BILL ANALYSIS
AB 371
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Date of Hearing: May 11, 1999
Chief Counsel: Harry M. Dorfman
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 371 (Havice) - As Introduced: February 11, 1999
RECONSIDERATION ONLY
SUMMARY : Expands death penalty eligibility to include those
people who commit a deliberate, premeditated murder and two
deliberate and premeditated attempted murders at the same time.
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;
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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;
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 murder of the second degree includes 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
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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)Limits imposition of the death penalty to those cases where a
person is found guilty of first-degree murder, and the trial
jury finds 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
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");
i) The victim was a firefighter who was intentionally
killed while performing his/her duties;
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j) The victim was a witness to a crime intentionally killed
to prevent his/her testimony, killed in retaliation for
testifying;
k) The victim was a local, state or federal prosecutor
murdered in retaliation for, or to prevent performance of,
official duties;
l) The victim was a local, state, or federal judge murdered
in retaliation for, or to prevent 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 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; or,
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;
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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.)
9)Provides that the penalty for willful, deliberate and
premeditated attempted murder is life in prison with the
possibility of parole. (Penal Code Section 664(a).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement. According to the author, "Under current
law, the murder of more than one person in the same incident
is a death penalty offense. Assembly Bill 371 makes the
murder of one person with premeditation and deliberation and
the attempt to murder at least two other persons, also with
premeditation and deliberation, a capital offense.
"Any single murder by itself is a horrendous crime, but when you
couple that with the attempted murder of two or more
additional individuals this clearly shows a blatant disregard
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for human life and those who commit these heinous crimes
should be punished accordingly.
"I believe a top priority of government is to protect
law-abiding people from the small number of violent criminal
predators that plague our society. Making this crime eligible
for the death penalty will serve as a needed deterrent."
2)Applicability of Current Special Circumstances to
Murder/Attempted Murder Scenarios. Three victims in one
shooting suggest the image of gang-related violence, which
further suggests the image of drive-by shootings. If the
"murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at
another person or persons outside the vehicle with the intent
to inflict death," the killer is death eligible. (Penal Code
Section 190.2(a)(21).) If the murder/attempted murders
occurred after the defendant was lying in wait to commit the
crimes, the defendant is death eligible. (Penal Code Section
190.2(a)(15).). If the killer chose victims because of their
race, color, religion, nationality, or country of origin, the
killer is death eligible. (Penal Code Section 190.2(a)(16).)
If the killer targeted multiple victims to: (a) rob, (b)
kidnap, (c) rape, (d) carjack, or (e) commit arson and one
died, the killer would be death eligible. (Penal Code Section
190.2(a)(17).) If the killer targeted multiple victims
intending to kill, and inflicted torture on the victim who
died, the killer is death eligible. (Penal Code Section
190.2(a)(18).)
3) 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 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, or in an arbitrary and capricious manner;
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 "[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
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U.S. 238, 313.
Regarding this bill, a crucial question to ask is, "When
existing provisions cover many multiple murder/attempted
murder scenarios, will the courts see this kind of extension
as unnecessary and a dilution of special circumstances?" At
some point, as new special circumstances are added, the courts
will announce that the list of qualifying offenses 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.
4)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, (c) 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).)
5)Penalty Exposure for Premeditated Murder with Two Premeditated
Attempted Murders. Premeditated murder is first-degree
murder, punishable by 25 years to life in prison. (Penal Code
Section 189.) The use of a weapon would enhance the penalty.
For example, killing with a gun enhances the substantive
penalty with a sentence of 25 years to life in state prison to
be served consecutively to the 25 years for the murder.
(Penal Code Section 12022.53.) Moreover, each premeditated
attempted murder is punishable by life in prison with the
possibility of parole. (Penal Code Section 664.) Therefore,
the defendant could receive 50 years in prison plus two
consecutive life terms. (The defendant could receive no
credits against his or her minimum sentence of 25 years for
the murder pursuant to Penal Code Section 190(e), and no more
than 15% credits towards the 25-year enhancement for the gun
pursuant to Penal Code Section 12022.53(j).)
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6)Related Legislation. AB 3 (Ashburn), which failed passage in
this Committee; AB 4 (Baldwin), set for hearing by this
Committee today; AB 54 (Battin), which failed passage in this
Committee; AB 589 (Margett), currently pending before the
Assembly Appropriations Committee.
7)Arguments in Opposition. The American Civil Liberties Union
states, "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. Increasingly our continued use of the death penalty
is a source of embarrassment in the community of nations which
view the death penalty as a significant human rights
violation."
The Friends Committee on Legislation of California states, "The
inordinate cost of capital prosecutions and appeals, together
with the burdens that such cases place on the court, when
compared to their very doubtful benefits to survivors and to
society as a whole, certainly suggest that it would be
imprudent to expand the law at the present time. It is only a
symptom of the problem that courts have difficulty finding
competent lawyers to take on appeals in these cases. Lawyers
are closest to the workings of the judicial system. They know
that the best of human systems are flawed, and that courts can
easily make serious mistakes. The American Bar Association
has called for a moratorium on executions in view of the
inequities that accompany processing of death cases from
beginning to end."
REGISTERED SUPPORT / OPPOSITION :
Support
Peace Officers Research Association of California
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Catholic Bishops of California
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Friends Committee on Legislation of California
Analysis Prepared by : Harry Dorfman / PUB. S. / (916) 319-3744