BILL ANALYSIS
AB 589
Page 1
Date of Hearing: April 13, 1999
Chief Counsel: Harry M. Dorfman
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 589 (Margett) - As Introduced: February 19, 1999
SUMMARY : Expands the "special circumstances" list allowing
imposition of the death penalty to include officers employed by
a state hospital under the jurisdiction of the Departments of
Mental Health or Developmental Services.
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 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)Enumerates 16 categories of peace officers as murder victims,
any one of which who is murdered in the first degree, while
engaged in the performance of his or her duties, or in
retaliation for the performance of official duties, authorizes
imposition of the death penalty.
Those enumerated officers include, in part an undersheriff;
marshal of a municipal court; a port warden of the Harbor
Department of the City of Los Angeles; peace officer employee
of the Department of Fish and Game, Department of Parks and
Recreation, Department of Alcoholic Beverage Control,
California Exposition and State Fair, Department of Consumer
Affairs - Division of Investigation, Medical Board of
California, Board of Dental Examiners, California Horse Racing
Board, Department of Health Services, Department of Social
Services, Department of Mental Health, Department of
Developmental Services, Department of Alcohol and Drug
Programs, and Department of Toxic Substances Control;
investigator of the Department of Corporations; park ranger;
security officer of county water district; reserve park
ranger; animal control officer; employee of the Department of
Financial Institutions; person designated by a local agency as
a litter control officer, vehicle abatement officer,
registered sanitarian, and solid waste specialist.
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement . According to the author, "AB 589 would
include peace officers within the State Departments of Mental
Health and Developmental Services amongst other peace officers
who are listed in an enhanced penalty category for the crime
of murder.
"The category, included within Penal Code Section 190.2,
provides that murder of a peace officer in the first degree
shall be punishable by death or imprisonment in the state
prison for life without the possibility of parole. These
CAUSE members, defined in Penal Code Section 830.38, are the
only peace officers in the state not included within the
above-mentioned category.
"The commitment to duty and the risk of life these peace
officers face is no less real than any officer. We believe
that the non-inclusion of the peace officers to be a technical
error, which is why we have requested this measure."
2)Adding More Special Circumstances Raises Constitutional
Concerns. Because the death penalty represents the
sovereign's greatest exercise of punitive power, the courts
take care 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.
In this particular case, the list of peace officers is currently
so extensive, a court most likely would find inclusion of the
peace officers added by this bill constitutionally sound.
3)Current Special Circumstances Law Offers Protection .
Existing special circumstances law includes a number of
foreseeable situations where peace officers are protected. If
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the murder occurred to avoid arrest or to make an escape from
lawful custody, the murderer is eligible for death pursuant to
Penal Code Section 190.2(a)(5). If the defendant had suffered
a prior conviction for first- or second-degree murder, the
defendant is eligible for death pursuant to Penal Code Section
190.2(a)(2). If the defendant murdered while lying in wait
for the victim, the defendant is eligible for death pursuant
to Penal Code Section 190.2(a)(15). If the murder was
especially heinous, atrocious or cruel, the murderer is
eligible for death pursuant to Penal Code Section
190.2(a)(14).
4)Arguments in Opposition.
a) According to the California Attorneys for Criminal
Justice, "By adding yet another special circumstance to the
existing list of at least 21 such circumstances, courts may
find California's death penalty statute to be so broad as
to violate the strictures established by the Supreme Court
in Furman v. Georgia , (1972) 408 U.S. 238. Additionally,
expansion of the death penalty is a violation of
international law. The United States is a signatory to the
International Covenant on Civil and Political Rights. As
such it is obligated not to expand its existing death
penalty provisions. This applies to the individual States
as well as the federal government."
b) According to the Friends Committee on Legislation of
California, "We think capital punishment also tends to
brutalize society, and to reduce respect for human life.
It has been frequently noted that an execution brings no
real closure to the survivors of the murder victim. In
fact, the lengthy proceedings which are necessarily
connected with a capital case may have the effect of
delaying the recovery process for members of the victim's
family. There is no credible evidence that capital
punishment is more effective than a lengthy prison term in
deterring murder."
REGISTERED SUPPORT / OPPOSITION :
Support
California Union of Safety Employees (Sponsor)
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California Peace Officers' Association
California Police Chiefs' Association
Doris Tate Crime Victims Bureau
Opposition
American Civil Liberties Union
California Public Defenders Association
Friends Committee on Legislation
Analysis Prepared by : Harry Dorfman / PUB. S. / (916) 319-3744