BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Milton Marks, Chair S
1995-96 Regular Session B
3
2
SB 32 (Peace)
As proposed to be amended
Hearing date: March 7, 1995
Penal Code
MLK:js
MURDER: SPECIAL CIRCUMSTANCE
HISTORY
Source:Author
Prior Legislation: SB 1311 (Presley 1994) held in Public Safety
Support: Unknown
Opposition: Friends Committee on Legislation of California; ACLU;
California Attorneys for Criminal Justice; California Public
Defender's Association
KEY ISSUES
SHOULD MURDER DURING THE COMMISSION OF A CARJACKING BE A CAPITAL
OFFENSE?
SHOULD MURDER DURING THE COMMISSION OF A KIDNAP-CARJACKING BE A
CAPITAL OFFENSE?
SHOULD THE MURDER OF A JUROR IN RETALIATION FOR OR TO STOP THEM
FROM PERFORMING THEIR OFFICIAL DUTIES BE A CAPITAL OFFENSE?
SHOULD THE INTENTIONAL MURDER OF ONE PERSON AND THE ATTEMPTED
MURDER OF ANOTHER PERSON BE A CAPITAL OFFENSE?
SHOULD THE MURDER OF ONE PERSON WHILE KNOWINGLY CREATING A HIGH
PROBABILITY OF RISK OF DEATH TO MORE THAN TWO OTHERS BE A CAPITAL
OFFENSE?
PURPOSE
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)
Under existing law, a murder committed during the commission or
attempted commission of a carjacking is first degree murder
punishable by confinement in the state prison for a term of 25
years to life. (Penal Code Section 190)
Under existing law, a murder committed during a robbery, is a
special circumstance which if charged and found to be true is
punishable by death or confinement in the state prison for life
without parole. (Penal Code Section 190.2)
This bill would make a murder committed during the commission or
attempted commission of a carjacking 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.
Under existing law a person convicted of a kidnapping in
commission of a carjacking shall be punished by life without the
possibility of parole. (Penal Code 209.5)
This bill would make a murder occurring during a kidnapping in
the commission of a carjacking punishable by death or life
without he possibility of parole.
Under existing law, the intentional killing of one victim along
with the attempt to kill another victim would be either first or
second degree murder (depending on the circumstances of the
murder) and attempted murder. This is punishable by 15 years to
life if the murder is in the second degree or 25 years to life,
death or life with out parole if the murder is in the first degree
plus either life with parole, if the attempt was willful
deliberate or premeditated murder, or 5, 7 or 9 years if the
attempt was for any other murder. (Penal Code Sections 190, 664)
This bill would make the intentional killing of the victim and
attempt, with malice aforethought, to kill more than one person at
the time of committing the murder a special circumstance which if
charged and found to be true would result in the sentence of
either death or life with out parole.
Under existing law the murder of one person is either first or
second degree murder, even if the murder occurred where there was
a high probability of risk to others.
This bill would make the murder of one victim which knowingly
created a high probability of risk to at least two others a crime
punishable by death or life without parole.
This bill would make the murder of a juror in any court for
retaliation for or to prevent the performance of the victim's
official duties a special circumstance which if charged and proven
would be punishable by either death or life without parole.
The purpose of this bill is to add five special circumstances to
the enumerated list of when the sentence for first degree murder
shall be death or life without the possibility of parole.
COMMENTS
1. Need for the bill.
The author asserts that the addition to the list of special
circumstances of carjacking and kidnap-carjacking are merely
"clean-up" provisions since a carjacking is essentially a robbery
and robbery is already a special circumstance and kidnapping is
also a special circumstance.
The author asserts that since the current death penalty law covers
retaliatory killings against witnesses and judges but does not
cover jurors "[i]t is obvious that given the central role that
jurors play in the administration of justice, killing a juror
because of his or her official actions is just as much an outrage
as killing a judge or a witness."
The author asserts that the addition to the list of special
circumstances where the defendant intentionally killed one victim
but attempted to kill more than one and where the defendant
intentionally killed one victim but knowingly created a high
probability of death to more than two persons, are "designed to
apply to situations wherein the defendant intentionally killed a
victim under circumstances wherein the defendant either intended
at the time to kill more than one person or created a risk that a
number of persons would be in fact killed by his or her actions."
The author states that this would apply to more than just drive-by
shootings.
2. 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 25
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, nationality, religion or country of origin; the
felony was committed during the commission or attempted commission
of specified felonies; the victim was poisoned.
3. 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 distinguishing between those who
receive the sentence and those who do not (See " Godfrey v.
Georgia (1980) 446 U.S. 420).
4. Carjacking as a "special circumstance".
a. Felony -murder
Existing law, added by SB 60 (Presley) of 1993, makes
punishable as first degree felony-murder any murder which
is committed in the perpetration or attempted
perpetration of the offense of carjacking. ("Carjacking"
is the forcible taking of another person's motor
vehicle, from his or her or another person's possession
and immediate presence, and with the intent to either
permanently or temporarily deprive the person of
possession of the motor vehicle, accomplished by means of
force or fear.)
Under the felony-murder rule, the ordinary elements for
first degree murder --malice and premeditation -- are
eliminated. Instead, any killing, whether intentional or
unintentional, is deemed first degree murder if committed
during the perpetration or attempted perpetration of the
specified felony. The purpose of the rule, generally
stated, is to deter the commission of specified
inherently dangerous felonies by punishing any accidental
or unintentional killing during the offense just as if
the offender had committed the murder with malice and
premeditation.
This bill would make a first degree felony-murder
carjacking offense subject to the death penalty.
b. Need for the bill.
The author asserts that since a murder during the course
of a robbery is a first degree felony-murder, and because
first degree felony-murder robbery is a special
circumstance, then carjacking "...which in many respects
is simply the robbery of a vehicle", should also be a
special circumstance.
c. Opposition
California Attorneys for Criminal Justice assert that
there is no need to add carjacking to the list of crimes
in Penal Code Section 190.2 with essentially the same
argument the author uses to say it should be included.
"Any carjacking is also a robbery already included in
that list. Thus a defendant who commits first degree
murder in the course of committing or attempting to
commit a carjacking is already subject to the death
penalty."
Opponents also argue that by continuously adding more
felonies to the list of special circumstances the
distinction required in Godfrey is blurred and the risk
that the statute will be invalidated becomes greater.
IF THE DEATH PENALTY CAN ALREADY BE OBTAINED FOR MURDERS
OCCURRING DURING A CARJACK WHERE THE DEFENDANT IS CHARGED
WITH ROBBERY, IS IT NECESSARY TO ADD ANOTHER SPECIAL
CIRCUMSTANCE TO THE STATUTE?
DOES THE ADDITION OF ANOTHER FELONY TO THE FELONY-MURDER
LIST DETRACT FROM THE "MEANINGFUL BASIS" FOR
DISTINGUISHING A SPECIAL CIRCUMSTANCE MURDER FROM OTHER
FIRST DEGREE MURDERS?
5. Kidnap-carjack as a special circumstance.
This bill would make first degree felony-murder committed during a
kidnapping during the commission or attempted commission of a
carjacking a special circumstance punishable by the death penalty.
The author asserts that since kidnapping is a special circumstance
then kidnapping during a carjacking should also be a special
circumstance.
However, kidnapping during carjacking is a separate felony from
kidnapping and thus opponents assert that by adding more crimes to
the list of special circumstances the distinction required in
Godfrey is blurred and the risk that the statute will be
invalidated becomes greater.
IF THE DEATH PENALTY CAN ALREADY BE OBTAINED FOR MURDERS OCCURRING
DURING A KIDNAPPING DURING THE COMMISSION OF CARJACKING BECAUSE
BOTH ROBBERY AND KIDNAPPING ARE SPECIAL CIRCUMSTANCES, IS IT
NECESSARY TO ADD ANOTHER SPECIAL CIRCUMSTANCE TO THE STATUTE?
DOES THE ADDITION OF ANOTHER FELONY TO THE FELONY-MURDER LIST
DETRACT FROM THE "MEANINGFUL BASIS" FOR DISTINGUISHING A SPECIAL
CIRCUMSTANCE MURDER FROM OTHER FIRST DEGREE MURDERS?
6. Victim is juror as a special circumstance.
Under existing law a murder where the victim is a witness to a
crime, a prosecutor, or a judge and the murder was committed in
retaliation for or to interfere with the victim carrying out
his/her official duties is an offense punishable by death or life
without parole.
This bill would make the murder of a juror in retaliation for or
to interfere with the victim carrying out his or her official
duties an offense punishable by death or life without parole.
The author asserts that since jurors are important to the justice
system the murder of a juror due to their capacity as a juror
should be a death penalty offense.
7. Murder of one victim and attempt to murder another as a
special circumstance.
Under existing law the murder of more than one person in the same
incident is a death penalty offense.
This bill would make the murder of one person and the attempt,
with malice aforethought, to murder another a capital offense.
This thus expands the death penalty greatly by allowing the death
penalty for a single murder which would not otherwise be
punishable by death.
a. Author's stated need for legislation.
The author asserts that the murder of one person with the
attempt, with malice aforethought to kill another person,
is necessary to cover random and intentional killings
where a number of victims are intended. He asserts that
this would include drive-by shootings but also cover more
situations.
b. Opposition.
The ACLU states that "the broader the cases that are
eligible for the death as a punishment, the greater the
risk that the death penalty will be applied in an
arbitrary and unconstitutional manner."
SHOULD NOT A DISTINCTION BE MADE BETWEEN TWO MURDERS AND
ONE MURDER AND ONE ATTEMPTED MURDER? DOES A FAILURE TO
MAKE THIS DISTINCTION RUN THE RISK OF VIOLATING THE
"MEANINGFUL" BASIS REQUIREMENT AND THUS PUT THE ENTIRE
DEATH PENALTY STATUTE IN JEOPARDY?
8. The murder of one person with a "high probability" of death to
others as a special circumstance.
This bill would make intentionally killing a victim and knowingly
creating a high probability of death to more than two persons,
other than the principal in the murder, a death penalty offense.
a. Author's stated need.
The author asserts that section is needed to cover
situations where the defendant created a risk that a
number of persons would have been killed by his or her
actions.
b. High probability.
Under this statute someone who kills one person and in
doing so knowingly creates a "high probability" to
others, could be sentenced to the death penalty. It is
unclear what would constitute a high probability.
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))
Would this vague standard lead to great discretion by the
prosecutor and court as to when a murder would be second
degree and when it would be first degree with special
circumstances thus allowing the imposition of the death
penalty?
c. Opposition.
California Attorneys for Criminal Justice assert that
this section would apply to a broad range of homicides
and that "[t]his will leave it open to prosecutors to
choose which of these potentially numerous crimes are to
be prosecuted as capital cases-- a decision which may be
made differently by different counties. This lack of
uniformity will almost certainly lead to constitutional
challenges that will tie the law up in the courts for
many years."
The ACLU also assert that the vagueness of the term "high
probability of death" increase the risk that the death
penalty will be applied in an arbitrary and
unconstitutional manner.
DOES THE USE OF THE BROAD STANDARD "HIGH PROBABILITY OF
DEATH TO MORE THAN TWO PERSONS" ALLOW FOR THE ARBITRARY
APPLICATION OF THE DEATH PENALTY AND INCREASE THE
LIKELIHOOD THAT THE DEATH PENALTY STATUTE WILL BE FOUND
UNCONSTITUTIONAL UNDER FURMAN AND GODFREY?
9. Opposition arguments.
The ACLU states that it "opposes the death penalty in all
circumstances as a violation of the Constitution because it denies
equal protection of the laws, is cruel and unusual punishment, and
removes guarantees of due process of law. The death penalty
offers society no greater protection than the alternative of life
in prison without the possibility of parole."
The Friends Committee on Legislation points out "that Justice
Harry Blackmun, who for more than 20 years voted to enforce the
death penalty in numerous U.S. Supreme Court cases, stated that he
will never do so again. He believed that the 'death penalty
experiment has failed,' because it wrongfully kills some
defendant, and permits the issue of race to determine who lives or
dies." They further state that every responsible study has shown
that the death penalty is not a deterrent.
California Attorneys for Criminal Justice believes "that the
expansion of the death penalty is neither necessary or good
policy." They point out that there are nearly 2,000 people on
death row nationwide and that California alone has nearly 400
people on death row.
The California Public Defenders Association also uniformly opposed
the expansion of the death penalty. They point out that the
California Supreme Court, "appointed by governors supportive of
the death penalty has warned about the risk of statutorily
expanding the special circumstance list to a point where they will
be forced to find the death penalty unconstitutional."
10. Will be on the ballot.
Because this bill affects an initiative statute, if it passes the
Legislature, it will be placed on the ballot.
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