BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 878|
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THIRD READING
Bill No: SB 878
Author: Hayden (D)
Amended: As introduced
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-2, 4/13/99
AYES: Vasconcellos, Burton, Johnston, Polanco
NOES: McPherson, Rainey
SENATE APPROPRIATIONS COMMITTEE : 7-5, 5/10/99
AYES: Johnston, Alpert, Bowen, Burton, Escutia, Perata,
Vasconcellos
NOES: Johnson, Kelley, Leslie, McPherson, Mountjoy
NOT VOTING: Karnette
SUBJECT : Felony murder
SOURCE : Author
DIGEST : This bill provides 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.
ANALYSIS : Existing law 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
CONTINUED
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degree. All other kinds of murder are murder in the second
degree.
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.
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
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.
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.
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The felony-murder doctrine is often used as an alternative
theory to premeditated murder. 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. 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."
People v. Dillon
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." 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" 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." ( 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
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extract.
Codification of Dillon
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 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)
This bill essentially codifies a portion of Dillon by
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 1999-2000
2000-01 2001-02 Fund
Courts Unknown increased costs,
Special*
probably less than $150,000 annually,
for an increase in workload
*Trial Court Trust Fund
SUPPORT : (Verified 5/12/99)
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California Public Defenders Association
Los Angeles County Public Defender
California Attorneys for Criminal Justice
Concerned Families and Friends (organization)
OPPOSITION : (Verified 5/12/99)
Attorney General
Judicial Council of California
ARGUMENTS IN SUPPORT : 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 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
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proportionality to the felony-murder rule.
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."
ARGUMENTS IN OPPOSITION : The Attorney General's 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.
RJG:sl 5/12/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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