BILL ANALYSIS Ó
AB 898
Page A
Date of Hearing: January 12, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
898 (Gonzalez) - As Amended January 4, 2016
SUMMARY: Provides that when an inmate who was convicted of the
murder of a firefighter becomes eligible for a
parole-suitability hearing, the Board of Parole Hearings (BPH)
must give written notice of the hearing to the department that
had employed the deceased firefighter. Specifically, this bill:
1)Adds a murdered firefighter's former fire department employer
to the list of persons that the BPH must notify of a
parole-suitability hearing.
2)Makes technical, non-substantive changes.
EXISTING LAW:
1)Requires the BPH to send written notice to each of the
following persons before it meets to consider the parole
suitability or setting of a parole date of an inmate serving a
life sentence:
a) The superior court judge before whom the prisoner was
tried and convicted;
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b) The attorney who represented the defendant at trial;
c) The district attorney of the county in which the offense
was committed;
d) The law enforcement agency that investigated the case;
and,
e) If the prisoner was convicted of the murder of a peace
officer, the law enforcement agency which had employed that
officer at the time of the murder. (Pen. Code, § 3042,
subd. (a).)
2)Provides that these entities must be notified at least 30 days
before the BPH meets to review or consider the parole
suitability or the setting of a parole date. (Pen. Code, §
3042, subd. (a).)
3)Allows the entities who receive notice of the
parole-suitability hearing to submit information to the BPH
for its consideration. (Pen. Code, § 3042, subd. (f)(3).)
4)Requires the BPH to review and consider all information
received from the judge and these other persons, and to
consider adjusting the terms or conditions of parole to
reflect the comments or concerns raised by this information.
(Pen. Code, § 3042, subd. (f)(3).)
5)Requires the BPH to provide the victim 90-days' notice of an
upcoming parole-suitability hearing, if he or she requests
that notice be given. (Pen. Code, § 3043, subd. (a).)
6)Allows the victim to personally appear at the suitability
hearing or to submit a recorded statement expressing his or
her views. (Pen. Code, §§ 3043, subd. (b)(1), and 3043.2,
subd. (a)(1).)
7)States that any person interested in the grant or denial of
parole may submit a statement supporting or opposing parole
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and that such statements must be considered by the hearing
panel. (Pen. Code, § 3043.5.)
8)Requires the Director of the California Department of
Corrections and Rehabilitation to give written notice to the
State Fire Marshal, and all police departments and the sheriff
in the county in which the person was convicted before
releasing an inmate convicted of arson. (Pen. Code, § 11150.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 898 will
ensure that a murdered firefighter's former employer is
included in the notification process administered by the Board
of Parole Hearings, which is already in place for the former
employer of a murdered peace officer.
"Firefighters are a vital part of our public safety community in
California since they constantly risk their lives in order to
ensure the safety of others. They face similar stress and risk
just like their law enforcement colleagues face while on-duty,
which can result in loss of life. Moreover, parts of
California are often under a state of emergency and thousands
of people have been forced to evacuate their homes as fire
crews struggle to contain deadly wildfires, some caused by
malicious human intention.
"Under California law, arson is defined as the 'willful and
malicious burning of property' and is often charged as a
felony crime as a result of its destructive and deadly nature.
According to the California Department of Justice, 37,128
arson crimes were reported from 2010 to 2014 in California.
Arson isn't a victimless crime since it can take the lives of
people and our firefighters.
"It is only appropriate that in these limited instances, a
former employing fire department be extended the same
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notification courtesy as local law enforcement agencies when
dealing with the possible parole of a prisoner convicted of
murdering a firefighter. The notification requirement
proposed by AB 898 will provide an appropriate opportunity for
the fire department to reflect on the actions of the
individual and voice their opinion about a prisoner remaining
behind bars or being released back into their community."
2)Parole-Suitability Hearings: Inmates serving indeterminate
"life" sentences that include the possibility of parole are
not automatically entitled to parole, but are entitled to be
considered for parole at a parole-suitability hearing. The
BPH has exclusive authority to determinate parole suitability,
and suitability for parole must first be found before a parole
date is set. (In re Dannenberg (2005) 34 Cal.4th 1061, 1080.)
The BPH can consider all relevant and reliable information,
but there are suitability factors specified by both statute
and administrative regulations. (15 Cal. Code Regs., § 2402,
subd. (b).) These include: the nature of the commitment
offense and inmate's degree of insight into the offense, the
inmate's prison record, recent psychological evaluations, and
the inmate's parole plans. The overriding concern is whether
the inmate poses a current threat to public safety. (In re
Dannenberg, supra, 34 Cal.4th at p. 1084.) The BPH has broad
discretion in how to weigh these factors, and its
determination that an inmate is unsuitable will be upheld as
long as it is supported by "some evidence." (In re Lawrence
(2008) 44 Cal.4th 1181, 1213.)
The BPH must send notice of a parole-suitability hearing to
the trial judge, the prosecutor, defense counsel, the
investigating law enforcement agency, and in the case of the
murder of a peace officer, the officer's employer. (Pen.
Code, § 3042, subd. (a).) These individuals are entitled to
submit a statement expressing their views on whether the
inmate should be paroled. Additionally, the victim of the
crime may request that the BPH notify him or her of any
scheduled parole-suitability hearing. The victim is entitled
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to personally appear to express his or her views on the
granting of parole, or may submit a written or recorded
statement instead. (Pen. Code, § 3043.) Finally, any person
interested in the grant or denial of parole may submit a
statement supporting or opposing parole. (Pen. Code, §
3043.5.) The board must consider all statements submitted in
making its decision.
While under existing law the employer of a murdered
firefighter may already submit a statement expressing its
views on the grant of parole, this bill will ensure that the
agency which employed the deceased firefighter has notice that
a parole-suitability hearing has been scheduled.
3)Murder of a Firefighter: Murder is the unlawful killing of a
person with malice. There are two degrees of murder. First
degree murder is premeditated murder, or murder committed in
the course of specified felonies including arson (first degree
felony murder), or murder committed by certain specified
methods (including the use of a destructive device or
explosive).<1> (Pen. Code, § 189.) Second degree murder is
non-premeditated murder, or murder committed in the course of
felonies not listed in Penal Code section 189 but which are
inherently dangerous to human life. (Ibid.)
Murder which occurs during the commission of a felony is known
as felony murder. The primary purpose of the felony-murder
rule is to deter felons from killing negligently or
accidentally by holding them strictly liable for the killings
they commit when they commit a felony. (People v. Billa
---------------------------
<1> Murder committed by specified means can be not just a theory
of first degree murder, but also a special circumstance under
Penal Code section 190.2 which increases the punishment from 25
years to life to life without parole or death. If the death
penalty or a sentence of life without parole is imposed, a
defendant would not be eligible for a parole-consideration
hearing, and the provisions of this bill would not apply.
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(2003) 31 Cal.4th 1064, 1069.)
The mental state required for first degree felony murder is
simply the specific intent to commit the underlying felony.
There does not need to be an intent to kill. There is no
requirement of a strict "causal" or "temporal" relationship
between the felony and the murder. All that is required is
that the two "are parts of one continuous transaction." There
is, however, a requirement of proof beyond a reasonable doubt
of the underlying felony. (People v. Berryman (1993) 6
Cal.4th 1048, 1085.) Felony murder applies even if the felony
itself is not occurring or has been abandoned when the
homicide takes place, so long as the homicide is related to
the felony and resulted as a natural and probable consequence
of the felony. (People v. Birden (1986) 179 Cal.App.3d 1020,
1024-1025.) Thus, if a firefighter dies while extinguishing a
fire proven to be arson, the defendant can be convicted of
first degree felony murder.
For a second degree felony murder conviction, the death must
occur during the commission of felonies that are "inherently
dangerous to human life." (People v. Hansen (1994) 9 Cal.4th
300, 308.) An inherently dangerous felony is one which, "by
its very nature" "cannot be committed without creating a
substantial risk that someone will be killed." (People v.
Burroughs (1984) 35 Cal.3d 824, 833.) Also, an inherently
dangerous felony is one carrying a high probability that death
will result. (People v. Patterson (1989) 49 Cal.3d 615, 627.)
"In determining whether a felony is inherently dangerous, the
court looks to the elements of the felony in the abstract, not
the particular facts of the case, i.e., not to the defendant's
specific conduct." (Ibid.) The judge, not the jury, decides
if a felony is inherently dangerous to life. (People v.
Schaefer (2004) 118 Cal.App.4th 893, 899-902.) Among the
felonies which have been found to be inherently dangerous to
human life are burning a motor vehicle, in light of the danger
of gasoline explosion (People v. Nichols (1970) 3 Cal.3d 150,
162-163); manufacturing methamphetamine, in light of the
danger of explosion of volatile chemicals used in the
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manufacturing process (People v. James (1998) 62 Cal.App.4th
244, 257-271); and reckless and malicious possession of a
destructive device or explosive (People v. Morse (1992) 2
Cal.App.4th 620, 644-646). As with first degree felony
murder, second degree felony murder requires proof of the
specific intent to commit the underlying felony, even if the
underlying felony is a general intent crime. (People v. Jones
(2000) 82 Cal.App.4th 663, 667-668.) Under these examples, a
criminal defendant might be convicted of second degree murder
of a firefighter who dies as a result of trying to extinguish
the explosion.
4)Argument in Support: The California Professional
Firefighters, a co-sponsor of this bill, state, "This bill
would simply provide a courtesy notification to the fire
department of record where the instance of the original
criminal conviction was the murder of a firefighter.
Firefighters who survive and remain on duty after the tragic
murder of one of their own, often stand in the shoes of the
deceased firefighter and will serve the surviving family as a
surrogate brother, sister, father or mother. As such, being
given the opportunity to learn of a related parole hearing
will provide appropriate notice to that firefighting family to
participate with the victims and stand with the survivors.
This can be particularly helpful in instances where the victim
impact statement is submitted, which includes not only the
physical, financial, emotional and spiritual effects of a
crime, but also how a neighborhood or community has been
affected.
"Ultimately, the modest notification requirement proposed by AB
898 will provide an appropriate opportunity for the fire
department, together with the victim's family and the
surrounding community, to reflect on the actions of the
individual and voice their opinion about a prisoner remaining
behind bars or being released back into their community."
5)Prior Legislation: AB 1025 (Thurman), Chapter 483, Statutes
of 1981, provided that where a prisoner who is the subject of
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a parole-suitability hearing was convicted of the murder of a
peace officer, notice of the hearing must be given to the law
enforcement agency which had employed that peace officer at
the time of the murder.
REGISTERED SUPPORT / OPPOSITION:
Support
California Professional Firefighters (Co-Sponsor)
CAL Fire Local 2881 (Co-Sponsor)
California Fire Chiefs Association
California Labor Federation
California Special Districts Association
Fire Districts Association of California
Peace Officers Research Association of California
Opposition
None
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744