BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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SB 878 (Hayden)
As Introduced February 25, 1999
Hearing date: April 13, 1999
Penal Code
MK:jm
FELONY MURDER
HISTORY
Source: Author
Prior Legislation: None
Support: California Public Defenders Association; Los
Angeles County Public Defender; California
Attorneys for Criminal Justice; Concerned Families
and Friends (organization); more than 40
individuals
Opposition:Attorney General; Judicial Council of California
KEY ISSUE
WHEN A PERSON IS CONVICTED OF FIRST DEGREE FELONY MURDER, SHOULD THE COURT
DETERMINE, PRIOR TO IMPOSING THE SENTENCE, WHETHER THE IMPOSITION OF A
SENTENCE OF FIRST DEGREE MURDER IS PROPORTIONATE TO THE OFFENSE COMMITTED BY
THE DEFENDANT AND TO THE DEFENDANT'S CULPABILITY OF THE OFFENSE, BASED ON
SPECIFIED FACTORS?
PURPOSE
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The purpose of this bill is to provide that after a
conviction of first degree felony murder, the court shall
determine prior to imposing the sentence whether the
imposition of a sentence of first degree murder is
proportionate to the offense committed by the defendant and
to the defendant's culpability of the offense, based on
specified factors.
Existing law provides that any murder that is perpetrated
by specified means, including arson, rape, carjacking,
robbery, burglary, mayhem and kidnapping (felony murder) 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)
Existing law provides, generally, that the penalty for
first degree murder is 25 to life and the penalty for
second degree murder is 15 to life. (Penal Code section
190)
This bill provides that after a conviction of first degree
felony murder, the court shall determine whether the
imposition of a sentence of first degree murder is
proportionate to the offense committed by the defendant and
to the defendant's culpability in committing the offense.
If the court determines that a sentence of first-degree
murder would be disproportionate to the offense committed
by or the culpability of the defendant, the court shall
reduce the degree of the offense to second degree.
This bill states that the court shall state its reasons on
the record and shall consider the following factors in
making its determination:
The nature of the offense in the abstract and the
totality of the circumstances surrounding the commission
of the offense including the defendant's motive, the way
the crime was committed, the extent of the defendant's
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involvement, and consequences of the defendant's act.
The nature of the offender including the defendant's age,
prior criminal record, personal characteristics, and
state of mind.
COMMENTS
1. Need for the Bill
According to the author:
California's felony-murder rule violates a basic
notion in justice-criminal liability should not
exceed one's culpability.
Under the felony-murder rule, all involved in the
commission or attempted commission of certain
felonies face first-degree murder if a death
occurs during the course of the crime. Those who
played no role in the killing, like the getaway
driver in a robbery, are treated the same as the
killer. It makes no difference if the death was
accidental, unintentional or without planning.
The accepted notion behind the felony-murder rule
is that it deters felons from committing their
crimes in a reckless or violent way. It doesn't
take a legal scholar to ask the obvious question
this line of reasoning leads us to: how can an
unforeseen, or even accidental, death be deterred?
While the felony-murder rule is unfair as it holds
one person responsible for the unagreed upon and
unforeseen acts of another, it also flies in the
face of accepted standards of culpability because
it is categorized as first-degree murder without
having to show the defendant's state of mind. All
other first-degree murders require a showing of
premeditation, deliberation and a willfulness to
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kill.
This bill is a modest attempt to better balance
criminal liability and moral culpability in
relation to the felony-murder rule. It attempts
to bring proportionality to the felony-murder
rule.
2. Felony-Murder Rule
Under the 'felony-murder doctrine', a killing, whether
intentional or unintentional, is first degree murder if
committed in perpetration of, or an attempt to perpetrate,
certain serious felonies: arson, rape, robbery, burglary,
mayhem, kidnapping, specified sex offenses, or drive by
shooting.
The ordinary elements of first degree murder-malice
and premeditation-are eliminated by the doctrine. The
only criminal intent required is the specific intent
to commit the particular felony. Such a killing is
murder of the first degree by force of section 189 . .
. regardless of whether it was intentional or
accidental. [citations omitted] (1 Witkin and
Epstein California Criminal Law 2nd Edition Section
470)
The felony-murder doctrine is often used as an
alternative theory to premeditated murder. [citations
omitted] The doctrine is also frequently involved in
conspiracy cases; e.g., all members of a conspiracy to
commit robbery or burglary are guilty of murder if one
of them kills in the course of commission of the
crime. [citations omitted] And the doctrine may also
apply to cases in which the victim is not even the
object of the felony, or in which the killer is a
third person." (Id.)
3. People v. Dillon
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In People v. Dillon (1983) 34 Cal. 3d 441, a defendant
convicted of felony murder based on an attempted robbery
asked the court to abolish the felony-murder rule as the
Supreme Court had done in Michigan a few years earlier.
(see People v. Aaron (1980) 409 Mich. 672) In refusing do
so because of the statutory nature of the California
felony-murder rule, the Court nonetheless noted:
Defendant emphasizes the dubious origins of the
felony-murder doctrine, the many strictures
leveled against it over the years by courts and
scholars, and the legislative and judicial
limitations that have increasingly circumscribed
its operation. We do not disagree with these
criticisms; indeed, our opinions make it clear we
hold no brief for the felony-murder rule. We have
repeatedly stated that felony murder is a "highly
artificial concept," which "deserves no extension
beyond its required application." [citations
omitted] And we have recognized that the rule is
much censured "because it anachronistically
resurrects from a bygone age a 'barbaric' concept
that has been discarded in the place of its
origin" [citation omitted] and because "in almost
all cases in which it is applied it is
unnecessary" and "it erodes the relationship
between criminal liability and moral culpability."
[citations omitted] ( People v. Dillon Id. 34
Cal. 3d at 463)
The Court did, however, find that because one penalty was
available for premeditated murder and felony murder under
the circumstances, the penalty was cruel and unusual
punishment and reduced the sentence to 2nd degree murder.
In making the determination the court viewed the nature of
the offense, based on the actual facts of the case and the
nature of the offender, in the concrete rather than the
extract.
4. Codification of Dillon
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a) Rationale
According to the author:
Unfortunately, when trial and reviewing
courts have applied the Dillon model of
analysis, they have stuck to the letter, but
not the spirit of the case, making it
necessary for the state Legislature to act in
this matter.
For example, in People v Hernandez , the
defendant's first-degree murder conviction
was upheld when a victim,
sixty-seven-year-old Joseph Wolfe, died in
large part due to an existing medical
condition. The condition made him vulnerable
to high levels of psychological stress,
causing Mr. Wolfe to fall during the robbery,
fatally hitting his head. The appellate
court was perfunctory in applying the Dillon
proportionality analysis and upheld the
first-degree murder conviction.
Support letters and a news article from the author
also cited another example where the author and
support believe the trial court should have used the
Dillon analysis. In 1995, three young men received
sentences of life without parole and a fourth
received 25 years to life because he was a juvenile,
for the stabbing death of another young man in
Agoura Hills in Los Angeles County. The death
occurred after a fight over marijuana broke out
between the four defendants, the owner of the
marijuana and his friend who was the victim.
According to the news article, three of the young
men did not know that the fourth had stabbed the
victim until after they left the premises. The man
who did the stabbing did so in order to help his
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younger brother, who was being beaten up. The
author and the opposition believe this was a case
where the judge should have used the Dillon analysis
and imposed a lesser sentence. (See: Sullivan,
Randall. "Lynching in Malibu: A Tale of Fear,
Retribution and Injustice in the War against Youth."
Rolling Stone, September 4, 1997)
b) This bill
This bill essentially codifies a portion of Dillon
by requiring the court, in every case where a
defendant is convicted of felony murder, to
determine whether the imposition of the offense is
proportionate to the offense committed by the
defendant and the defendant's culpability in
committing the offense. The bill requires the court
to state its reasons on the record and to use
factors, taken from Dillon , to make its
determination. The factors are:
The nature of the offense in the abstract
and the totality of the circumstances surrounding
the commission of the offense including the
defendant's motive, the way the crime was
committed, the extent of the defendant's
involvement, and consequences of the defendant's
act.
The nature of the offender including the
defendant's age, prior criminal record, personal
characteristics, and state of mind.
The bill further provides that if the court
determines that a sentence of first degree murder
would be disproportionate to the offense committed
by the defendant or the defendant's culpability in
committing the offense, the court shall reduce the
degree of the offense to second degree.
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WHEN FELONY MURDER IS FOUND, SHOULD THE COURT BE
REQUIRED TO DETERMINE WHETHER THE SENTENCE IS
APPROPRIATE TO THE NATURE OF THE OFFENSE AND THE
NATURE OF THE OFFENDER?
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5. Support
The California Public Defenders Association "believes that
proportionality in sentencing is fundamental to a fair
criminal justice system. This measure is a commendable
effort to restore proportionality and to give courts some
discretion in sentencing. After all, only the trial court
is exposed to the evidence and the facts of each individual
case. As such, the trial court is in the best position to
determine the sentence that best fits the crime and the
circumstances under which it was committed."
6. Opposition
The Attorney General Office believes that:
If this bill were passed, the courts would be left
with the task of assigning a subjective view of
"culpability" based on the amorphous concept of
"proportionality." Since no two crimes and no two
defendants are exactly the same, it is difficult
to accord any set value on an individual's
culpability with any precision. Undoubtedly, the
net result of this legislation would be that
defendants convicted of first degree felony murder
would have their sentences reduced, not based on
constitutional necessity, but based instead on a
court's dislike of the felony murder rule.
As a practical matter, the bill would be also
difficult to implement in many cases. Frequently,
a defendant is convicted of first degree murder
based on more than one theory of culpability, e.g.
premeditation and deliberation and felony murder.
This bill offers no guidance to the court or
prosecutors about how the proportionality review
would be applied in such cases.
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