern for children of this age [e.g. Penal Code Sections
271, 271a, 288(a), 288(b)], and a court would most likely
determine that society has a compelling interest in protecting
those children as a group. Nor does such a law protecting
children fail because there is no comparable law protecting
senior citizens. Such an argument requires the Legislature to
craft a law for every identifiable category of citizens before
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any law could be made effective; the Constitution does not
require so much.
7)Arguments in Support.
a) The County of Orange Sheriff-Coroner Department states,
"Child victims and their families should be provided equal
justice under our laws and the persons who have perpetrated
the crimes against them should receive just punishment. .
. . "
b) The Monterey County Sheriff-Corner-Public Administrator
states, "Working in Law Enforcement and being out on the
street for the past 28 years, I have seen all too often the
murderers of young children though punished, not to the
degree I feel they should have been, or plea bargained down
to a few years in jail. It is simply a travesty of justice
to allow this to happen and to continue to allow our Courts
to make these kinds of decisions."
8)Arguments in Opposition. The California Attorneys for
Criminal Justice state, "By focusing solely on the age of the
victim, this special circumstance will expand application of
the death penalty to less aggravated murders because
aggravated offenses involving a victim under age 14 would
already qualify under an existing special circumstance. The
recent case of Matthew 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 a
lying-in-wait special circumstance allegation.
"In states where this special circumstance has been applied, for
example in Alabama, this has resulted in a dramatic increase
in the number of teenagers facing the death penalty. Most
often, where 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. This special circumstance
will also result in the death penalty being applied in cases
of domestic violence where the parents were, in an
overwhelming number of cases, themselves abused as children?."
9)Related Legislation. SB 31 (Peace), pending before the Senate
Public Safety Committee.
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10)Prior Legislation. SB 1799 (Calderon), of the 1997-98
Legislative Session, was placed on the Assembly Appropriations
Suspense File; AB 490 (Ashburn), of the 1997-98 Legislative
Session, was held without recommendation in Senate
Appropriations Committee; SB 1878 (Kopp), Chapter 629,
Statutes of 1998; SB 1079 (Calderon), of the 1997-98
Legislative Session, failed in Senate Public Safety Committee;
AB 1538 (Havice), of the 1997-98 Legislative Session, was
never heard by the Senate Public Safety Committee; and AB 1741
(Bordonaro), of the 1995-96 Legislative Session, failed
passage in Senate Committee on Criminal Procedure.
REGISTERED SUPPORT/OPPOSITION :
Support
Doris Tate Crime Victims Bureau
Grandparents as Parents, Inc.
City of Poway
California District Attorney's Association
Los Angeles County Sheriff's Department
California State Sheriffs' Association
California Union of Safety Employees
City of San Diego
San Bernardino County Office of the Sheriff
Kern County Sheriff-Coroner
Monterey County Sheriff-Coroner
Orange County Sheriff-Coroner
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
One Private Citizen
Analysis Prepared by : Harry Dorfman / PUB. S. / (916) 319-3744