BILL ANALYSIS ABX1 27 Date of Hearing: May 17, 1994 Counsel: Paul M. Gerowitz ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bob Epple, Chair ABX1 27 (Speier) - As Amended: May 12, 1994 ISSUE: SHOULD AN UNINTENTIONAL KILLING DURING THE COMMISSION OF CHILD ABUSE BE MURDER, AS SPECIFIED? DIGEST Under current law: 1) A killing which is willful, deliberate, and premeditated is murder in the first degree. (Penal Code section 189.) 2) A killing which is not willful, deliberate, or premeditated is also first degree murder if it happens during the commission or attempted commission of arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or specified sex offenses. (Penal Code section 189.) 3) First degree murder is punishable by 25 years to life, life without possibility of parole, or death. Second degree murder is punishable by 15 years to life. (Penal Code section 190.) 4) A willful killing which is not deliberate or premeditated, is second degree murder, punishable by 15 years to life in state prison. (Penal Code sections 189 and 190.) 5) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits that person or health of that child to be injured, or willfully causes or permits that child to be placed in such a situation that its person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. (Penal Code section 273a, subdivision (a), paragraph (1).) 6) Any person convicted of child abuse, as described above, who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or injury that results in death, or having the care or custody of any child, under circumstances likely to produce great bodily harm or death, willfully causes or permits that child to be injured or harmed, and - continued - ABX1 27 Page 1 ABX1 27 that injury or harm results in death, is punishable by an additional four years in state prison. (Penal Code section 273a, šsubdivision (a), paragraph (2).) 7) A person who unintentionally kills a child, during the commission of a misdemeanor, including misdemeanor child abuse, or while acting without due caution, is guilty of involuntary manslaughter, punishable by two, three, or four years in state prison. (Penal Code sections 192 and 193.) This bill: 1) Provides that any person who, under circumstances manifesting indifference to human life, recklessly causes the death of a child or who, while having care or custody of a child and under circumstances or conditions likely to produce great bodily harm or death, recklessly permits the child to be injured or harmed, and that injury or harm results in the child's death, is guilty of second degree murder. 2) Provides that any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in such a situation that its person or health is endangered, and such action results in the death of the child, is guilty of second degree murder. COMMENTS 1) Purpose. According to the author: ABX1 27 would add reckless child abuse to the list of crimes which may serve as the basis for second degree felony murder. ABX1 27 would clarify the law and ensure that abusers who kill receive a sentence commensurate to their offense. 2) Intentional Killing. Historically, intentional homicides have been punished more harshly than unintentional homicides. Under current law, an intentional killing that is neither excused nor justified is either voluntary manslaughter or murder. Voluntary manslaughter is punishable by three, six, or 11 years in state prison, while murder carries at least a life sentence. Involuntary manslaughter, a form of unintentional, unlawful homicide, is punishable by two, three, or four years in state prison. This bill creates two new forms of second degree murder which may be proven without proving intent to kill. 3) Unintentional Killing and Felony Murder. One of the two forms of second degree murder created by this bill, is second degree murder based upon misdemeanor child abuse. Because some felonies are - continued - ABX1 27 Page 2 ABX1 27 considered particularly dangerous, the law allows a person who kills accidentally to be prosecuted for murder if the killing occurs during the commission of an enumerated felony, or a felony inherently dangerous to human life. This rule has been frequently criticized by scholars and jurists, including Oliver Wendell Holmes. The criticism has been summarized as follows: The rationale of the doctrine is that one who commits a felony is a bad person with a bad state of mind, and he has bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended. Yet it is a general principle of criminal law that one is not ordinarily criminally liable for bad results which differ greatly from intended results. (Criminal Law, LaFave.) 4) Felony Murder - Other States. According to materials supplied by the author's office, approximately 10 states currently have statutes providing that a killing during the commission of felony child abuse is first degree murder. It is unclear what the elements are, of these offenses in other states, and how closely they resemble the elements of felony child abuse in California. Apparently, in Mississippi, a parent who hits his or her child, and accidentally causes that child's death, is eligible for the death penalty. On the other hand, approximately 40 states do not have felony murder for child abuse. 5) Unintentional Killing - Other Provisions - This Bill. Under this bill, besides the felony murder theory, a person may be convicted of second degree murder if he or she reckless causes the death of a child under circumstances manifesting indifference to life, or recklessly permits the child to be injured under circumstances likely to produce great bodily harm or death and the injury results in death. 6) Recklessness Defined. Under this bill, a person who reckless kills, or recklessly injures a child can be convicted of murder. Few offenses in the Penal Code allow for conviction based upon a mental state of "recklessness" which is therefor undefined in the Penal Code. However, there are jury instructions listed in California Jury Instruction - Criminal (CALJIC), which may be adaptable to the present bill if it becomes law. a) Special Circumstances. For purposes of the murder special circumstances law, "reckless indifference" is defined as follows: "A defendant acts with reckless indifference to human life when such defendant knew or was aware that his! her! acts involved an š extreme likelihood that such acts could result in the death of an innocent human being." (CALJIC 8.80.1.) - continued - ABX1 27 Page 3 ABX1 27 It should be noted that the current bill does not require "reckless indifference to human life" but a "reckless" act "under circumstances manifesting indifference to human life", or "under circumstances likely to produce great bodily harm or death." Will CALJIC 8.80.1 be applicable in all cases prosecuted under this bill? b) Unlawful Fire Setting. For purposes of the statute prohibiting reckless fire-setting, the relevant mental state is described as follows (somewhat paraphrased): "The person who did the act in question! was aware of a substantial š and unjustified risk. The risk was of such a nature and degree that it would be a gross deviation from the standard of conduct that a šreasonable person would observe in the same situation. Such a person šconsciously disregarded the risk." (CALJIC 14.82.) Should not this bill be amended to contain an appropriately fashioned definition of recklessness? 7) Unintentional Killing - Other Provisions - Current Law. Under current law a child abuser, who unintentionally kills his or her victim, may be also convicted of for second degree murder under at least two possible legal theories. a) Torture Murder. Under current law, a person who causes the death of another by torturing that person, is guilty of first degree murder, without the necessity of proving intent to kill or malice. Torture is defined as the intentional infliction of severe pain for a sadistic purpose. b) Second Degree Murder - Implied Malice. A successful prosecution for a charge of murder, if the charge is not based on a felony- murder, or torture-murder theory, requires proof of malice. Malice may be express or implied. It is express when there is an actual intent to kill, without justification, excuse, or specified forms of mitigation. Malice is implied when the circumstances surrounding the killing show that the killer had an abandoned and malignant heart. To prove this, the prosecution has to show that the killer knew that his or her actions created a risk of death. Though this is a subjective test, a conviction would not be precluded by the fact that the defendant testifies that he or she did not know that the abusive behavior could cause the death of the child. The jury may determine, from the evidence, what the defendant "knew" about the risk of harm to the child. Indeed, under current law, child abusers are successfully prosecuted for second degree murder. How does the subjective risk of harm which defines "implied malice" differ from the subjective risk of harm which defines - continued - ABX1 27 Page 4 ABX1 27 "recklessness", as required by this bill? Will appellate litigation be required to resolve this question? If they are indistinguishable, what is the need for this bill? 8) Legislative History. In recent years there has been quite a bit of activity in this area of the law. a) SB 14 (Lockyer). This bill was introduced on December 3, 1990. It would have created the new crime of cruel or inhuman corporal punishment or injury which results in the death of a child, punishable by three, six, or 11 years in state prison. The bill was supported by the Los Angeles District Attorney's Office, the California District Attorneys' Association (CDAA), and other law enforcement groups. Received no negative votes in either house, or any committee. All current members of the Public Safety Committee, who were on the committee then, voted for the bill when it was before the committee when it was heard on June 23, 1992. The author of ABX1 27 voted for the bill on the Assembly floor. It was signed by then Governor Deukmejian on September 26, but did not become law due to having been šdouble-joined with SB 25 (Lockyer). b) SB 935 (Lockyer). This bill was introduced on March 4, 1993. Like SB 14, before it, it would have created the new crime of cruel or inhuman corporal punishment or injury which results in the death of a child. However, instead of an upper term of 11 years, SB 935 carried a maximum sentence of nine years in state prison. The bill was supported by the Los Angeles District Attorney's Office, but not by CDAA. Like its predecessor, it received no negative votes in either house, or any committee, and the author of ABX1 27 voted for the bill on the Assembly floor. It was vetoed by Governor Wilson on October 11, 1993. c) SB 935 - Veto Message. In his veto message, Governor Wilson stated that CDAA was concerned that jurors would be given a choice between second degree murder and the newly created child homicide. Prosecutors feared that, given the choice, jurors would choose the lesser offense, thereby depriving prosecutors of second degree murder convictions. c) AB 897 (Costa). This bill was introduced on March 1, 1993. It created a four-year enhancement for felony child abuse resulting in death. The result of the enhancement is to create a maximum sentence of 10 years for the unintentional killing of a child during the commission of felony child abuse - a penalty halfway between that in SB 14 and that in SB 935. It was supported by the Los County District Attorney's Office, and like the two Lockyer bills, AB 897 received no negative votes. It was signed into law be Governor Wilson on October 11, 1993, the same date SB 935 was vetoed. 9) Christian Science. The Christian Scientists are a religious group. - continued - ABX1 27 Page 5 ABX1 27 Among the tenets of the group is the belief that physical illness can and should be treated spiritually rather than medically. Members of the faith have expressed concerns about the bill. They fear that a person who acts sincerely and in good faith, to assist a child with medical or health care needs, might be subjected to life in prison if the child dies, should this bill pass. 10) Christian Science Amendment. The author of this bill has amended it to contain an amendment to the evidence code. This provision would allow a Christian Scientist charged under this bill to have an evidentiary hearing as to the weight and relevance of evidence relating to the defendant's religious beliefs and practices. This provision creates a vehicle for the offering of such evidence, but gives little guidance as to what would make such evidence either admissible or inadmissible, other that its relevance, or lack thereof. Since, under current law, all relevant evidence is admissible, unless it is more prejudicial than probative, and no irrelevant evidence is admissible, the actual effect of this recent amendment is unclear. Additionally, representatives of the Christian Scientists have informed committee staff that the amendment does not alleviate their concerns. 11) Walker v. Superior Court. In 1988 the California Supreme Court, in a unanimous decision authored by Stanley Mosk, held that the state could prosecute for manslaughter a Christian Scientist mother who had treated šher child with prayer, only to have that child die of meningitis. The šcourt noted that the state has an indisputably grave interest in šprotecting its children. While it agreed with the mother, and her church, š that prosecution interfered with their religious practices, the court šnoted that Christian Scientists are not compelled to treat illness with šprayer, nor are they punished for seeking medical treatment instead of šprayer. Justice Mosk analyzed the balance as follows: "Imposition of felony liability for endangering or killing an ill child by failing to provide medical care furthers an interest of unparalleled significance: the protection of the very lives of California's children, upon whose healthy, well-rounded growth into maturity as citizens our democratic society rests, for its continuance. Balanced against this interest is a religious infringement of significant dimensions. Defendant unquestionably relied on prayer treatment as an article of genuine faith, the restriction of which would seriously impinge on the practice of her religion. We note, however, that resort to medicine does not constitute 'sin' for a Christian Scientist, does not subject a church member to stigmatization, does not result in divine retribution, and, according to the Church's amicus curiae brief, is not a matter of church compulsion. Regardless of the severity of the religious imposition, the governmental interest is plainly adequate to justify its restrictive effect." (Walker v. Superior Court (1988) 47 Cal.3d 112, at 139, citations omitted, emphasis added.) - continued - ABX1 27 Page 6 ABX1 27 12) Effect With Other Bills. If AB 136 (Quackenbush) and/or AB 560 (Peace) become law, persons as young as 14, who charged with murder, will be presumed unfit to be tried in juvenile court. Instead, they will be tried in adult court, and sentenced to adult sentences. If ABX1 27 passes, the following scenario will be quite possible: An unwed, uneducated, inexperienced, 14 year-old mother accidentally injures her newborn child. The injury results in death. The 14 year- old is convicted of second degree murder and sentenced to a term of 15-to-life. With the limitations on worktime credits proposed by other bills, including but not limited to AB 1568 (Rainey), she would not be eligible for parole until almost 30 years old. Even without the reduction in age to 14, for adult prosecution, the same result could occur with 16 or 17 year old mothers. 13) Proportionality. Under existing law, unchanged by this bill, a person who "willfully" injures a child, "under circumstances likely to produce great bodily harm or death," is punishable by a maximum of 10 years in state prison if the injury results in death. Under this bill, a person who "recklessly" injures a child, "under circumstances or conditions likely to produce great bodily harm or death", is punishable by 15 years to life in prison if the injury results in death. Thus a reckless act will be punishable by a significantly longer sentence than an intentional one, when in all other relevant respects they are identical. Is this appropriate? 14) Governor's Crime Package. Governor Wilson has announced that ABX1 27 is part of his "package" of crime bills for 1994. SOURCE: Governor's Office of Criminal Justice Planning SUPPORT: California Union of Safety Employees California Peace officers' Association California Police Chiefs' Association Doris Tate Crime Victims Bureau California Correctional Peace Officers Association California Crime Victims Legal Clinic ICAN Associates for Abused Children State Advisory Group on Juvenile Justice and Delinquency Prevention OPPOSITION: American Civil Liberties Union California Attorneys for Criminal Justice - continued - ABX1 27 Page 7