BILL ANALYSIS
AB 1769
Page 1
Date of Hearing: March 14, 2000
Chief Counsel: Bruce E. Chan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
AB 1769 (Robert Pacheco) - As Amended: January 19, 2000
SUMMARY : Redefines "gross vehicular manslaughter" (GVM) to
include a fetus as a victim. Specifically, this bill provides
that GVM while intoxicated is the unlawful killing of a human
being, or a fetus.
EXISTING LAW
1)Provides that vehicular manslaughter committed with gross
negligence and while the driver was under the influence of
alcohol or drugs is the felony of gross vehicular
manslaughter, which may be punished by four, six or ten years
in prison. (Penal Code Section 191.5(c).)
2)Provides that vehicular manslaughter committed with gross
negligence, but not while using alcohol or drugs, is an
alternate misdemeanor/felony punishable by up to one year in
jail and/or a $1,000 fine, or as a felony, punishable by two,
four, or six years in prison, a $10,000 fine or both. (Penal
Code Sections 192(c)(1) and 193 (c) (1).)
3)Provides that vehicular manslaughter committed without gross
negligence and without the use of alcohol or drugs is a
misdemeanor punishable by up to one year in jail and/or a
$1,000 fine. (Penal Code Sections 192(c)(2) and 193(c)(2).)
4)Provides that vehicular manslaughter committed without gross
negligence, but while the driver was under the influence of
alcohol or drugs is an alternate misdemeanor/felony,
punishable by up to one year in jail and/or a $1,000 fine, or,
as a felony, by 16 months, 2 or 4 years in prison and a fine
up to $10,000. (Penal Code Sections 192(c)(3) and 193(c)(3).)
5)Provides that a person convicted of GVM who has suffered one
or more prior convictions for GVM, for vehicular manslaughter
with gross negligence but not while using alcohol or drugs,
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for driving under the influence (DUI) of alcohol with a prior,
or for a DUI causing injury, shall be punished in prison for
15 years to life. (Penal Code Section 191.5(d).)
6)Provides that any person who, during the commission or
attempted commission of a felony, knows or reasonably should
know that the victim is pregnant, and who, with intent to
inflict injury and without the consent of the woman,
personally inflicts injury upon a pregnant woman that results
in the termination of the pregnancy, shall be punished by an
additional term of five years in prison. (Penal Code Section
12022.9(a).)
7)Provides that voluntary manslaughter is the unlawful killing
of a human being without malice upon a sudden quarrel or heat
of passion. (Penal Code Section 192(a).)
8)Provides that involuntary manslaughter is the unlawful killing
of a human being without malice in the commission of an
unlawful act, not amounting to a felony, or in the commission
of a lawful act which might produce death, in an unlawful
manner, or without due caution and circumspection. (Penal Code
Section 192(b).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement: According to the author, "Collisions
resulting from the gross negligence of drunk drivers are a
leading cause of death on California highways. AB 1769 seeks
to amend the gross vehicular manslaughter statute to bring it
into uniformity with California's murder statute by extending
its provisions to a fetus. By protecting a fetus from the
gross negligence of a drunk driver, we will be respecting a
woman's choice to carry a pregnancy to term."
2)Existing Penalty Enhancement for Terminating a Pregnancy: A
person who, during the commission of a felony, intentionally
inflicts injury on a pregnant woman causing the pregnancy to
terminate, shall receive five years in prison, in addition to
and consecutive to the punishment for the felony. For
example, a man assaults his pregnant girlfriend, causing great
bodily injury (GBI) to her and terminating her pregnancy.
Excluding any consideration of prior convictions and/or other
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enhancements, he faces four years for the assault, plus three
additional years for causing GBI, plus five years for ending
the pregnancy, for a total of 12 years in prison
3)Vehicular Murder: A murder of a fetus conviction will be
sustained in a vehicular homicide situation where more than
gross negligence and intoxication is shown. Thus, the state
must prove the driver was acting with implied malice. Implied
malice contemplates a higher degree of subjective awareness of
risk than does gross negligence and involves an element of
wantonness absent in gross negligence. A finding of gross
negligence is made by applying an objective test while a
finding of implied malice depends on a determination that the
defendant actually appreciated the risk involved. ( People v.
Watson (1978) 30 Cal.3d 290.)
In the Watson case, malice was implied from the fact that the
defendant drove to where he had been drinking and became
intoxicated knowing he would be driving away, drove at an
excessive speed, ran a red light, nearly colliding with
another vehicle, and then resumed driving at an excessive
speed until the collision that caused the deaths.
4)Existing Law Does Not Recognize The Crime Of Manslaughter Of A
Fetus: Under the Penal Code, as was true under common law, a
fetus is not a "human being" within section 187's definition
of murder as the "unlawful killing of a human being." ( Keeler
v. Superior Court (1970) 2 Cal.3d 619, 628-631) After
Keeler , the Legislature amended Penal Code Section 187
specifically to include as murder "the unlawful killing of?a
fetus." California law does not recognize the crime of
manslaughter of a fetus. People v. Dennis , (1998) 17 Cal.4th
468, 506. Thus, only the unlawful killing of a human being can
constitute manslaughter.
In People v. Dennis , the defendant attacked and killed his
former wife. Eight months pregnant at the time, the assault
also resulted in the death of the victim's unborn child. The
jury convicted the defendant of murder of his former wife and
the murder of the fetus. On appeal, the defendant claimed
that he was entitled to an instruction on the lesser offense
of manslaughter regarding the fetus. The defendant claimed
there was a factual issue as to whether the fetus was born
alive and thus a human being under the manslaughter statutes.
He also claimed that his constitutional rights were violated
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because California law does not include manslaughter as a
crime in the death of a fetus.
The Supreme Court rejected both claims. There was no evidence
to indicate that the fetus was born alive. The Court rejected
the constitutional claim and made the following observation:
"The Legislature could reasonably and rationally conclude the
unlawful killing of a fetus should be punished when committed
with express or implied malice, but that when such a killing
occurs upon a sudden quarrel or heat of passion (Penal Code
Section 192.), the punishment for the crime against the mother
is sufficient."
5)Proposed Exemption: If The Act Was Solicited, Aided, Abetted,
Or Consented To By The Mother: This bill has a provision with
the following exemption, "This section shall not apply if the
act was solicited, aided, abetted, or consented to by the
mother." The exemption is similar to provisions of AB 2178
(Battin), of the 1997-98 Legislative Session (which failed
passage in the Assembly Public Safety Committee.) The
language is derived from an exemption in the murder statute.
(See Penal Code Section 187(3).) The intent of the above
provision appears to only permit a vehicular manslaughter
prosecution of third parties for a fetal death. Arguably, it
would not exempt either the mother of the fetus, father, or
any other driver of the car from prosecution for the death of
the fetus. It is difficult to posit a scenario where a
pregnant woman aids, abets, or consents to an accident in
which she is either the driver or passenger of a car.
6)Existing Penalties For GVM Are Substantial: Existing law
provides that vehicular manslaughter committed with gross
negligence and while the driver was under the influence of
alcohol or drugs, shall be punished by four, six or ten years
in state prison. Furthermore, existing law provides that a
person convicted of GVM who has suffered one or more prior
convictions for GVM, for vehicular manslaughter with gross
negligence but not while using alcohol or drugs, for DUI of
alcohol with a prior, or for a DUI causing injury, shall be
punished in prison for 15 years to life. In light of existing
criminal penalties and the aforementioned issues regarding
conferring independent legal status for a fetus, is this bill
necessary?
7)Arguments In Support: The Committee on Moral Concerns states,
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"The so-called right to abortion involves only the mother's
rights. This bill applies when the mother is pregnant and
presumably has chosen to have her baby. It must, therefore,
be agreed that the human fetus has great value to the pregnant
accident victim. This unlawful destruction of a human fetus
is serious enough to require this provision in law. The
California Supreme Court ruled May 16, 1994, that the
third-party killing of an unborn fetus with malice
aforethought is murder. Logic would follow that vehicular
manslaughter of a human fetus should also be illegal. Under
existing law a trial court once found a driver guilty of
second degree murder for killing a human fetus in a vehicle
accident (Redding, California, May 18, 1995). The punishment,
15 years to life, doesn't really fit the crime. Vehicular
manslaughter is more appropriate and better serves the
interests of justice."
8)Arguments In Opposition:
a)According to the American College of Obstetricians and
Gynecologists, "The legislation is unnecessary as current
statute allows a penalty enhancement for injury inflicted
during the act of a felony that results in a termination of
a pregnancy. Also current law makes drunk driving a crime.
This bill does nothing to protect a pregnant woman. The
defendant has no reason to know that a woman is pregnant,
hence criminal law will not prevent an injury during
pregnancy. This legislation also could have a serious
impact on reproductive rights. For the first time a duty
would be imposed on a pregnant woman in relationship to her
fetus. Such precedent is of great concern for the future
health and decision making power of a pregnant woman."
b)According to the American Civil Liberties Union (ACLU),
"The bill will be ineffective in protecting pregnant women
and will undermine reproductive freedom. By creating a new
crime victim (the fetus), this measure seeks to separate
the woman from her fetus in the eyes of the law.
"Current law provides for a penalty enhancement for injury
inflicted during the commission of a felony that results in
the termination of a pregnancy."
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"This bill could become the first step in imposing even more
onerous duties that subordinate the legitimate needs and
interests of the pregnant woman (and those of her existing
children) to those of the fetus."
* * *
"The problem of drunk driving that results in the loss of a
wanted pregnancy can be addressed in other ways that do not
have such momentous and far-reaching policy implications
and that avoid the constitutional issues raised in this
proposal. We recognize that the loss of a wanted pregnancy
is a tragedy. This measure would be ineffective in
protecting a pregnant woman and pushes an anti- abortion
agenda."
9)Related Legislation: AB 722 (Kaloogian), of the 1999-00
Legislative Session, failed passage in the Assembly Public
Safety Committee.
10)Prior Legislation : AB 2178 (Battin), of the 1997-98
Legislative Session, failed passage in the Assembly Public
Safety Committee; AB 2691 (House), of the 1995-96 Legislative
Session, failed passage on the Assembly floor; AB 2, of the
1993-94 Legislative Session, failed passage in the Assembly
Public Safety Committee; and AB 3278, of the 1991-92
Legislative Session, failed passage in the Senate Judiciary
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Right to Life Education Fund
Committee on Moral Concerns
Opposition
American Association of University Women
American Civil Liberties Union
American College of Obstetricians and Gynecologists
California Abortion and Reproductive Rights Action League
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California Public Defenders Association
National Abortion and Reproductive Rights Action League
Planned Parenthood
Analysis Prepared by : Bruce Chan / PUB. S. / (916) 319-3744