BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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SB 31 (Peace)
As AmendedJanuary 19, 1999
Hearing date: April 6, 1999
PenalCode
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MURDER: SPECIAL CIRCUMSTANCES
HISTORY
Source: Author
Prior Legislation: SB 1799 (Calderon) 1998 held in Senate
Appropriations.
AB 490 (Ashburn) 1998 held in Senate
Appropriations.
SB 1878 (Kopp) Chapter 629, Statutes of 1998
SB 1079 (Calderon) failed Senate Public Safety
1/13/98
AB 1538 (Havice)currently in Senate Public
Safety
SB 1376 (Peace) 1996, (failed passage in
Senate Committee on
Criminal Procedure)
AB 1741 (Bordonaro) 1996, (failed passage in
Senate Committee
on Criminal Procedure)
SB 1404 (Ayala) 1996 (returned to and held in
Senate Criminal
Procedure)
SB 32 (Peace) Chapter 477, Statutes of 1995;
Proposition 195
SB 9 (Ayala) Chapter 478, Statutes of 1995;
Proposition 196
Support: Poway City Council; San Diego County Board of
Supervisors; Doris Tate
Crime Victims Bureau; City of Chula Vista
Opposition:Friends Committee on Legislation; California
Public Defender's
Association; California Attorneys for Criminal
Justice; American Civil
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Liberties Union; California Catholic Conference
KEY ISSUES
SHOULD THE TERM "DELIBERATE" BE REMOVED FROM THE DEFINITION OF EXPRESS MALICE?
SHOULD ANY MURDER WHICH IS PERPETRATED BY MEANS OF KIDNAPPING OR ARSON-AND THE
KIDNAPPING OR ARSON IS DONE WITH THE INTENT TO KILL THE VICTIM OF THAT
KIDNAPPING OR ARSON-BE ADDED TO THE SPECIFIC LIST OF FELONIES WHICH CONSTITUTE
FIRST DEGREE MURDER?
SHOULD ANY MURDER OF A VICTIM UNDER THE AGE OF FOURTEEN, WHEN THE DEFENDANT
KNEW OR SHOULD HAVE KNOWN THE VICTIM WAS UNDER THE AGE OF FOURTEEN, BE ADDED
TO THE SPECIFIC LIST OF FELONIES WHICH CONSTITUTE FIRST DEGREE MURDER?
SHOULD THE MURDER OF A CHILD UNDER THE AGE OF FOURTEEN BE A SPECIAL
CIRCUMSTANCE WHICH IF CHARGED AND FOUND TO BE TRUE WOULD BE PUNISHABLE BY
DEATH?
PURPOSE
The purpose of this bill is to 1) remove the term
deliberate from the definition of express malice; 2) add
murder perpetrated by means of kidnapping or arson and
murder of a child under the age of fourteen to the list of
specified felonies which constitute first degree murder;
and 3) make murder of a child under the age of fourteen a
death penalty offense.
Existing law defines malice, for the purposes of murder, as
express or implied. "It is express when there is
manifested a deliberate intention unlawfully to take away
the life of a fellow creature. It is implied, when no
considerable provocation appears or when the circumstances
attending the killing show an abandoned and malignant
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heart." (Penal Code section 188)
This bill removes the term "deliberate" from the definition
of express malice and states that this is declaratory of
existing law.
Existing law provides that any murder that is perpetrated
by specified means, including arson, rape, carjacking,
robbery, burglary, mayhem and kidnapping or by any other
kind of willful, deliberate premeditated killing is murder
in the first degree. All other kinds of murder are murder
in the second degree. (Penal Code section 189)
This bill adds any murder, which is perpetrated by means of
kidnapping or arson when the kidnapping or arson is done
with the intent to kill the victim to the list of specified
murders, which constitute murder in the first degree.
This bill also adds any murder when the victim is under the
age of fourteen years of age at the time of the murder and
the defendant reasonably should have known that the victim
is under fourteen years of age to the list of specified
murders that constitute murder in the first degree.
Existing law provides that the penalty for a defendant
found guilty of murder in the first degree, where one or
more special circumstance has been charged and found to be
true, shall be by death or confinement in state prison for
a term of life without the possibility of parole. (Penal
Code section 190.2)
This bill would make the first degree murder of a child
under the age of fourteen a special circumstance which if
charged and found to be true would be punishable by death
or confinement in state prison for life without parole.
COMMENTS
1. Need for the Bill
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According to the author:
SB 31 has four main components.
First, consistent with numerous decisions of the
California Supreme Court it amends the definition
of "express malice" to state that it consists
solely of an intention to unlawfully kill another
by removing the duplicative word "deliberate."
Secondly, it clarifies that a murder where the
defendant has the intent to kill is elevated from
second to first degree murder where the methodology
or means of committing the crime is kidnapping or
arson. This is consistent with SB 1878 enacted
last year and the Supreme Court's Gilbert decision
in 1965. This issue has arisen in several
instances where victims were kidnapped to kill them
or they were intentionally killed by means of
arson. There is no "dual use" issue for the
reasons noted below.
Third-and this is integral to the fourth change-it
elevates a second degree murder to a first degree
murder where the defendant intentionally kills a
victim who is under fourteen years of age at the
time of the murder, and the
defendant knows or reasonably should know that the
victim is under fourteen years of age. This issue
has arisen in several instances where victims were
kidnapped to kill them or they were intentionally
killed by means of arson.
Last, but not least, this bill makes a first degree
murder (as revised by this bill) a special
circumstance punishable by death or life without
parole where the defendant intentionally kills a
victim who is under fourteen years of age at the
time of the murder, and the defendant knows or
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reasonably should know that the victim is under
fourteen years of age. This latter change was in
SB 1799 and AB 490 of last session, which passed
the Senate Public Safety Committee.
As to this last change, the laws of this state
provide unique protections to victims under
fourteen. This bill is consistent with that policy
without an overbroad proposal.
As to the "dual use" argument against the third and
fourth provisions of this bill, that argument has
been rejected by the United States Supreme Court
and the California Supreme Court. It was also
rejected when the Legislature enacted the 1993 and
1995 changes on drive-by shootings in the two Ayala
laws.
2. Express Malice
Existing statutory law defines express malice for purposes
of murder as "a deliberate intention unlawfully to take
away the life of a fellow creature." This bill removes the
term "deliberate" and states that this is declarative of
existing law.
According to the author:
The Supreme Court has on at least five separate
occasions from 1945 to 1996, read the word
"deliberate" out of the statute. See, e.g.: In re
Christian S . (1994) 7 Cal. 4th 768, 780; People v.
Nieto Benetiz (1992) 4 Cal. 4th 91, 103; People v.
Saille , (1991) 54 Cal. 3d 1103, 1114-1115; People
v. Valentine , (1946) 28 Cal. 2nd 121, 131-133;
People v. Bender , (1945) 27 Cal. 2nd 164, 186.
The Supreme Court in those decisions has held that
the word "deliberate" is confusing and should be
repealed. All that is required for express malice
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is intent to kill. An intentional killing under
current law is murder and under the residual clause
of section 189 is murder in the second degree. As
such, an intent to kill is express malice. (See
People v. Alvarado , (1991) 232 Cal. App. 3d 501,
505.)
SHOULD THE TERM "DELIBERATE" BE REMOVED FROM THE DEFINITION
OF EXPRESS MALICE AND SHOULD AN UNCODIFIED SECTION DECLARE
THAT THIS IS DECLARATIVE OF EXISTING LAW?
3. Making Murder of a Child under the Age of Fourteen a
Special Circumstance
This bill adds to the list of special circumstances the
intentional killing of a victim under fourteen years of
age, when the defendant knew or reasonably should have
known that the victim was under fourteen years of age.
a. Meaningful Basis Required for Distinguishing
between Special Circumstance Crimes and Other
Murders
Historically, California's special circumstance
death penalty law was first enacted in 1973 by SB
450 (Deukmejian) in response to a line of U.S.
Supreme Court edicts that the arbitrary imposition
of the death penalty constitutes cruel and unusual
punishment. Since those early conceptual stages,
beginning with the first draft of SB 450, the
Legislature has only considered application of the
death penalty sanction to criminals who murdered
under "special circumstances."
The argument was that the death penalty should be
reserved for the most serious of offenses.
Trivializing it or applying it to general crimes
could cause a diminution of its deterrent effect as
well as subject it to constitutional challenge for
failure to provide a "meaningful basis" for
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distinguishing between those who receive the
sentence and those who do not. (See Godfrey v.
Georgia (1980) 446 U.S. 420.)
b. Murder
Under existing law, murder is the unlawful killing
of a human being with malice aforethought. Without
malice, an unlawful killing is manslaughter. Murder
is classified as either first degree or second
degree. First degree murders are murders committed
by means of destructive devices, explosives, knowing
use of armor piercing bullets, lying in wait,
torture, or any other kind of willful , deliberate
and premeditated killing, or murders committed
during the commission of a list of enumerated
felonies (felony-murder). All other murders are
second degree murders (i.e., no premeditation or
deliberation).
Murder in the first degree is punishable by
imprisonment for twenty-five years to life unless
specified "special circumstances" are charged and
found to be true, then the punishment is either
death or life imprisonment without the possibility
of parole.
The list of special circumstances include: murder
for financial gain; the defendant was previously
convicted of murder; the defendant has been
convicted of more than one murder in the current
proceeding; murder committed by means of a
destructive devise concealed in a building; murder
committed to avoid a lawful arrest; the victim was a
peace officer, federal law enforcement officer,
firefighter, witness to a crime, prosecutor, judge,
elected official in retaliation for or to prevent
the victim from carrying out his/her duties; the
murder was unnecessarily torturous to the victim;
the victim was killed because of their color, race,
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nationality, religion or country of origin; the
felony was committed during the commission or
attempted commission of specified felonies; the
victim was poisoned.
In addition, SB 1878 (Kopp) Chapter 629, Statutes of
1998, which will be on the March 2000 ballot
provides that to prove the special circumstances of
kidnapping or arson, if there is a specific intent
to kill, it is only required that there be proof of
the elements of those felonies.
(1) Murder of a child under fourteen as a special
circumstance
This bill would make the first degree murder of a
child under the age of fourteen a special
circumstance which if charged and found to be
true would be punishable by death or confinement
in state prison for life without parole (LWOP).
California Attorneys for Criminal Justice (CACJ)
states that "in states where this special
circumstance has been adopted, for example in
Alabama, this has resulted in a dramatic increase
in the number of teenagers facing the death
penalty. Most often, where the victims are very
young, their killers are also very young. The
death penalty has even less deterrent effect on
this group than on older offenders and, because
of their young age, they are considerably more
susceptible to redemption than older offenders."
While Alabama's minimum age for execution is
sixteen and California's is eighteen, a juvenile
under eighteen charged with murder and charged as
an adult could receive (LWOP) if this special
circumstance were charged and proven to be true.
CACJ also notes that this special circumstance
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will also result in the death penalty being
applied in a large number of domestic violence
cases where the abusers were often abused
themselves.
does adding an additional special circumstance to
the death penalty statute make the statute
subject to constitutional challenges because it
fails to provide a meaningful basis for
distinguishing between those who receive the
sentence and those who do not?
WILL THIS SPECIAL CIRCUMSTANCE RESULT IN MORE
TEENAGERS SENTENCED TO DEATH OR LIFE WITHOUT
PAROLE?
WILL THIS SPECIAL CIRCUMSTANCE RESULT IN A LARGE
NUMBER OF DOMESTIC VIOLENCE RELATED DEATH PENALTY
CHARGES?
(2) Broad statutes may mean less effective death
penalty
Alex Kozinski a judge on the 9th U.S. Circuit
Court of Appeal and a proponent of the death
penalty argued in an editorial in the New York
Times that the expansion of crimes for which the
death penalty applies is a "self-defeating"
tactic. He notes that it is unlikely that the
backlog on death row will ever be taken care of
in part because there is not enough qualified
attorneys to handle the appeals. He also notes
that it is unlikely that the courts will be
willing to overturn years of jurisprudence on the
death penalty. Judge Kozinski suggests that:
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Instead of adopting a very expansive list of
crimes for which the death penalty is an
option, state legislatures should draft
narrow statutes that reserve the death
penalty for only the most heinous criminals.
(Kozinski and Gallagher, "For an Honest Death
Penalty", the New York Times, March 8, 1995,
Section A, page 21, Column 1.)
He recognizes that differentiating between
"depraved killers" is not easy however, he argues
that doing so will mean, "in a world of limited
resources . . . we will sentence to death only
those we intend to execute". He also believes it
will also ensure that only the worst of the very
bad will "suffer the death penalty."
does continued expansion of the death penalty
defeat its purpose since it merely adds more
persons to the backlog on death row but does not
ensure more executions?
(3) Arbitrary and capricious
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The Supreme Court "[i]n Furman v. Georgia , . . .
held that the penalty of death may not be imposed
under sentencing procedures that create a
substantial risk that the punishment will be
inflicted in an arbitrary and capricious manner.
Gregg v. Georgia , 428 U.S. 153, reaffirmed this
holding:
'Where discretion is afforded a sentencing body
on a matter so grave as the determination of
whether a human life, should be taken or spared,
that discretion must be suitably directed and
limited so as to minimize the risk of wholly
arbitrary and capricious action' 428 U.s., at 189
(opinion of STEWART, POWELL and STEVENS, JJ.).
( Godfrey v. Georgia , 446 U.S. 420, 427 (1979))
The American Civil Liberties Union (ACLU) points
out that unlike other special circumstances, the
one proposed in this bill applies solely on the
age of the victim regardless of the circumstance
of the murder. They assert that this is
fundamentally arbitrary because:
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A person could receive the death penalty for
killing a child who is thirteen years and
eleven months old while a special circumstance
would not apply to the killing of a child
fourteen years and one day old.
The ACLU notes that the other special
circumstances which are based upon the victim's
status such as a police officer are "arguably
related to the states compelling need to protect
these individuals in the performance of their
duties" and do not apply if the killing is when
they are off duty and not related to their
official duties.
is the application of a special circumstance
based SOLELY on the victim's age and not the
circumstances of the murder "arbitrary and
capricious"?
(4) Author believes that this special circumstance
is valid
(a) Author
The author states that the narrowing function
(adding children under fourteen) is valid since
it has been held to be valid in other states
that have this type of death eligible criteria.
He states that there are twelve states that
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make the intentional murder of a child under
fourteen years old a death-eligible factor and
one state makes the intentional murder of a
child under twelve years of age a
death-eligible factor.
According to the author: "to date, the Alabama
Criminal Court of Appeal, Delaware Superior
Court, and Pennsylvania Supreme Court have all
specifically upheld the intentional child
murder death qualifying factor and have done so
on the basis that an intent to kill is required
and that the law dating back to the Common Law
of England had always provided special
protections to minors under fourteen years old
under the laws of almost every state.
"These Courts have also rejected the notion
that the victim's age, i.e. status was an
irrational basis alluding to death sentences
upheld for persons intentionally killing
on-duty police officers."
(b) Opposition
CACJ disagrees with the author's statement
noting, as stated above, in order to be
constitutional a death penalty statute must
provide a "meaningful basis for distinguishing
the few cases in which [the death penalty] is
imposed from the many cases in which it is
not." "The requisite narrowing cannot be
achieved by elevating more second degree
murders to first degree, and then adding
matching special circumstances." (Although the
United States Supreme Court has found no
inherent constitutional infirmity with the dual
use of the same facts to both elevate a crime
to first degree murder and to constitute and
aggravating factor, its ruling came in the
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context of a death penalty scheme whereby the
constitutionally required narrowing function
was achieved by a restricted definition of
first degree murder. Lowenfield v. Phelps
(1988) 484 U.S. 231. California, in contrast,
employs a broad definition of first degree
murder and the requisite narrowing occurs by
use of the special circumstances. People v.
Bracigalupo (1993) 6 Cal. 4th 457, 468;
Tuilaepa v. California (1994) 512 U.S. 967.
Thus, the holding in Lowenfield in no way
insulates California's statute from
constitutional challenge.)
c. Most egregious child murders already covered
The opposition notes that most of the most egregious
circumstances when a child is murdered are already
covered by a special circumstance. For example "the
recent case of Mathew Cecchi, the 9-year old boy
murdered in Oceanside is a case-in-point. The
defendant in that case is already facing the death
penalty as a result of an existing special
circumstance. Most non-familial, non-gang related
or friend related murders of children would be
covered under lying in wait, violation of 288 or
288a, or the kidnapping special circumstances."
IS THE MOST EGREGIOUS CHILD MURDERS ALREADY COVERED
BY SPECIAL CIRCUMSTANCES SUCH AS LYING IN WAIT,
KIDNAPPING, OR 288 OR 288a VIOLATIONS?
d. Other opposition
CACJ notes that the 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
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as well as the federal government."
The Friends Committee on Legislation states that the
"inordinate cost of capital prosecutions and
appeals, together with the burdens that such cases
place on the courts, 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."
4. Adding Murder by Means of Kidnapping, Arson and Murder
of a Child under Fourteen
to First Degree Murder
a. Arson and Kidnapping
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According to the author: "It is an open legal
question whether under the degree fixing procedure
of section 189 whether an intentional killing that
is second degree murder becomes first degree murder
if it is perpetrated by means of committing a felony
set forth in the felony murder rule set forth in
189. The effect is that if a crime is murder
without resort to the felony murder rule, the fact
that it is committed by kidnapping or arson, does
that make it first degree . . . . This bill will
state that intentional killing perpetrated by means
of arson and kidnapping is murder in the first
degree."
The opposition questions the author's logic and
notes that "having kidnapping and arson appear twice
in section 189(a) particularly where the distinction
between the two references is not readily apparent,
renders the statute less, rather than more,
comprehensible."
SHOULD MURDER PERPETRATED BY MEANS OF KIDNAPPING OR
ARSON BE ADDED A SECOND TIME TO THE LIST OF "FELONY
MURDER" CRIMES IN SECTION 189?
WILL ADDING KIDNAPPING OR ARSON A SECOND TIME TO
SECTION 189 MAKE THE STATUTE MORE CONFUSING?
b. Murder of a Child under the Age of Fourteen
The author states that this bill "also elevates from
second degree murder to first degree murder where
the murderer intentionally kills the victim who was
under 14 years of age at the time of the murder, and
the murderer knows or reasonably should have known
that the victim is under 14 years of age."
The author asserts that this serves as the platform
for making this form of murder death eligible.
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As noted above, there must be a meaningful basis for
distinguishing between a first degree murder and a
first degree murder where the death sentence may be
imposed. With California's broad first degree
murder, it is not clear whether adding more to first
degree murder and to the list of special
circumstances allows for a meaningful distinction.
WILL ADDING MURDER OF A CHILD UNDER FOURTEEN YEARS
OF AGE TO BOTH FIRST DEGREE MURDER AND AS A SPECIAL
CIRCUMSTANCE CONSTITUTE A MEANINGFUL DISTINCTION
NECESSARY TO HAVE A VALID DEATH PENALTY STATUTE?
DOES THIS ADD TO THE BLURRING OF THE LINE BETWEEN
FIRST DEGREE MURDER AND FIRST DEGREE MURDER WITH A
SPECIAL CIRCUMSTANCE?
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