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.) - continued - SB 9 Page 1 SB 9 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 - continued - SB 9 Page 2 SB 9 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 - continued - SB 9 Page 3 SB 9 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 - continued - SB 9 Page 4 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) - continued - SB 9 Page 5