BILL ANALYSIS
SB 9
Date of Hearing: June 27, 1995
Counsel: David R. Shaw
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
SB 9 (Ayala) - As Amended: June 13, 1995
ISSUE: SHOULD FIRST DEGREE MURDER RESULTING FROM THE WILLFUL
DISCHARGE OF A FIREARM FROM A MOTOR VEHICLE AT A PERSON OR
PERSONS NOT ON OR INSIDE THAT MOTOR VEHICLE BE ADDED TO THE
LIST OF EXISTING SPECIAL CIRCUMSTANCES, THEREBY MAKING IT
PUNISHABLE BY DEATH OR LIFE IN STATE PRISON WITHOUT THE
POSSIBILITY OF PAROLE?
DIGEST
Under current law:
1) Murder is the unlawful killing of a human being or a fetus with
malice aforethought. Malice may be express or implied.
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 kinds of murder are second degree
murders. (Penal Code Section 187, et. seq.)
2) A murder perpetrated by means of discharging a firearm from a
motor vehicle, intentionally at another person outside the
vehicle, with the intent to inflict death, is murder of the
first degree. (Penal Code Section 189.) The punishment for
first degree murder without special circumstances is 25 years
to life. (Penal Code Sections 190 et. seq.)
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3) Penalties for a defendant found guilty of murder in the first
degree shall be death or confinement in the state prison for a
term of life without the possibility of parole when one or more
of 19 enumerated special circumstances has been charged and
found to be true by the trier of fact. (Penal Code Section
190.2.(a).)
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 killed 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.
4) Special circumstance felony-murders include murders that were
committed while the defendant was engaged in, or was an
accomplice to, the commission of, attempted commission of, or
the immediate flight after committing or attempting to commit
specified felonies, including robbery, kidnaping, rape, sodomy,
lewd or lascivious acts on a child under the age of 14, oral
copulation, burglary, arson, train wrecking, torture, the
intentional use of poison, mayhem, or rape by instrument.
(Penal Code Section 190.2.)
5) Every person, not the actual killer, who with the intent to
kill, aids, abets, counsels, commands, induces, solicits,
requests, or assists any person in the commission of murder
shall be punished by death or life without the possibility of
parole if the murder involved one of the 19 special
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circumstances. (Penal Code Section 190.2.)
This bill adds murder resulting from the knowing and willful
discharge of a firearm from a motor vehicle, at a person or
persons not on or inside that vehicle, to the list of special
circumstances when charged and found to be true will result in a
sentence of death or life without the possibility of parole.
COMMENTS
1) Purpose. According to the author:
In today's society, gang-related shootings have become
commonplace. Frequently, the victim is an unintended
target, such as a child, a productive high school student
with no gang affiliation, or a young mother who happens to
live in the neighborhood targeted by drive-by shooters.
Unless the shootings result in multiple murder, the
maximum sentence that a drive-by defendant can expect is 35
years to life (one count of first-degree murder with the
use of a firearm). The perpetrators of these senseless,
gang-type drive-by killings should be made eligible for the
harshest sentence available under California law, LWOP
(Life without the possibility of parole), or the death
penalty.
This proposal would make a murder which is committed
during a drive-by shooting a special circumstance to murder
ensuring a penalty of death or life without the possibility
of parole for a person who is convicted of such an offense.
2) The Problem. According to the the Los Angeles County Sheriff's
Department (LASD) Safe Streets Bureau, a total of 7,701
drive-by shootings were reported to law enforcement agencies
between 1992 - 1994 in Los Angeles
County alone. LASD also reports that there were 97 drive-by
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murders reported in Los Angeles County in 1993 alone.
A University of Southern California study published in the New
England Journal of Medicine on February 3, 1994, entitled
Adolescents and Children Injured or Killed in Drive-By
Shootings in Los Angeles, showed that in 1991, an average of
more than one young person, under the age of 18, per day was
shot in a drive-by shooting in Los Angeles; 36 of those youths
died. According to the Los Angeles Police Department, more
than 90% of these shootings were perpetrated by members of
violent street gangs. The study concluded that the primary
purpose of drive-by shootings is to terrorize members of rival
gangs and the secondary purpose is to kill. The study further
found that drive-by shootings are no longer confined to the
inner city, but instead have become a national phenomenon.
3) Potential Effect. Increases the punishment for a murder
occurring during a drive-by type shooting from a motor vehicle,
at a person outside of that vehicle, common in urban
gang-violence, to a sentence of death or life without the
possibility of parole.
4) Prior Legislation. SB 1311 (Presley) of 1993-1994 legislative
session, which failed passage in this Committee, would have
amended the death penalty law to add two new special
circumstances: carjacking felony-murder and drive-by murder.
SBX1 21 (Ayala) of 1993-1994 First Extraordinary Session failed
passage in this Committee. SBX1 21 would have made a first
degree drive-by murder a special circumstance subject to the
death penalty.
5) Motor Vehicle. A "motor vehicle" as specified in this bill is
a vehicle which is self-propelled. (Vehicle Code Section 415.)
6) Statewide Ballot. Because this bill affects an initiative
statute, if passed by the Legislature and signed by the
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Governor, it must be submitted to the voters in a statewide
general election.
SOURCE: Author
SUPPORT: Office of the Attorney General
Women Prosecutors of California
California Correctional Peace Officers Association
Plumas County Board of Supervisors
Doris Tate Crime Victims Bureau
California District Attorneys Association
California Organization of Police and Sheriffs
Government Relations Oversight Committee
OPPOSITION: Friends Committee on Legislation of California
American Civil Liberties Union (ACLU)
California Attorneys for Criminal Justice (CACJ)
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