BILL ANALYSIS
AB 1184
Page 1
Date of Hearing: April 20, 1999
Chief Counsel: Harry M. Dorfman
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 1184 (Zettel and Pescetti) - As Introduced: February 25,
1999
As Proposed to be Amended in Committee
SUMMARY : Expands "special circumstances" authorizing the death
penalty to include murders where the defendant killed a victim
who was at the time of the killing protected by a restraining
order or protective order against the defendant, and the
defendant had notice of the order.
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 willful disobedience of any process or order
lawfully issued by any court is a contempt of court - a
misdemeanor - punishable by up to six months in county jai, a
$1,000 fine, or both. (Penal Code Section 166(a)(4).)
10)Provides that a person who contacts another by phone, mail or
directly in violation of a court order, and who has previously
been convicted of violating Penal Code Section 646.9
(stalking), shall be punished by up to one year in county
jail, or a $5,000 fine, or both. (Penal Code Section
166(b)(1).)
11) Provides that a willful violation of "any protective order
or stay away order" issued in a pending criminal proceeding
involving domestic violence, or as a condition of probation
after a conviction involving domestic violence, is a
misdemeanor punishable by up to one year in county jail, or up
to a $1,000 fine, or both. (Penal Code Section 166(c)(1).)
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Further provides that this subsection applies to any court
order issued pursuant to Family Code Section 6320, or an order
excluding one party from the family dwelling or from the
dwelling of the other, or an order prohibiting specific
behavior. (Penal Code Section 166(c)(3).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement. According to the author, "The situation
of a murder in violation of a restraining order is not only a
blatant disregard for life, but also a subversion of the law.
Courts issue protective restraining orders to protect the
lives of, and to provide safety to, potential victims of
violent crimes. This bill is needed to save lives and to put
teeth into domestic restraining orders. In order to save
lives, we must hold these criminals responsible for the grave
consequences of their actions. Therefore, the death penalty
should be expanded to include the situation in which a violent
offender intentionally murders a person in violation of a
court order."
2)Adding More Special Circumstances Raise 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 "[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.] The effort to
expand special circumstances continues. 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. Such a court ruling would
require the Legislature to rewrite the special circumstances
law to return it to a judicially acceptable dimension.
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3)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).)
4)Existing Special Circumstances that Include These Types of
Murders. If a defendant lies in wait to kill the victim who
is protected by a court's restraining order, the defendant is
eligible for death pursuant to Penal Code Section
190.2(a)(15). If the defendant had previously been convicted
of first- or second-degree murder, the defendant is eligible
for death pursuant to Penal Code Section 190.2(a)(2). If the
defendant murders more than one person in the incident (e.g.,
an ex-wife and children), he is eligible for death pursuant to
Penal Code Section 190.2(a)(3). If the defendant uses a
destructive device that was planted, hidden or concealed to
accomplish the murder, the defendant is eligible for death
pursuant to Penal Code Section 190.2(a)(4). If the defendant
mails the destructive device and murders the victim, the
defendant is eligible for death pursuant to Penal Code Section
190.2(a)(6). If the murder was especially heinous, atrocious
or cruel the defendant is eligible for death. If the
defendant killed the victim while committing, or attempting to
commit, kidnapping, rape, rape by instrument, sodomy, oral
copulation, burglary, arson, or mayhem, the defendant is
eligible for death pursuant to Penal Code Section
190.2(a)(17). If the defendant intentionally killed the
victim and the offense involved the infliction of torture, the
defendant is death eligible pursuant to Penal Code Section
190.2(a)(18). If the defendant drove by the victim, and shot
her from his car, intending to kill her, the defendant is
eligible for death pursuant to Penal Code Section
190.2(a)(21).
5)Do Protective Orders Issued by the Courts Have Teeth? A court
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order only has force to the extent that the person restrained
by the order chooses to obey. By definition, the order
presumes that the person restrained is free in the community,
or may leave custody at some point and return to freedom
within the community. One goal of these kinds of orders is to
keep the peace within the community. Because of the high
emotions involved in domestic situations, an upset person may
spontaneously decide to disregard any court orders preventing
contact with another person. In the past 10 years or so, many
anecdotes have been gathered detailing the blatant disregard
some men have for court orders as they inflict violence on
women "protected" by court orders.
A Massachusetts study covering 1991-1995 concluded that for the
period 194 people were killed in homicides involving "intimate
partner violence." 89% of the perpetrators were men.
Slightly less than 25% had active restraining orders in force
at the time of the homicide. Just under 40% had some history
of restraining orders during the relationship. The study
further pointed out that in Massachusetts approximately 40,000
restraining orders are issued every year, 90% which are issued
in the context of intimate partner abuse. If Massachusetts
averaged roughly 40 homicides annually during the study
period, for every 1,000 restraining orders issued, one person
died violently. The impact of those statistics is that most
orders do not end up being part of a homicide, but the
absolute number of domestic violence-related homicides is high
nonetheless. Further, a significant percentage of those
persons ordered to stay away from the victims had no regard
for court orders.
The National Clearinghouse for the Defense of Battered Women has
compiled information, including the following:
Of the 17 women killed in Massachusetts in the first eight
months of 1992, 10 had protective orders against their
murderers indicating that they feared for their safety.
(Caroline Knapp, "A Plague of Murders: Open Season on Women,"
The Boston Phoenix, August 1992.)
In several well-publicized cases, women who had obtained civil
protection orders from a court were then murdered by the same
men who had been ordered to stay away from the women, the
result of inadequate police enforcement and the judges'
unwillingness to jail men for violating such orders.
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(Schmitt, "Family Violence: Protection Improves but not
Prevention," New York Times , January 17, 1989 at B1)
In Virginia, the Newport News Police Department reports that in
nearly 50% of all homicides resulting from domestic violence,
the victims had contacted the police previously for help.
(NCJA Justice Research, "States, Federal Government Increasing
Focus on Violence Against Women," September/October 1990,
p.3.)
In San Francisco during 1993-94, there were 31 female homicide
victims in solved cases. 15 of those cases were family
violence related. One-half the victims were killed by their
male spouses or partners. Firearms were used in 33% of these
cases.
6)A Judge Has Limited Options in Many Domestic Violence Cases.
A judge has limited options when confronted with a domestic
violence incident that has resulted in slight or minor
physical injuries to the victim and where there is little or
no history of discord in the relationship. The alleged
offender will most likely promise "never to do it again" and
to stay away from the victim while the case is pending in the
criminal courts. Faced with all these circumstances, many
judges will find it difficult to keep alleged offenders in
custody; therefore, judges will formalize protective orders,
make sure the accused have received copies, and set future
dates to return to court. The victim may not be satisfied at
all with this response by the courts; she may be terribly
fearful of her husband's/boyfriend's next step. But a judge,
knowing that the local jail is overcrowded, may often choose
to issue a protective order in "low level" domestic violence
cases and leave the accused out of custody.
7)Increased Capital Cases in Domestic Violence Scenarios. This
bill calls up the image of the homicidal husband or ex-husband
determined to kill his wife and/or children, despite a court
order to stay away from them. However, the reciprocity of
this bill will expose a woman who has a reciprocal stay away
order to the death penalty if she kills her
husband/ex-husband. Self-defense and battered woman's
syndrome will certainly be available as possible defenses at
trial, but a point to keep in mind is that this bill increases
the exposure of all adult family members to the death penalty.
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8)Other States with Similar Laws. Kentucky Revised Statutes
Section 532.025(2)(a)(8) includes as an aggravating
circumstance to consider when deciding to impose death that
"[t]he offender murdered the victim when an emergency
protective order or a domestic violence order was in effect,
or when any other order designed to protect the victim from
the offender, such as an order issued as a condition of a
bond, conditional release, parole, or pretrial diversion, was
in effect."
Pennsylvania Consolidated Statutes Section 9711(d)(18) includes
as an aggravating circumstance to consider when deciding to
impose death that "[a]t the time of the killing the defendant
was subject to a court order restricting in any way the
defendant's behavior toward the victim pursuant to [applicable
Pennsylvania statutes] (relating to protection from abuse) or
any other order of a court of common pleas or of the minor
judiciary designed in whole or in part to protect the victim
from the defendant."
9)Arguments in Opposition. The Attorney General states, "This
amendment does not appear to be necessary?.[M]urders by
someone covered by a restraining or protective order may
already be potential capital cases depending upon the
circumstances of the case. There is no suggestion in the
proposed legislation that murders under such circumstances
have become such a significant problem that they should always
be treated as capital cases. The change could, however,
provide further support for arguments that California has so
many special circumstances that it fails to adequately narrow
the category of death-eligible first-degree murders. Although
that argument has been consistently rejected to date, adding
yet another special circumstance will at least keep the
argument viable."
10)Prior Legislation. AB 1698 (Lempert), of the 1997-98
Legislative Session, held on the Assembly Appropriations
Committee suspense file, proposed a similar addition to the
list of special circumstances. AB 1698's language provided
"The defendant intentionally killed the victim or children, or
both, who were persons protected under a restraining order or
protective order against the defendant, and after the
defendant had been personally served with a copy of the
restraining order or protective order, or was present in court
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when the order was issued, or the defendant was ordered, as a
condition of probation, to have no contact with the victim."
The author has proposed amendments to this bill which
incorporate notice provisions, which a court would necessarily
read into the law.
11)Similar Legislation. AB 3(Ashburn), failed passage in this
Committee; AB 4 (Baldwin), set for hearing by this Committee
today; AB 54 (Battin), failed passage in this Committee; AB
371 (Havice), set for hearing by this Committee today; and AB
589 (Margett), currently pending before the Assembly
Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
Doris Tate Crime Victims Bureau
Opposition
American Civil Liberties Union
Attorney General
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Harry Dorfman / PUB. S. / (916) 319-3744