BILL ANALYSIS
AB 54
Page 1
Date of Hearing: April 13, 1999
Chief Counsel: Harry M. Dorfman
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 54 (Battin) - As Introduced: December 7, 1998
SUMMARY : Authorizes capital punishment for any person 16 years
of age or older who commits a first-degree murder with special
circumstances. Specifically, this bill :
1)Prohibits imposing the death penalty on any person under 16
years of age at the time the crime was committed.
2)Requires the defendant to prove his or her age.
3)Affects an initiative statute and requires voter approval of
this change before this bill becomes effective.
EXISTING LAW :
1)Prohibits imposing the death penalty on any person under 18
years of age at the time the crime was committed. (Penal Code
Section 190.5(a).)
2)Provides the penalty for a 16- or 17-year-old who commits a
first-degree murder with special circumstances to be either
life in prison without the possibility of parole (LWOP) or
25-years-to-life in state prison. (Penal Code Section
190.5(b).)
3)Provides that murder is the unlawful killing of a human being,
or a fetus, with malice aforethought. (Penal Code Section
187.)
4)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.)
5)Classifies murder according to degrees, either first degree or
AB 54
Page 2
second degree. (Penal Code Section 189.)
6)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;
vii) Kidnapping;
viii) Train wrecking;
ix) Sodomy;
x) Lewd or lascivious acts on a child under 14;
AB 54
Page 3
xi) Oral copulation; and,
xii) Penetration of genital or anal openings with a
foreign object. (Penal Code Section 189.)
7)Provides that second-degree murders include all murders not
enumerated as first degree. (Penal Code Section 189.)
8)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.)
9)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.)
10)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;
AB 54
Page 4
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
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:
AB 54
Page 5
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; and,
xvi) The murder was perpetrated by discharging a
firearm from a vehicle. (Penal Code Section 190.2.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement. "AB 54 is an effort to legislatively
ratify the Governor's campaign promise to help keep California
safe. By the age of 16, these murderers know the difference
between right and wrong about taking another human life. This
bill will provide the additional deterrent needed against the
AB 54
Page 6
gangs terrorizing our cities as never before. It will force
them to think twice about their next carjacking, home
invasion, or drive by shooting.
"Demoralizing accounts of juveniles committing murder have
become commonplace and signal a fearful disregard for human
life in our society. Juveniles make up 14% of all murder and
aggravated assault arrests. While crime rates have dropped,
it is projected that the number of juveniles arrested for
violent crimes will increase by over 28% through the year
2004.
"This bill will provide the appropriate deterrent needed to keep
violent murders off our streets and out of our playgrounds.
The bill imposes a sentence appropriate for first degree
murder."
2)The United States Supreme Court and Execution of Juveniles.
In Thompson v. Oklahoma , (1988) 487 U.S. 815, a plurality of
four justices of the Supreme Court concluded that the
Constitution forbids imposing capital punishment on a juvenile
under age 16 at the time the crime was committed. Thereafter,
in Stanford v. Kentucky , (1989) 492 U.S. 361, the Supreme
Court decided that the death penalty is not cruel and unusual
punishment when applied to a person who was 16 or 17 years of
age when he or she committed the crime. This bill is
constitutional and, therefore, does not risk diluting the
special circumstances law to the point that a court would
strike it down as arbitrary, capricious, and failing to
distinguish between those few crimes deserving death and the
general body of crimes that do not deserve death.
3)Current Penalties for Special Circumstances Murders Committed
by 16- or 17-Year-Olds. California law now provides one of
two penalties for a 16- or 17-year-old who commits murder with
special circumstances: LWOP or 25-years to-life.
4)Arguments in Opposition.
a) The California Attorneys for Criminal Justice states,
"The execution of juveniles and those whose crimes were
committed as juveniles is a barbaric notion that has been
rejected throughout the world, with the exception of the
United States. 'The death penalty for juvenile offenders
is an almost uniquely American pastime. This practice
AB 54
Page 7
appears to have been abandoned everywhere else in large
part due to the express provisions of the United Nations
Convention on the Rights of the Child and of several other
international treaties and agreements?."
b) The American Civil Liberties Union states, "Minors
should not be executed by the state. The tide seems to be
shifting slowly against the death penalty, and California
should not be in the position of expanding the death
penalty to young people. According to a poll by the
Chicago Tribune, support for the death penalty in Illinois
has dropped 13 percentage points in the last five years,
and a majority of voters (54%) favors a moratorium on all
executions in the state. Fewer than half of the
respondents (49%) said they believe that the death penalty
deters crime."
5)Related Legislation. AB 3 (Ashburn), set for hearing by this
Committee today; AB 4 (Baldwin), pending before the Assembly
Public Safety Committee; AB 371 (Havice), set for hearing by
this Committee today; and AB 589 (Margett), set for hearing by
this Committee today.
REGISTERED SUPPORT/OPPOSITION :
Support
Blythe Police Department
California State Sheriffs' Association
Calipatria Police Department
Citizens Against Homicide
City of Palm Springs, Chief of Police
Desert Hot Springs Police Department
Honorable Wally Leimgruber, Member, Board of Supervisors,
Imperial County
Justice Against Crime
One Private Citizen
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Child, Youth and Family Coalition
California Public Defenders Association
Friends Committee on Legislation of California
AB 54
Page 8
One Private Citizen
Analysis Prepared by : Harry Dorfman / PUB. S. / (916) 319-3744