BILL NUMBER: AB 1712 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY FEBRUARY 10, 2000
INTRODUCED BY Assembly Member Cunneen
JANUARY 3, 2000
An act to amend Section 190.2 of, and to repeal Section
190.03 of, the Penal Code, relating to the death penalty.
An act to amend Sections 190.03, 190.1, 190.3, 190.4, and 190.5,
relating to the death penalty.
LEGISLATIVE COUNSEL'S DIGEST
AB 1712, as amended, Cunneen. Death penalty.
(1) Existing law, as amended by initiative statute, provides that
the penalty for a defendant found guilty of murder in the first
degree shall be death, or confinement in the state prison for a term
of life without the possibility of parole, where one or more special
circumstances have been charged and found to be true. The
intentional killing of a person because of his or her race, color,
religion, nationality, or country of origin is one of these special
circumstances.
Existing law also provides that the penalty for murder in the
first degree is imprisonment in the state prison for life without the
possibility of parole if the defendant intentionally killed the
victim because of the victim's disability, gender, or sexual
orientation or because of the defendant's perception of the victim's
disability, gender, or sexual orientation.
This bill would include in the above special
circumstance, authorize imposition of the death
penalty upon a person convicted of the intentional killing of a
person because of his or her disability, gender, or sexual
orientation, or because of the defendant's perception of the victim's
race, color, religion, nationality, country of origin, disability,
gender, or sexual orientation. The bill would also make
conforming changes to the procedural provisions of law governing
imposition of the death penalty.
(2) Existing law provides that the penalty for a
defendant who is found guilty of murder in the first degree is
imprisonment in the state prison for life without the possibility of
parole if the victim was intentionally killed because of the victim's
disability, gender, or sexual orientation or because of the
defendant's perception of the victim's race, color, religion,
nationality, country of origin, disability, gender, or sexual
orientation, and this allegation has been charged and found to be
true.
This bill would repeal this provision.
(3) The bill would provide that it shall become
effective only when submitted to, and approved by, the voters of
California.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 190.2 of the Penal Code as amended by Section 2
of Chapter 478 of the Statutes of 1995, is amended to read:
190.2. (a) The penalty for a defendant who is found guilty of
murder in the first degree is death or imprisonment in the state
prison for life without the possibility of parole if one or more of
the following special circumstances has been found under Section
190.4 to be true:
(1) The murder was intentional and carried out for financial gain.
(2) The defendant was convicted previously of murder in the first
or second degree. For the purpose of this paragraph, an offense
committed in another jurisdiction, which if committed in California
would be punishable as first or second degree murder, shall be deemed
murder in the first or second degree.
(3) The defendant, in this proceeding, has been convicted of more
than one offense of murder in the first or second degree.
(4) The murder was committed by means of a destructive device,
bomb, or explosive planted, hidden, or concealed in any place, area,
dwelling, building, or structure, and the defendant knew, or
reasonably should have known, that his or her act or acts would
create a great risk of death to one or more human beings.
(5) The murder was committed for the purpose of avoiding or
preventing a lawful arrest, or perfecting or attempting to perfect,
an escape from lawful custody.
(6) The murder was committed by means of a destructive device,
bomb, or explosive that the defendant mailed or delivered, attempted
to mail or deliver, or caused to be mailed or delivered, and the
defendant knew, or reasonably should have known, that his or her act
or acts would create a great risk of death to one or more human
beings.
(7) The victim was a peace officer, as defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged
in the course of the performance of his or her duties, was
intentionally killed, and the defendant knew, or reasonably should
have known, that the victim was a peace officer engaged in the
performance of his or her duties; or the victim was a peace officer,
as defined in the above-enumerated sections, or a former peace
officer under any of those sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
(8) The victim was a federal law enforcement officer or agent who,
while engaged in the course of the performance of his or her duties,
was intentionally killed, and the defendant knew, or reasonably
should have known, that the victim was a federal law enforcement
officer or agent engaged in the performance of his or her duties; or
the victim was a federal law enforcement officer or agent, and was
intentionally killed in retaliation for the performance of his or her
official duties.
(9) The victim was a firefighter, as defined in Section 245.1,
who, while engaged in the course of the performance of his or her
duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a firefighter
engaged in the performance of his or her duties.
(10) The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in any
criminal or juvenile proceeding, and the killing was not committed
during the commission or attempted commission, of the crime to which
he or she was a witness; or the victim was a witness to a crime and
was intentionally killed in retaliation for his or her testimony in
any criminal or juvenile proceeding. As used in this paragraph,
"juvenile proceeding" means a proceeding brought pursuant to Section
602 or 707 of the Welfare and Institutions Code.
(11) The victim was a prosecutor or assistant prosecutor or a
former prosecutor or assistant prosecutor of any local or state
prosecutor's office in this or any other state, or of a federal
prosecutor's office, and the murder was intentionally carried out in
retaliation for, or to prevent the performance of, the victim's
official duties.
(12) The victim was a judge or former judge of any court of record
in the local, state, or federal system in this or any other state,
and the murder was intentionally carried out in retaliation for, or
to prevent the performance of, the victim's official duties.
(13) The victim was an elected or appointed official or former
official of the federal government, or of any local or state
government of this or any other state, and the killing was
intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
(14) The murder was especially heinous, atrocious, or cruel,
manifesting exceptional depravity. As used in this section, the
phrase "especially heinous, atrocious, or cruel, manifesting
exceptional depravity" means a conscienceless or pitiless crime that
is unnecessarily torturous to the victim.
(15) The defendant intentionally killed the victim while lying in
wait.
(16) The victim was intentionally killed because of his or her
race, color, religion, nationality, country of origin, disability,
gender, or sexual orientation, or because of the defendant's
perception of the victim's race, color, religion, nationality,
country of origin, disability, gender, or sexual orientation.
(17) The murder was committed while the defendant was engaged in,
or was an accomplice in, the commission of, attempted commission of,
or the immediate flight after committing, or attempting to commit,
the following felonies:
(A) Robbery in violation of Section 211 or 212.5.
(B) Kidnapping in violation of Section 207, 209, or 209.5.
(C) Rape in violation of Section 261.
(D) Sodomy in violation of Section 286.
(E) The performance of a lewd or lascivious act upon the person of
a child under the age of 14 years in violation of Section 288.
(F) Oral copulation in violation of Section 288a.
(G) Burglary in the first or second degree in violation of Section
460.
(H) Arson in violation of subdivision (b) of Section 451.
(I) Train wrecking in violation of Section 219.
(J) Mayhem in violation of Section 203.
(K) Rape by instrument in violation of Section 289.
(L) Carjacking, as defined in Section 215.
(18) The murder was intentional and involved the infliction of
torture.
(19) The defendant intentionally killed the victim by the
administration of poison.
(20) The victim was a juror in any court of record in the local,
state, or federal system in this or any other state, and the murder
was intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
(21) 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. For purposes of this paragraph, "motor vehicle" means any
vehicle as defined in Section 415 of the Vehicle Code.
(b) Unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an
actual killer, as to whom the special circumstance has been found to
be true under Section 190.4, need not have had any intent to kill at
the time of the commission of the offense which is the basis of the
special circumstance in order to suffer death or confinement in the
state prison for life without the possibility of parole.
(c) Every person, not the actual killer, who, with the intent to
kill, aids, abets, counsels, commands, induces, solicits, requests,
or assists any actor in the commission of murder in the first degree
shall be punished by death or imprisonment in the state prison for
life without the possibility of parole if one or more of the special
circumstances enumerated in subdivision (a) has been found to be true
under Section 190.4.
(d) Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of a felony enumerated in
paragraph (17) of subdivision (a) which results in the death of some
person or persons, and who is found guilty of murder in the first
degree therefor, shall be punished by death or imprisonment in the
state prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.
The penalty shall be determined as provided in this section and
Sections 190.1, 190.3, 190.4, and 190.5.
SEC. 2. Section 190.2 of the Penal Code as amended by Section 2 of
Chapter 629 of the Statutes of 1998, is amended to read:
190.2. (a) The penalty for a defendant who is found guilty of
murder in the first degree is death or imprisonment in the state
prison for life without the possibility of parole if one or more of
the following special circumstances has been found under Section
190.4 to be true:
(1) The murder was intentional and carried out for financial gain.
(2) The defendant was convicted previously of murder in the first
or second degree. For the purpose of this paragraph, an offense
committed in another jurisdiction, which if committed in California
would be punishable as first or second degree murder, shall be deemed
murder in the first or second degree.
(3) The defendant, in this proceeding, has been convicted of more
than one offense of murder in the first or second degree.
(4) The murder was committed by means of a destructive device,
bomb, or explosive planted, hidden, or concealed in any place, area,
dwelling, building, or structure, and the defendant knew, or
reasonably should have known, that his or her act or acts would
create a great risk of death to one or more human beings.
(5) The murder was committed for the purpose of avoiding or
preventing a lawful arrest, or perfecting or attempting to perfect,
an escape from lawful custody.
(6) The murder was committed by means of a destructive device,
bomb, or explosive that the defendant mailed or delivered, attempted
to mail or deliver, or caused to be mailed or delivered, and the
defendant knew, or reasonably should have known, that his or her act
or acts would create a great risk of death to one or more human
beings.
(7) The victim was a peace officer, as defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged
in the course of the performance of his or her duties, was
intentionally killed, and the defendant knew, or reasonably should
have known, that the victim was a peace officer engaged in the
performance of his or her duties; or the victim was a peace officer,
as defined in the above-enumerated sections, or a former peace
officer under any of those sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
(8) The victim was a federal law enforcement officer or agent who,
while engaged in the course of the performance of his or her duties,
was intentionally killed, and the defendant knew, or reasonably
should have known, that the victim was a federal law enforcement
officer or agent engaged in the performance of his or her duties; or
the victim was a federal law enforcement officer or agent, and was
intentionally killed in retaliation for the performance of his or her
official duties.
(9) The victim was a firefighter, as defined in Section 245.1,
who, while engaged in the course of the performance of his or her
duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a firefighter
engaged in the performance of his or her duties.
(10) The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in any
criminal or juvenile proceeding, and the killing was not committed
during the commission or attempted commission, of the crime to which
he or she was a witness; or the victim was a witness to a crime and
was intentionally killed in retaliation for his or her testimony in
any criminal or juvenile proceeding. As used in this paragraph,
"juvenile proceeding" means a proceeding brought pursuant to Section
602 or 707 of the Welfare and Institutions Code.
(11) The victim was a prosecutor or assistant prosecutor or a
former prosecutor or assistant prosecutor of any local or state
prosecutor's office in this or any other state, or of a federal
prosecutor's office, and the murder was intentionally carried out in
retaliation for, or to prevent the performance of, the victim's
official duties.
(12) The victim was a judge or former judge of any court of record
in the local, state, or federal system in this or any other state,
and the murder was intentionally carried out in retaliation for, or
to prevent the performance of, the victim's official duties.
(13) The victim was an elected or appointed official or former
official of the federal government, or of any local or state
government of this or any other state, and the killing was
intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
(14) The murder was especially heinous, atrocious, or cruel,
manifesting exceptional depravity. As used in this section, the
phrase "especially heinous, atrocious, or cruel, manifesting
exceptional depravity" means a conscienceless or pitiless crime that
is unnecessarily torturous to the victim.
(15) The defendant intentionally killed the victim by means of
lying in wait.
(16) The victim was intentionally killed because of his or her
race, color, religion, nationality, country of origin, disability,
gender, or sexual orientation, or because of the defendant's
perception of the victim's race, color, religion, nationality,
country of origin, disability, gender, or sexual orientation.
(17) The murder was committed while the defendant was engaged in,
or was an accomplice in, the commission of, attempted commission of,
or the immediate flight after committing, or attempting to commit,
the following felonies:
(A) Robbery in violation of Section 211 or 212.5.
(B) Kidnapping in violation of Section 207, 209, or 209.5.
(C) Rape in violation of Section 261.
(D) Sodomy in violation of Section 286.
(E) The performance of a lewd or lascivious act upon the person of
a child under the age of 14 years in violation of Section 288.
(F) Oral copulation in violation of Section 288a.
(G) Burglary in the first or second degree in violation of Section
460.
(H) Arson in violation of subdivision (b) of Section 451.
(I) Train wrecking in violation of Section 219.
(J) Mayhem in violation of Section 203.
(K) Rape by instrument in violation of Section 289.
(L) Carjacking, as defined in Section 215.
(M) To prove the special circumstances of kidnapping in
subparagraph (B), or arson in subparagraph (H), if there is specific
intent to kill, it is only required that there be proof of the
elements of those felonies. If so established, those two special
circumstances are proven even if the felony of kidnapping or arson is
committed primarily or solely for the purpose of facilitating the
murder.
(18) The murder was intentional and involved the infliction of
torture.
(19) The defendant intentionally killed the victim by the
administration of poison.
(20) The victim was a juror in any court of record in the local,
state, or federal system in this or any other state, and the murder
was intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
(21) 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. For purposes of this paragraph, "motor vehicle" means any
vehicle as defined in Section 415 of the Vehicle Code.
(b) Unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an
actual killer, as to whom the special circumstance has been found to
be true under Section 190.4, need not have had any intent to kill at
the time of the commission of the offense which is the basis of the
special circumstance in order to suffer death or confinement in the
state prison for life without the possibility of parole.
(c) Every person, not the actual killer, who, with the intent to
kill, aids, abets, counsels, commands, induces, solicits, requests,
or assists any actor in the commission of murder in the first degree
shall be punished by death or imprisonment in the state prison for
life without the possibility of parole if one or more of the special
circumstances enumerated in subdivision (a) has been found to be true
under Section 190.4.
(d) Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of a felony enumerated in
paragraph (17) of subdivision (a) which results in the death of some
person or persons, and who is found guilty of murder in the first
degree therefor, shall be punished by death or imprisonment in the
state prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.
The penalty shall be determined as provided in this section and
Sections 190.1, 190.3, 190.4, and 190.5.
SEC. 3. Section 190.03 of the Penal Code is repealed.
SEC. 4. Sections 1 and 2
SECTION 1. Section 190.03 of the Penal Code is amended to read:
190.03. (a) A person who commits first-degree murder shall be
punished by imprisonment in the state prison for life without the
possibility of parole, or death, if the defendant
intentionally killed the victim because of the victim's disability,
gender, or sexual orientation or because of the defendant's
perception of the victim's disability, gender, or sexual orientation.
The penalty to be applied shall be determined as provided in
Sections 190.1, 190.3, 190.4, and 190.5.
(b) The term authorized by subdivision (a) shall not apply unless
the allegation is charged in the accusatory pleading and admitted by
the defendant or found true by the trier of fact. The court shall
not strike the allegation, except in the interest of justice, in
which case the court shall state its reasons in writing for striking
the allegation.
(c) For the purpose of this section, "because of" means the bias
motivation must be a cause in fact of the offense, whether or not
other causes also exist. When multiple concurrent motives exist, the
prohibited bias must be a substantial factor in bringing about the
particular result. This subdivision does not constitute a change in,
but is declaratory of, existing law as set forth in In Re M.S.
(1995) 10 Cal.4th 698, 716-720 and People v. Superior Court of San
Diego County (Aishman) (1995) 10 Cal.4th 735.
(d) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
SEC. 2. Section 190.1 of the Penal Code is amended to read:
190.1. A case in which the death penalty may be imposed pursuant
to this chapter shall be tried in separate phases as follows:
(a) The question of the defendant's guilt shall be first
determined. If the trier of fact finds the defendant guilty of first
degree murder, it shall at the same time determine the truth of all
special circumstances charged as enumerated in Section 190.2 except
for a special circumstance charged pursuant to paragraph (2) of
subdivision (a) of Section 190.2 where it is alleged that the
defendant had been convicted in a prior proceeding of the offense of
murder in the first or second degree , or the truth of the
allegation under subdivision (a) of Section 190.03 .
(b) If the defendant is found guilty of first degree murder and
one of the special circumstances is charged pursuant to paragraph (2)
of subdivision (a) of Section 190.2 which charges that the defendant
had been convicted in a prior proceeding of the offense of murder of
the first or second degree, there shall thereupon be further
proceedings on the question of the truth of such special
circumstance.
(c) If the defendant is found guilty of first degree murder and
the allegation under subdivision (a) of Section 190.03 or
one or more special circumstances as enumerated in Section 190.2 has
been charged and found to be true, his or her sanity on
any plea of not guilty by reason of insanity under Section 1026 shall
be determined as provided in Section 190.4. If he or she
is found to be sane, there shall thereupon be further proceedings on
the question of the penalty to be imposed. Such proceedings shall
be conducted in accordance with the provisions of Section 190.3 and
190.4.
SEC. 3. Section 190.3 of the Penal Code is amended to read:
190.3. If the defendant has been found guilty of murder in the
first degree, and a special circumstance has been charged and found
to be true, or if the defendant may be subject to the death penalty
after having been found guilty of violating subdivision (a) of
Section 1672 of the Military and Veterans Code or Sections
Section 37 , or
128, or subdivision (a) of Section 190.03, or Section 219
, or 4500 of this code , the
trier of fact shall determine whether the penalty shall be death or
confinement in state prison for a term of life without the
possibility of parole. In the proceedings on the question of
penalty, evidence may be presented by both the people and the
defendant as to any matter relevant to aggravation, mitigation, and
sentence including, but not limited to, the nature and circumstances
of the present offense, any prior felony conviction or convictions
whether or not such conviction or convictions involved a crime of
violence, the presence or absence of other criminal activity by the
defendant which involved the use or attempted use of force or
violence or which involved the express or implied threat to use force
or violence, and the defendant's character, background, history,
mental condition and physical condition.
However, no evidence shall be admitted regarding other criminal
activity by the defendant which did not involve the use or attempted
use of force or violence or which did not involve the express or
implied threat to use force or violence. As used in this section,
criminal activity does not require a conviction.
However, in no event shall evidence of prior criminal activity be
admitted for an offense for which the defendant was prosecuted and
acquitted. The restriction on the use of this evidence is intended
to apply only to proceedings pursuant to this section and is not
intended to affect statutory or decisional law allowing such evidence
to be used in any other proceedings.
Except for evidence in proof of the offense or special
circumstances which subject a defendant to the death penalty, no
evidence may be presented by the prosecution in aggravation unless
notice of the evidence to be introduced has been given to the
defendant within a reasonable period of time as determined by the
court, prior to trial. Evidence may be introduced without such
notice in rebuttal to evidence introduced by the defendant in
mitigation.
The trier of
fact shall be instructed that a sentence of confinement to state
prison for a term of life without the possibility of parole may in
future after sentence is imposed, be commuted or modified to a
sentence that includes the possibility of parole by the Governor of
the State of California.
In determining the penalty, the trier of fact shall take into
account any of the following factors if relevant:
(a) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any
allegations or special circumstances found to be true pursuant
to Section 190.1.
(b) The presence or absence of criminal activity by the defendant
which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.
(c) The presence or absence of any prior felony conviction.
(d) Whether or not the offense was committed while the defendant
was under the influence of extreme mental or emotional disturbance.
(e) Whether or not the victim was a participant in the defendant's
homicidal conduct or consented to the homicidal act.
(f) Whether or not the offense was committed under circumstances
which the defendant reasonably believed to be a moral justification
or extenuation for his conduct.
(g) Whether or not defendant acted under extreme duress or under
the substantial domination of another person.
(h) Whether or not at the time of the offense the capacity of the
defendant to appreciate the criminality of his conduct or to conform
his conduct to the requirements of law was impaired as a result of
mental disease or defect, or the affects of intoxication.
(i) The age of the defendant at the time of the crime.
(j) Whether or not the defendant was an accomplice to the offense
and his participation in the commission of the offense was relatively
minor.
(k) Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.
After having heard and received all of the evidence, and after
having heard and considered the arguments of counsel, the trier of
fact shall consider, take into account and be guided by the
aggravating and mitigating circumstances referred to in this section,
and shall impose a sentence of death if the trier of fact concludes
that the aggravating circumstances outweigh the mitigating
circumstances. If the trier of fact determines that the mitigating
circumstances outweigh the aggravating circumstances the trier of
fact shall impose a sentence of confinement in state prison for a
term of life without the possibility of parole.
SEC. 4. Section 190.4 of the Penal Code is amended to read:
190.4. (a) Whenever an allegation under subdivision (a) of
Section 190.03 is pled, or special circumstances as enumerated
in Section 190.2 are alleged and the trier of fact finds the
defendant guilty of first degree murder, the trier of fact shall also
make a special finding on the truth of each allegation or
alleged special circumstance. The determination of the truth of any
or all of the allegations or special circumstances shall
be made by the trier of fact on the evidence presented at the trial
or at the hearing held pursuant to Subdivision
subdivision (b) of Section 190.1.
In case of a reasonable doubt as to whether an allegation or
a special circumstance is true, the defendant is entitled to a
finding that is not true. The trier of fact shall make a special
finding that each allegation or special circumstance
charged is either true or not true. Whenever a special circumstance
requires proof of the commission or attempted commission of a crime,
such crime shall be charged and proved pursuant to the general law
applying to the trial and conviction of the crime.
If the defendant was convicted by the court sitting without a
jury, the trier of fact shall be a jury unless a jury is waived by
the defendant and by the people, in which case the trier of fact
shall be the court. If the defendant was convicted by a plea of
guilty, the trier of fact shall be a jury unless a jury is waived by
the defendant and by the people.
If the trier of fact finds that an allegation under
subdivision (a) of Section 190.03 or any one or more of the
special circumstances enumerated in Section 190.2 as charged is true,
there shall be a separate penalty hearing, and neither the finding
that any of the remaining allegations or special
circumstances charged is not true, nor if the trier of fact is a
jury, the inability of the jury to agree on the issue of the truth or
untruth of any of the remaining allegation or special
circumstances charged, shall prevent the holding of a separate
penalty hearing.
In any case in which the defendant has been found guilty by a
jury, and the jury has been unable to reach an unanimous verdict that
one or more of the allegations or special circumstances
charged are true, and does not reach a unanimous verdict that all the
allegations or special circumstances charged are not
true, the court shall dismiss the jury and shall order a new jury
impaneled to try the issues, but the issue of guilt shall not be
tried by such jury, nor shall such jury retry the issue of the truth
of any of the allegations or special circumstances which
were found by an unanimous verdict of the previous jury to be untrue.
If such new jury is unable to reach the unanimous verdict that one
or more of the allegations or special circumstances it is
trying are true, the court shall dismiss the jury and in the court's
discretion shall either order a new jury impaneled to try the issues
the previous jury was unable to reach the unanimous verdict on, or
impose a punishment of confinement in state prison for a term of 25
years.
(b) If the defendant was convicted by the court sitting
without a jury the trier of fact at the penalty hearing shall be a
jury unless a jury is waived by the defendant and the people, in
which case the trier of fact shall be the court. If the defendant
was convicted by a plea of guilty, the trier of fact shall be a jury
unless a jury is waived by the defendant and the people.
If the trier of fact is a jury and has been unable to reach a
unanimous verdict as to what the penalty shall be, the court shall
dismiss the jury and shall order a new jury impaneled to try the
issue as to what the penalty shall be. If such new jury is unable to
reach a unanimous verdict as to what the penalty shall be, the court
in its discretion shall either order a new jury or impose a
punishment of confinement in state prison for a term of life without
the possibility of parole.
(c) If the trier of fact which convicted the defendant of a crime
for which he may be subject to the death penalty was a jury, the same
jury shall consider any plea of not guilty by reason of insanity
pursuant to Section 1026, the truth of any special circumstances
which may be alleged, and the penalty to be applied, unless for good
cause shown the court discharges that jury in which case a new jury
shall be drawn. The court shall state facts in support of the
finding of good cause upon the record and cause them to be entered
into the minutes.
(d) In any case in which the defendant may be subject to the death
penalty, evidence presented at any prior phase of the trial,
including any proceeding under a plea of not guilty by reason of
insanity pursuant to Section 1026 shall be considered an any
subsequent phase of the trial, if the trier of fact of the prior
phase is the same trier of fact at the subsequent phase.
(e) In every case in which the trier of fact has returned a
verdict or finding imposing the death penalty, the defendant shall be
deemed to have made an application for modification of such verdict
or finding pursuant to Subdivision 7 of Section 11. In ruling on the
application, the judge shall review the evidence, consider, take
into account, and be guided by the aggravating and mitigating
circumstances referred to in Section 190.3, and shall make a
determination as to whether the jury's findings and verdicts that the
aggravating circumstances outweigh the mitigating circumstances are
contrary to law or the evidence presented. The judge shall state on
the record the reasons for his findings.
The judge shall set forth the reasons for his ruling on the
application and direct that they be entered on the Clerk's minutes.
The denial of the modification of the death penalty verdict pursuant
to subdivision (7) of Section 1181 shall be reviewed on the defendant'
s automatic appeal pursuant to subdivision (b) of Section 1239. The
granting of the application shall be reviewed on the People's appeal
pursuant to paragraph (6).
SEC. 5. Section 190.5 of the Penal Code is amended to read:
190.5. (a) Notwithstanding any other provision of law, the death
penalty shall not be imposed upon any person who is under the age of
18 at the time of the commission of the crime. The burden of proof
as to the age of such person shall be upon the defendant.
(b) The penalty for a defendant found guilty of murder in the
first degree, in any case in which , an allegation under
subdivision (a) of Section 190.03 or one or more special
circumstances enumerated in Section 190.2 or 190.25 has been found to
be true under Section 190.4, who was 16 years of age or older and
under the age of 18 years at the time of the commission of the crime,
shall be confinement in the state prison for life without the
possibility of parole or, at the discretion of the court, 25 years to
life.
(c) The trier of fact shall determine the existence of an
allegation under subdivision (a) of Section 190.03 or any
special circumstance pursuant to the procedure set forth in Section
190.4.
SEC. 6. Sections 1 to 5, inclusive, of this act affect an
initiative statute and shall become effective only when submitted to,
and approved by, the voters of California, pursuant to subdivision
(c) of Section 10 of Article II of the California Constitution.
SEC. 5. Section 1 of this act shall become effective unless
Section 2 of Chapter 629 of the Statutes of 1998 is submitted to and
approved by the voters of California, in which case Section 2 of this
act shall become effective and Section 1 of this act shall not
become effective.
SEC. 6. Section 3 of this act shall become effective only if
Section 1 or 2 of this act are approved by the voters.