BILL ANALYSIS
AB 2826
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Date of Hearing: April 25, 2000
Chief Counsel: Bruce E. Chan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
AB 2826 (Cardoza) - As Amended: April 3, 2000
SUMMARY : Authorizes imposition of the death penalty or life
without the possibility of parole under three new "special
circumstances." Specifically, this bill creates the special
circumstances of:
1)The murder was intentional and involved the mutilation or
dismemberment of the victim;
2)The defendant intentionally killed the victim by means of
intentionally burning the victim to death; or,
3)The defendant intentionally killed the victim in order to do
one of the following acts:
a)Engage in sexual acts upon the victim's corpse;
b)Dismember the victim's corpse;
c)Mutilate the victim's corpse; or,
d)Incinerate the victim's corpse.
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.)
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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 destructive device or explosive; knowing use of ammunition
designed primarily to penetrate metal or armor; poison; lying
in wait; torture; any kind of willful, deliberate, and
premeditated killing; discharging a firearm from a motor
vehicle, intentionally at another person outside of the
vehicle with the intent to inflict death; and any murder
committed in the perpetration of, or attempt to perpetrate:
a)Arson;
b)Rape;
c)Carjacking;
d)Robbery;
e)Burglary;
f)Mayhem;
g)Kidnapping;
h)Train wrecking;
i)Sodomy;
j)Lewd or lascivious acts on a child under age 14;
aa) Oral copulation; and,
bb) 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.)
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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 first-degree
murder cases where the trial jury finds true at least one
"special circumstance." Currently, the Penal Code lists 22
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
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retaliation for testifying;
aa) The victim was a local, state or federal prosecutor
murdered in retaliation for, or to prevent the performance
of, official duties;
bb) The victim was a local, state, or federal judge murdered
in retaliation for, or to prevent the performance of,
official duties;
cc) 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;
dd) The murder was especially heinous, atrocious, or cruel,
"manifesting exceptional depravity." "Manifesting
exceptional depravity" means "a conscienceless or pitiless
crime that is unnecessarily torturous";
ee) The defendant intentionally killed the victim while
lying in wait;
ff) The victim was intentionally killed because of his or
her race, color, religion, nationality, or country of
origin;
gg) 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: robbery;
kidnapping; rape; sodomy; lewd or lascivious act on a child
under age 14; oral copulation; burglary; arson; train
wrecking; mayhem; rape by instrument; carjacking; torture;
poison; the victim was a local, state or federal juror
murdered in retaliation for, or to prevent the performance
of his/her official duties; and, the murder was perpetrated
by discharging a firearm from a vehicle.
hh) The murder was intentional and involved the infliction
of torture;
ii) The defendant intentionally killed the victim by the
administration of poison;
jj) The victim was a juror and the murder was intentionally
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carried out in retaliation for, or to prevent the
performance of, the victim's duties as a juror;
aaa) The murder was intentional and committed by discharging
a firearm from a motor vehicle; and,
bbb) The defendant intentionally killed the victim while
actively participating in a criminal street gang. (Penal
Code Section 190.2.)
9)Requires three separate findings at the trial in order to
qualify for the death penalty: (a) guilty of first degree
murder, (b) 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" where the either the judge or jury considers factors in
aggravation or mitigation. (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))
10)Provides that during the penalty phase of a death penalty
trial, the prosecution and the defendant may present evidence
relevant to aggravation, mitigation, and sentence. In
determining the penalty to be imposed, the trier of fact may
take into account any relevant enumerated factors. Such
factors in aggravation or mitigation include:
a)The circumstances of the crime and the existence of any
special circumstances;
b)The presence or absence of threats or the actual use of
force or violence;
c)Prior felony convictions;
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 or consented to
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the homicidal act;
f)Whether or not the offense was committed under
circumstances that the defendant believed to be a moral
justification or extenuation of his or her conduct.
g)Whether or not the 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 or her
conduct or to conform his or her conduct to the law was
impaired as a result of mental disease, defect, or the
effects of intoxication;
i)The age of the defendant at the time of the crime;
j)Whether or not the defendant was an accomplice and his or
her participation in the offense was relatively minor; and,
aa) Any other circumstance that extenuates the gravity of
the crime, though not a legal excuse for the crime. (Penal
Code Section 190.3.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement: According to the author, "AB 2826 would
address heinous acts by murderers on their victims. This bill
would make an intentional killing by mutilating, dismembering
or burning the victim a special circumstance to homicide.
This bill would also make an intentional killing committed for
the purpose of dismembering, mutilating, burning or performing
sexual acts upon the corpse of the victim a special
circumstance. Such individuals would be eligible, if
convicted, for the death penalty or life without the
possibility of parole. Society should be protected from these
despicable acts and these horrible offenders."
2)Background: This bill, "Debbie's Law," is based on the
killing of Deborah Whitlock. According to material submitted
by the author, Ms. Whitlock, an assistant manager at Sears in
Modesto, California, was stabbed to death. Ms. Whitlock had
been murdered in her home in the early hours of the morning by
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having her throat severely slashed by an intruder. The
victim's husband discovered the body of his wife upon
returning home. Nine years passed between the killing and the
arrest of the suspect. The police investigation was assisted
by the efforts of the victim's mother who rented billboards,
produced a local television program, and secured segments on
"America's Most Wanted" and "Unsolved Mysteries."
According to information from the deputy district attorney who
investigated and prosecuted the case, there were indications
of a sexual assault present at the crime scene. However,
forensic analysis could not determine whether sexual
intercourse occurred before or after death. "If the victim
was deceased when the assault took place, then the special
circumstance of rape/murder would not apply. The decision was
made to allow the defendant to plead guilty to first degree
murder for a sentence of life without possibility of parole."
Upon being interviewed after pleading guilty, the defendant
stated he had engaged in the activity after killing the
victim.
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 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 persons who
receive death and those who do not. The United States Supreme
Court has stated, "[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.] At some point,
the courts may announce that the "special circumstances" list
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)Existing Special Circumstances May Include Murder Involving
The Mutilation Or Dismemberment Of The Victim: This bill adds
a special circumstance of a murder with mutilation or
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dismemberment of the victim. While existing law does not
explicitly refer to such terms, an intentional murder
involving mutilation or dismemberment is arguably either a
murder that is "especially heinous, atrocious, or cruel,
manifesting exceptional depravity" or torture murder. [Penal
Code Section 190.2(a)(14), 190.2(a)(18).]
To illustrate how existing law may already provide for the death
penalty under the proposed language of this bill, consider the
definition of torture murder: (a) the murder was intentional,
and (b) the defendant intended to inflict extreme cruel
physical pain and suffering upon a living human being for the
purpose of revenge, extortion, persuasion or for any sadistic
purpose. (See: CALJIC 8.81.18.) Notwithstanding the issue
of whether "mutilation" is vague, it appears likely that the
prosecution already has the discretion to seek the death
penalty if there was evidence of mutilation or dismemberment.
5)Existing Special Circumstances May Include Murder Involving
Burning The Victim To Death: As described previously, this
bill adds a special circumstance that may already exist in the
current statutory scheme. Burning the victim to death is
arguably either a murder that is "especially heinous,
atrocious, or cruel, manifesting exceptional depravity" or
torture murder. If the killing involved burning a structure,
forestland, or property, then the murder would be an arson
murder - an existing special circumstance. [Penal Code
Section 190.2(a)(17)(H).]
6)Difficulties With Statutory Interpretation: This bill may
create problems related to statutory interpretation. For
example, this bill does not define "sexual acts." If a
husband or boyfriend kills his wife or girlfriend and
remorsefully kisses the dead body, is that a sexual act?
Existing law provides that murder during the commission of, or
attempted commission of, certain sex offenses may subject the
defendant to the death penalty - rape, sodomy, lewd act on a
child under the age of 14, oral copulation, or rape by
instrument. Another possible ambiguity is how does one define
"mutilation." The American Heritage Dictionary defines
mutilate as: "(1) to deprive of a limb or an essential part;
cripple. (2) To disfigure by damaging irreparably. (3) To
make imperfect by excising or altering parts." Which
definition is contemplated?
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This bill also creates a special circumstance when the defendant
intentionally killed the victim in order to engage in sexual
acts upon the corpse, dismember the corpse, mutilate the
corpse, or incinerate the corpse. Will this additional
death-qualifying offense create more litigation with forensic
pathologists for both the prosecution and the defense arguing
over when the damage to the victim occurred? For example,
consider the question of whether the mutilation occurred
before or after death? If it occurred before death, then
would not the defendant be guilty of torture murder and thus
eligible for the death penalty? If it occurred after death,
how could the prosecution prove that the killing was for the
purpose of post-mortem mutilation/dismemberment as opposed to
a non-special circumstance murder with
mutilation/dismemberment for the purpose of concealing the
crime?
7)Statement In Opposition: The Catholic Bishops of California
state, "People who murder commit heinous acts. The actions to
which AB 2826 presents a response are particularly despicable.
They are the work of sick minds, not calculating minds that
will be deterred by designated punishment. Let's not turn our
disgust for their actions into vengeance. It demeans us as
individuals and as a people. During the past century
California executed five hundred people?More than 563
individuals await execution in our prisons. Death dealing as
a policy instrument gradually erodes our common vision of the
dignity of the human person and the value of human life. It
begets the very attitudes, and actions that the policy wishes
to prevent. A vote rejecting AB 2826 signifies that we can
break the cycle of violence. We can create a more humane,
hopeful and effective response to the growth of violent
crime."
REGISTERED SUPPORT / OPPOSITION :
Support
Crime Victims United
Peace Officers Research Association of California
Opposition
American Civil Liberties Union
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Attorney General
California Public Defenders Association
Catholic Bishops of California
Friends Committee On Legislation
Three private citizens
Analysis Prepared by : Bruce Chan / PUB. S. / (916) 319-3744