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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                                                          SB 9

   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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