Ernest DeWayne Jones v. Robert K. Wong

Filing 59

NOTICE OF MOTION AND First MOTION for Hearing Evidentiary Hearing filed by Petitioner Ernest DeWayne Jones. (Attachments: # 1 Exhibit Volume 1 Of Exhibits In Support of Motion For Evidentiary Hearing, # 2 Exhibit Volume 2 Of Exhibits In Support of Motion For Evidentiary Hearing, # 3 Exhibit Volume 3 Of Exhibits In Support of Motion For Evidentiary Hearing, # 4 Exhibit Volume 4 Of Exhibits In Support of Motion For Evidentiary Hearing, # 5 Exhibit Volume 5 Of Exhibits In Support of Motion For Evidentiary Hearing, # 6 Exhibit Volume 6 Of Exhibits In Support of Motion For Evidentiary Hearing)(Daniels, Patricia)

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MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

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ERNEST DEWAYNE JONES,
Petitioner,

Case No. CV-09-2158-CJC
DEATH PENALTY CASE

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v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

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EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 4

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TAB

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VOLUME 1

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Declaration of Floyd Nelson

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B

Declaration of Larry Williams

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Declaration of Jimmy Camel

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Declaration of James S. Thomson

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Declaration of Quin Denvir

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Declaration of David Baldus

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Declaration of George Woodworth, Ph.D.

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Declaration of Steven F. Shatz

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Declaration of Gerald Uelman

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Declaration of Donald H. Heller

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Transcript of Proceedings From Troy Adam Ashmus v. Robert K. Wong, U.S. District
Court For The Northern District Of California, Case No. C93-0594 (Nov. 19, 2010)

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Transcript of Proceedings From Troy Adam Ashmus v. Robert K. Wong, U.S. District
Court For The Northern District Of California, Case No. C93-0594 (Nov. 22, 2010)

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Legislative History Material Regarding California's Death Penalty Statutes
(Part 1 of 4)

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EXHIBIT

VOLUME 2
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Legislative History Material Regarding California's Death Penalty Statutes
(Part 2 of 4)

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VOLUME 3

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Legislative History Material Regarding California's Death Penalty Statutes
(Part 3 of 4)

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VOLUME 4

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Legislative History Material Regarding California's Death Penalty Statutes
(Part 4 of 4)

VOLUME 5
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Newspaper Articles Regarding California Death Penalty Statutes (Part 1 of 2)

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TAB

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VOLUME 6

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EXHIBIT

Newspaper Articles Regarding California Death Penalty Statutes (Part 2 of 2)

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MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

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ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

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v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

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EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 4
EXHIBIT M
LEGISLATIVE HISTORY MATERIAL REGARDING CALIFORNIA'S DEATH
PENALTY STATUTES
(PART 4 OF 4)

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Exhibit M
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BILL ANALYSIS
Bill Lockyer, Chairman
1993-94 Regular Session

SB 310 (Ayala)
As amended March 29
Hearing date: March 30, 1993
Penal Code
GWW/jt

MURDERS COMMITTED FROM MOTOR VEHICLES
-STATUTORY CLASSIFICATION OF FIRST DEGREE MURDER-DEATH PENALTY FOR INTENTIONAL KILLING-

HISTORY

Source:

Author; OCJP

Prior Legislation:
Support:

None

Women Prosecutors of California

Opposition:

Friends Committee on Legislation; CACJ; ACLU

(THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED IN
šCOMMITTEE.)

KEY ISSUES
SHOULD ANY MURDER WHICH IS COMMITTED BY SHOOTING A FIREARM FROM A
šMOTOR VEHICLE, INTENTIONALLY AT ANOTHER PERSON OUTSIDE THE VEHICLE
šWITH THE INTENT TO INFLICT DEATH OR GREAT BODILY INJURY, BE DEEMED
šBY LAW TO BE FIRST DEGREE MURDER?
SHOULD SUCH A MURDER, COMMITTED INTENTIONALLY, BE PUNISHABLE BY THE
šDEATH PENALTY?
PURPOSE
Existing law makes first degree murder, as defined, punishable by a
š25 year to life sentence which can be reduced one-half by work-time
šcredits. Release on parole, however, is at the discretion of the
šBoard of Prison Terms. Second degree murder is punishable by a 15

(More)

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SB 310 (Ayala)
Page 2

year to life term.

Existing law makes any first degree murder committed with special
šcircumstances punishable by life imprisonment without possibility of
šparole or by death.
This bill would classify as first degree murder any
šperpetrated by means of discharging a firearm from
šintentionally at another person or persons outside
šthe intent to inflict death or great bodily injury

murder which is
a motor vehicle,
the vehicle with
(gbi).

This bill would also make that murder, when committed intentionally,
ša "special circumstance" offense punishable by the death penalty or
šby life imprisonment without parole.
The purpose of this bill is to increase the penalty for murders
šcommitted by drive-by shootings.
COMMENT
1.

Stated need to raise penalties
According to the author's office and sponsor, current law does
not adequately punish the murder of an innocent victim
perpetrated by a drive-by shooting. Under current law, a
drive-by first degree murder is punishable by a 30 years to life
sentence (25 years to life for murder and a five year
enhancement for use of a firearm with the intent to inflict
death or gbi). A second degree drive-by murder with a firearm
is punishable by a 20 years to life sentence (15 to life plus 5
years).
OCJP contends that all drive-by shootings should be deemed first
degree murders, that drive-by killers should never be eligible
for parole release, and that these killers should be subject to
the death penalty as retribution for their victims.

2.

Easing the elements of first degree murder for drive-by killings
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 committee during the commission of a list of enumerated
felonies (felony-murder). All other murders are second degree
murders (i.e., no premeditation or deliberation).

(More)

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SB 310 would classify as first degree murder any murder which is
perpetrated by means of discharging a firearm from a motor
vehicle intentionally at another person with the intent to
inflict death or great bodily injury. In operation, the
provision would change the elements of first degree murder to
make it easier to obtain a first-degree murder conviction for a
drive-by shooting murder.
Opponents argue that this provision blurs the distinction
between first and degree murder and in effect operates to
bootstrap what is now a second degree murder into first degree
murder. For example, shooting a weapon at an inhabited dwelling
involves a reckless disregard of the probable consequences, and
if death occurs, can lead to a second degree murder conviction.
(See People v. White (1992) 4 Cal.App 4th 1299 - malice implied
from reckless act.) It is, however, not first degree murder
unless the defendant acted with deliberation and premeditation.
This distinction is grounded in fundamentals of criminal law,
which requires that a defendant to have a guilty mind ("mens
rea") to commit the crime and that the punishment must fit the
guilty mind of the perpetrator. If the murder was not committed
with premeditation and deliberation (or under the felony-murder
doctrine) the offense is not first degree murder.
To address these concerns, the author has amended SB 310 to
require that the shooting be "intentionally at another person or
persons with the intent to inflict death or great bodily
injury". While the amendment ensures that malice must be shown
for a first degree murder conviction, it would not require a
showing of "premeditation and deliberation" for a first degree
murder conviction. Proponents assert that the requirement of
proving premeditation and deliberation in a spontaneous drive-by
shooting is often difficult and thus allows drive-by murderers
to escape full punishment for their crimes. Proponents also
note that other first degree murder crimes do not require an
express showing of premeditation and deliberation, such as the
felony-murder crimes or murders committed by use of explosives,
and that drive-by killings are as heinous as those crimes.
(Author's amendments in committee are expected to add language
that the victim was not a vehicle occupant to characterize the
offense as a drive-by shooting.)
2.

Death penalty for intentional, drive-by murders
SB 310 would also make a drive-by shooting murder punishable by
the death penalty (or by life imprisonment without possibility
of parole) when the murder was intentional. The requirement of
an "intentional" murder was added at the suggestion of committee

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staff and mirrors several other provisions of the death penalty
law which requires an intentional murder for a death sentence.

3.
š

Meaningful basis required for distinguishing between special
circumstance crimes and other murders
Historically, California's special circumstance death penalty
law was first enacted n 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).
The defense bar opposes SB 310's expansion of the death penalty
and asserts that it is seriously flawed in that it fails to
provide a meaningful basis for distinguishing between death
penalty murders and other murders. The fact that a victim was
shot from a vehicle compared to being shot from a location other
than a vehicle does not establish a meaningful basis for
deciding who gets the death penalty and who does not.
Another opponent of a prior measure, SB 159 (Floyd) which was
held by the Assembly Committee on Public Safety, stated "A
special circumstance for drive by shooting appears to us to be
illogical and unwarranted. Death Penalty homicides are
determined by the gravity of the offense not the location of the
defendant."

4.

Other opposition arguments
The Friends Committee on Legislation opposes any expansion of
the list of death penalty crimes. FCL asserts that the death
penalty is not a deterrent to murder and that SB 310 would not
deter drive-by-shootings.
CACJ also contends that implementation of the death penalty law
is very costly and that scarce criminal justice resources could
be better spent by dealing directly with social factors which
contribute to the homicide rate.

SB 310 (Ayala)
Page 5

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BILL ANALYSIS
Date of Hearing:
Counsel:

SB 60

July 13, 1993
Paul M. Gerowitz
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bob Epple, Chair

SB 60 (Presley) - As Proposed to be Amended In Committee

ISSUE: SHOULD THE NEW CRIME OF CARJACKING BE CREATED, AS SPECIFIED?
DIGEST
Under current law carjacking is punishable, under the robbery statute,
by two, three, or five years in state prison and a fine up to $10,000.
(Penal Code sections 211 and 212.5(b).)
This bill:
1)

Creates the new crime of carjacking, punishable by three, six, or nine
years in state prison and a fine up to $10,000.

2)

Creates sentence enhancements specific to the crime of carjacking, as
specified.

3)

Makes appropriate cross-reference changes as specified.

COMMENTS
1) Purpose.

According to the author:

There has been considerable increase in the number of persons who
have been abducted, many have been subjected to the violent
taking of their automobile and some have had a gun used in
the taking of the car. This relatively "new" crime appears
to be as much thrill-seeking as theft of a car. If all the
thief wanted was the car, it would be simpler to hot-wire
the automobile without running the risk of confronting the
driver. People have been killed, seriously injured, and
placed in great fear, and this calls for a strong message
to discourage these crimes. Additionally law enforcement is
reporting this new crime is becoming the initiating rite
for aspiring gang members and the incidents are drastically
increasing.
Under current law there is no carjacking crime per se and many
car jackings cannot be charged as robbery because it is
difficult to prove the intent required of a robbery offense
(to permanently
- continued SB 60
Page 1
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deprive one of the car) since many of these gang carjackings are
šthrill seeking thefts. There is a need to prosecute this crime.

2)
š

Penalties. This bill creates sentences of up to nine years for the
crime of carjacking, which is three years more than the maximum
sentence for robbery.

3)
š

Sentence Enhancements. This bill also creates sentence enhancements
specifically designed to punish serious carjacking offenders. For
example, it provides for an enhancement of four, six, or eight
years, for personal use of a firearm during the commission of a
carjacking. The standard enhancement for personal use of a firearm
during the commission of a felony is three, four, or five years.
The bill also contains enhancement provisions for use of a deadly
weapon other than a firearm, and for the discharging of a firearm
causing great bodily injury. In addition, other existing sentence
enhancements would be applicable.

4)
š

Compared to Current Law. Under current law, a carjacking would be
prosecuted as robbery, and would be subject to existing sentence
enhancements. The maximum sentence for a carjacker who uses a gun and
causes great bodily injury is, under current law, fourteen years.
Under this bill, the same carjacker could receive a sentence of up
to twenty years.

5)
š

Cross-reference Changes. Because the law of robbery has an impact
upon many other sections of the codes, the author of this bill has
included in the bill various cross-reference changes. Among the
most noteworthy of these are:
a)

b)

Probation and Plea Bargaining: This bill provides that plea
bargaining and probation limitations such as those which apply
in robbery cases also apply in carjacking cases.

c)

6)

Juvenile Justice: Under current law, persons 16 years of age or
older are presumed to be triable as adults if accused of
specified offenses.
Among these specified offenses are the
crime of robbery while armed with a dangerous or deadly weapon.
This bill adds carjacking with a dangerous or deadly weapon to
the list.

Petty Theft With a Prior: Under current law a person who commits
petty theft, and who has previously served time for a theftrelated offense, is guilty of a felony. This bill adds
carjacking to the list of theft- related offenses which will
qualify a defendant for felony status on the subsequent offense.

Related Legislation. On February 9, 1993 this Committee passed AB 6
(Burton), a bill which also created the crime of carjacking. That
bill is currently in the Senate. Through a series of amendments and
negotiations, the authors of AB 6 and SB 60 have agreed that the two
bills shall be rendered identical with one another. The proposed
- continued SB 60
Page 2
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amendments to this bill, which are reflected in this analysis, are
consistent with that agreement.

SOURCE:

California District Attorneys Association
San Diego County District Attorneys Office
Governor's Office

SUPPORT:

Greater Riverside Chambers of Commerce
Doris Tate Crime Victims Bureau
Personal Insurance Federation of California

OPPOSITION:

California Attorneys for Criminal Justice

- continued SB 60
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BILL NUMBER: SB 32
BILL
TEXT
INTRODUCED BY

INTRODUCED

Senator Peace
DECEMBER 9, 1994

An act to amend Section 190.2 of the Penal Code, relating to
murder.

LEGISLATIVE

COUNSEL'S DIGEST

SB 32, as introduced, Peace. Murder: special circumstances.
Existing law specifies that the penalty for a defendant who is
found guilty of murder in the first degree is death or imprisonment
in the state prison for life without the possibility of parole, where
one or more special circumstances have been found to be true.
This bill would include within that list of special circumstances
a murder that was committed while the defendant was engaged in, or an
accomplice to, the commission or attempted commission of a
carjacking, as defined, an intentional murder where the defendant
intended to kill more than one person at the time of the murder, an
intentional murder where the defendant knowingly created a grave risk
of death to more than one person, or where the victim was a juror,
as specified.
Because the bill amends an initiative statute, the bill would
provide that its provisions would become effective only when
submitted to, and approved by, the voters.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 190.2 of the Penal Code is amended to read:
190.2. (a) The penalty 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
if
possibility of parole in any case in which
one or more of the following special circumstances has been
found , under Section 190.4 , to be
true:
(1) The murder was intentional and carried out for financial gain.
(2) The defendant was previously convicted
previously of murder in the first degree or
second degree. For the purpose of this paragraph , an
offense committed in another jurisdiction which
that, if committed in California would be punishable as
first or second degree murder , shall be deemed murder in
the first or second degree.
, in this
(3) The defendant has
proceeding , has been convicted of more than one offense
of murder in the first or second degree.
(4) The murder was committed by means of a destructive device,
bomb, or explosive planted, hidden , or concealed in any
place, area, dwelling, building , or structure, and the
defendant knew , or reasonably should have known ,

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that his or her act or acts would create a great risk of death
one or more human
to a human being or
beings.
(5) The murder was committed for the purpose of avoiding or
preventing a lawful arrest , or to perfect ,
or attempt to perfect , an escape from lawful
custody.
(6) The murder was committed by means of a destructive device,
bomb, or explosive that the defendant mailed or delivered, attempted
caused to
to mail or deliver, or cause
be mailed or delivered , and the defendant knew ,
or reasonably should have known , that his or her
act or acts would create a great risk of death to a human
one or more human beings.
being or
(7) The victim was a peace officer , as defined in
Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35,
830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11 , or
830.12, who, while engaged in the course of the performance of his or
her duties , was intentionally killed, and the defendant
knew , or reasonably should have known , that
the victim was a peace officer engaged in the performance of his or
her duties; or the victim was a peace officer , as defined
above-enumerated
in the above enumerated
sections of the Penal Code , or a former
those
peace officer under any of such
sections, and was intentionally killed in retaliation for the
performance of his or her official duties.
(8) The victim was a federal law enforcement officer or agent
, who, while engaged in the course of the
performance of his or her duties , was intentionally
killed, and the defendant knew , or reasonably should have
known , that the victim was a federal law enforcement
officer or agent , engaged in the performance of
his or her duties; or the victim was a federal law enforcement
officer or agent, and was intentionally killed in retaliation for the
performance of his or her official duties.
(9) The victim was a firefighter , as defined in
Section 245.1, who , while engaged in the course of the
performance of his or her duties , was intentionally
killed, and the defendant knew , or reasonably should have
known , that the victim was a firefighter engaged in the
performance of his or her duties.
(10) The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in any
criminal or juvenile proceeding, and the killing was not committed
during the commission , or attempted commission
, of the crime to which he or she was a witness; or the
victim was a witness to a crime and was intentionally killed in
retaliation for his or her testimony in any criminal or juvenile
proceeding. As used in this paragraph , "juvenile
proceeding" means a proceeding brought pursuant to Section 602 or 707
of the Welfare and Institutions Code.
(11) The victim was a prosecutor or assistant prosecutor or a
former prosecutor or assistant prosecutor of any local or state
prosecutor's office in this state or any other state
, or of a federal prosecutor's office ,
and the murder was intentionally carried out in retaliation for
, or to prevent the performance of , the
victim's official duties.
(12) The victim was a judge or former judge of any court of record
in the local, state , or federal system in the
State of California or in any other
state of the United States , and the murder was

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intentionally carried out in retaliation for , or to
prevent the performance of , the victim's official duties.
(13) The victim was an elected or appointed official or former
official of the federal government, a local or state
government of California, or of any local or state
government of any other state in the United States
, and the killing was intentionally carried out in
retaliation for , or to prevent the performance of ,
the victim's official duties.
(14) The murder was especially heinous, atrocious, or cruel,
manifesting exceptional depravity. As utilized
used in this section, the phrase especially
"especially heinous, atrocious , or
cruel , manifesting exceptional depravity
depravity" means a conscienceless ,
that
or pitiless crime which
is unnecessarily torturous to the victim.
(15) The defendant intentionally killed the victim while lying in
wait.
(16) The victim was intentionally killed because of his or her
race, color, religion, nationality , or country of origin.
(17) The murder was committed while the defendant was engaged in
, or was an accomplice in , the commission of,
attempted commission of, or the immediate flight after committing
, or attempting to commit , the following
felonies:
(i)
(A) Robbery in violation of Section 211 or 212.5.
(ii)
(B) Kidnapping in violation of Section 207 or
, 209 , or 209.5 .
(iii)
(C) Rape in violation of Section 261.
(iv)
(D) Sodomy in violation of Section 286.
(v)
(E) The performance of a lewd or lascivious act upon the
person of a child under the age of 14 years in
violation of Section 288.
(vi)
(F) Oral copulation in violation of Section 288a.
(vii)
(G) Burglary in the first or second degree in violation of
Section 460.
(viii)
(H) Arson in violation of subdivision (b) of Section 451.
(ix)
(I) Train wrecking in violation of Section 219.
(x)
(J) Mayhem in violation of Section 203.
(xi)
(K) Rape by instrument in violation of Section 289.
(L) Carjacking, as defined in Section 215.
(18) The murder was intentional and involved the infliction of
torture.
(19) The defendant intentionally killed the victim by the
administration of poison.
(20) The defendant intentionally killed the victim and intended to
kill more than one person at the time of committing the murder.
(21) The defendant intentionally killed the victim and knowingly

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created a grave risk of death to more than one person, other than
another principal in the murder, at the time of committing the
murder.
(22) The victim was a juror in any court of record in the local,
state, or federal system in any state of the United States, and the
murder was intentionally carried out in retaliation for, or to
prevent the performance of, the victim's official duties.
(b) Unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an
actual killer , as to whom such
the special circumstance has been found to be true under
Section 190.4 , need not have had any intent to kill at
the time of the commission of the offense which is the basis of the
special circumstance , in order to suffer death or
confinement in the state prison for a term of
life without the possibility of parole.
(c) Every person , not the actual killer ,
who, with the intent to kill, aids, abets, counsels, commands,
induces, solicits, requests, or assists any actor in the commission
of murder in the first degree , shall suffer death or
confinement in the state prison for a term of
life without the possibility of parole , in any
if one or more of the special
case in which
circumstances enumerated in subdivision (a) of this section
has been found to be true under Section 190.4.
(d) Notwithstanding subdivision (c), every person , not
the actual killer, who, with reckless indifference to human life and
as a major participant, aids, abets, counsels, commands, induces,
solicits, requests, or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a), which felony results
in the death of some person or persons, who is found guilty of
murder in the first degree therefor, shall suffer death or
confinement in the state prison for life without the
possibility of parole , in any case in which
if a special circumstance enumerated in paragraph (17) of
subdivision (a) of this section has been found to
be true under Section 190.4.
The penalty shall be determined as provided in this section
and Sections 190.1, 190.2, 190.3, 190.4, and
190.5.
SEC. 2. This act affects an initiative statute, and shall become
effective only when submitted to and approved by the voters pursuant
to subdivision (c) of Section 10 of Article II of the California
Constitution.

http://info.sen.ca.gov/pub/95-96/bill/sen/sb_0001-0050/sb_32_bill_941209_introduced.html

Exhibit M
Page 1294

685

Exhibit M
Page 1295

686

Exhibit M
Page 1296

687

Exhibit M
Page 1297

688

Exhibit M
Page 1298

689

Exhibit M
Page 1299

690

Exhibit M
Page 1300

691

Exhibit M
Page 1301

692

Exhibit M
Page 1302

693

Exhibit M
Page 1303

694

Exhibit M
Page 1304

695

Exhibit M
Page 1305

696

Exhibit M
Page 1306

697

Exhibit M
Page 1307

698

Exhibit M
Page 1308

699

Exhibit M
Page 1309

700

Exhibit M
Page 1310

701

Exhibit M
Page 1311

702

Exhibit M
Page 1312

703

Exhibit M
Page 1313

704

Exhibit M
Page 1314

705

Exhibit M
Page 1315

706

Exhibit M
Page 1316

707

Exhibit M
Page 1317

708

Exhibit M
Page 1318

709

Exhibit M
Page 1319

710

Exhibit M
Page 1320

711

Exhibit M
Page 1321

712

Exhibit M
Page 1322

713

Exhibit M
Page 1323

714

Exhibit M
Page 1324

715

Exhibit M
Page 1325

716

Exhibit M
Page 1326

717

Exhibit M
Page 1327

718

Exhibit M
Page 1328

719

Exhibit M
Page 1329

720

Exhibit M
Page 1330

721

Exhibit M
Page 1331

722

Exhibit M
Page 1332

723

Exhibit M
Page 1333

724

Exhibit M
Page 1334

725

Exhibit M
Page 1335

726

Exhibit M
Page 1336

727

Exhibit M
Page 1337

728

Exhibit M
Page 1338

729

Exhibit M
Page 1339

730

Exhibit M
Page 1340

731

Exhibit M
Page 1341

732

Exhibit M
Page 1342

733

Exhibit M
Page 1343

734

Exhibit M
Page 1344

735

Exhibit M
Page 1345

736

Exhibit M
Page 1346

737

Exhibit M
Page 1347

738

Exhibit M
Page 1348

739

Exhibit M
Page 1349

740

Exhibit M
Page 1350

741

Exhibit M
Page 1351

742

Exhibit M
Page 1352

743

Exhibit M
Page 1353

744

Exhibit M
Page 1354

745

Exhibit M
Page 1355

746

Exhibit M
Page 1356

747

Exhibit M
Page 1357

748

Exhibit M
Page 1358

749

Exhibit M
Page 1359

750

Exhibit M
Page 1360

751

Exhibit M
Page 1361

752

Exhibit M
Page 1362

753

Exhibit M
Page 1363

754

Exhibit M
Page 1364

755

Exhibit M
Page 1365

756

Exhibit M
Page 1366

757

Exhibit M
Page 1367

758

Exhibit M
Page 1368

759

Exhibit M
Page 1369

760

Exhibit M
Page 1370

761

Exhibit M
Page 1371

762

Exhibit M
Page 1372

763

Exhibit M
Page 1373

764

Exhibit M
Page 1374

765

Exhibit M
Page 1375

766

Exhibit M
Page 1376

767

Exhibit M
Page 1377

768

Exhibit M
Page 1378

769

Exhibit M
Page 1379

770

Exhibit M
Page 1380

771

Exhibit M
Page 1381

772

Exhibit M
Page 1382

773

Exhibit M
Page 1383

774

Exhibit M
Page 1384

775

Exhibit M
Page 1385

776

Exhibit M
Page 1386

777

Exhibit M
Page 1387

778

Exhibit M
Page 1388

779

Exhibit M
Page 1389

780

Exhibit M
Page 1390

781

Exhibit M
Page 1391

782

AB 1574
Page 1
ASSEMBLY THIRD READING
AB 1574 (Corbett)
As Introduced February 26, 1999
2/3 vote
6-1

PUBLIC SAFETY

APPROPRIATIONS

21-0

----------------------------------------------------------------|Ayes:|Honda, Cunneen, Battin,
|Ayes:|Migden, Brewer, Ashburn, |
|
|Keeley, Oller, Romero
|
|Battin, Cedillo, Davis,
|
|
|
|
|Pescetti, Hertzberg,
|
|
|
|
|Kuehl, Maldonado, Papan, |
|
|
|
|Romero, Runner, Shelley, |
|
|
|
|Steinberg, Thomson,
|
|
|
|
|Wesson, Wiggins, Zettel, |
|
|
|
|Aroner
|
|-----+--------------------------+-----+--------------------------|
|Nays:|Washington
|
|
|
|
|
|
|
|
----------------------------------------------------------------SUMMARY : Classifies as first-degree murder any murder committed
in the perpetration of, or attempt to perpetrate, torture.
EXISTING LAW

:

1)Provides that all murder which is perpetrated by means of
torture is murder of the first degree.
2)Excludes "torture murder" from the list of homicides
statutorily designated as "felony murders."
3)Provides a special circumstance authorizing imposition of the
death penalty if the first-degree murder was intentional and
involved the infliction of torture.
4)Defines the crime of "torture" as "Every person who, with the
intent to cause cruel or extreme pain and suffering for the
purpose of revenge, extortion, persuasion, or for any sadistic
purpose, inflicts great bodily injury as defined in [the Penal
Code] upon the person of another, is guilty of torture."
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis, this bill has annual costs for increased
state incarceration, likely in excess of $200,000.

AB 1574
Page 2

http://info.sen.ca.gov/pub/99-00/bill/asm/ab_1551-1600/ab_1574_cfa_19990529_225801_asm_floor.html

Exhibit M
Page 1392

783

In 1997-98, 659 persons were admitted to state prison for
second-degree murder; there is no data to determine how many
cases involved torture. If, however, one-half of 1% involved
torture, received 25-to-life rather than 15-to-life, and served
an additional five years after 20 years, annual costs would be
about $350,000 in about 25 years.
According to the author, "Currently there are three
COMMENTS :
definitions of 'torture' murder:
1)'Torture' special circumstances murder, requiring
premeditation and deliberation, an intent to kill, and in
intent to cause 'prolonged pain;'
2)'Torture' first degree murder, requiring premeditation and
deliberation and an intent to cause 'prolonged pain,' but no
intent to kill; and,
3)'Torture' second degree felony murder, no intent to kill, no
premeditation and deliberation and no intent to cause
'prolonged pain' required.
"This proposal would add Penal Code Section 206 - Torture to the
list of crimes for first degree murder. This would mean that
when a person is killed during the perpetration of the crime of
degree murder
'torture' pursuant to PC 206, the crime is first
in all cases. Second degree torture felony murder will be
eliminated; and the current requirements of premeditation and
deliberation and an intent to cause prolonged pain for first
degree torture murder will also be eliminated. However, the
distinction between torture special circumstance murder and
first degree torture felony murder will continue to be that the
killing was intentional."
Please see the policy committee analysis for a more
comprehensive discussion of this bill.
Analysis Prepared by

:

Harry Dorfman / PUB. S. / [phone]

FN: 0001079

http://info.sen.ca.gov/pub/99-00/bill/asm/ab_1551-1600/ab_1574_cfa_19990529_225801_asm_floor.html

Exhibit M
Page 1393

784

AB 1574
Page 1
Date of Hearing:
Chief Counsel:

April 13, 1999
Harry M. Dorfman

ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 1574 (Corbett) - As Introduced: February 26, 1999
SUMMARY : Classifies as first-degree murder any murder committed
in the perpetration of, or attempt to perpetrate, torture as
defined in Penal Code Section 206.
EXISTING LAW

:

1)Provides that all murder which is perpetrated by means of
torture is murder of the first degree. (Penal Code Section
189.)
2)Excludes "torture murder" from the list of homicides
statutorily designated as "felony murders." (Penal Code
Section 189.)
3)Provides that all other kinds of murders are of the second
degree. (Penal Code Section 189.)
4)Provides a special circumstance authorizing imposition of the
death penalty if the first-degree murder was intentional and
involved the infliction of torture. (Penal Code Section
190.2(a)(18).)
5)Defines the crime of "torture" as "Every person who, with the
intent to cause cruel or extreme pain and suffering for the
purpose of revenge, extortion, persuasion, or for any sadistic
purpose, inflicts great bodily injury as defined in Section
12022.7 upon the person of another, is guilty of torture."
(Penal Code Section 206.)
FISCAL EFFECT
COMMENTS

:

Unknown

:

1)Author's Statement.
'torture' murder:
a)

"Currently there are

three

definitions of

Penal Code Section 190.2(18) 'torture' special

AB 1574
Page 2

http://info.sen.ca.gov/pub/99-00/bill/asm/ab_1551-1600/ab_1574_cfa_19990412_121435_asm_comm.html

Exhibit M
Page 1394

785

circumstances murder, requiring premeditation and
deliberation, an intent to kill, and in intent to cause
'prolonged pain;'
b)
Penal Code Section 189 'torture' first degree murder,
requiring premeditation and deliberation and an intent to
cause 'prolonged pain,' but no intent to kill; and
c)
Penal Code Section 206 'torture' second degree felony
murder, no intent to kill, no premeditation and
deliberation and no intent to cause 'prolonged pain'
required.
"This proposal would add PC 206 - Torture to the list of
crimes for first degree murder. This would mean that when a
person is killed during the perpetration of the crime of
'torture' pursuant to PC 206, the crime is first degree murder
in all cases.
Second degree torture felony murder will be
eliminated; and the current requirements of premeditation and
deliberation and an intent to cause prolonged pain for first
degree torture murder will also be eliminated. However, the
distinction between torture special circumstance murder and
first degree torture felony murder will continue to be that
the killing was intentional."
2)With this Bill, Death Resulting from Torture Qualifies for the
At first glance, the Penal Code
"Felony Murder Rule."
specifies that torture murder is first-degree murder. One
might therefore question the significance of this bill's
proposal. In fact, this bill would effect a substantive
change in the Penal Code's classification of "torture murder."
This bill proposes to add "torture" to the list of underlying
felonies which trigger the application of the so-called
"Felony Murder Rule." This bill would significantly affect
the way a prosecutor would go about charging a defendant who
had murdered while torturing the victim.
The Felony Murder Rule classifies as a first-degree murder any
killing which occurs during the commission or attempted
commission of one of the specified target felonies, even if
the killing was unintentional or accidental. [ People v.
Patterson , (1989) 49 Cal.3d 615, 620; Pepole v. Sellers , 203
Cal.App.3d 1042, 1055.] This legal theory operates to remove
the need to prove any malice, or intent to kill, on the part
of the defendant. The policy behind the Felony Murder Rule is

AB 1574
Page 3
to discourage the commission of the inherently dangerous
specified felonies because they pose such high risks of death.
[ People v. Smith , (1998) 62 Cal.App.4th 1233, 1236-37.] The
Felony Murder Rule has withstood repeated arguments that it is
unconstitutional. [ See People v. Hines , (1997) 15 Cal.4th
997, 1048-49.]

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Exhibit M
Page 1395

786

Currently, in order to prove that a "torture murder" is a
first-degree murder, the prosecutor must show beyond a
reasonable doubt that the death was caused by torture.
[ People v. Hoban , (1985) 176 Cal.App.3d 255, 264.] However,
"it is unnecessary in torture-murder to . . . find that the
killing itself was 'willful, deliberate, and premeditated.' "
[ People v. Wiley , (1976) 18 Cal.3d 162, 173 n.4.] Rather, the
Supreme Court has concluded that "murder by means of torture
under [Penal Code] section 189 is murder committed with a
willful, deliberate, and premeditated intent to inflict
extreme and prolonged pain." [ Wiley at p. 173, quoting People
v. Steger , (1976) 16 Cal.3d 539, 546.]
One practical effect of this bill will be to remove the need to
prove that torturing the victim was willful, deliberate and
premeditated pursuant to Wiley and Steger . If the prosecutor
can prove beyond a reasonable doubt that the defendant had the
specific intent to inflict extreme and prolonged pain and
suffering, and that a death occurred as a result of the
torture, the defendant will be guilty of first-degree murder.
3)Second-Degree Felony Murder by Torture Will Disappear.
Judge-made law in California recognizes an alternative theory
of Felony Murder which results in a second-degree murder
rather than a first-degree murder conviction. "The second
degree Felony Murder doctrine, which is judicially defined,
applies only where the underlying felony is 'inherently
dangerous to human life.' " [ People v. Smith , (1998) 62 Cal.
App.4th 1233, 1237, quoting People v. Burroughs , (1984) 35
Cal.3d 824, 829.] An "inherently dangerous felony" is one
that involves a "high probability" of death. [ Smith at p.
1237.] Torture clearly qualifies as an inherently dangerous
felony. However, if this bill becomes law, the codification
will eliminate second-degree felony murder by torture because
if a prosecutor charges felony murder by torture and the jury
makes a finding of guilt, the result must be first-degree
murder based on the inclusion of torture in Penal Code Section

AB 1574
Page 4
189's Felony Murder list.
Where a
4)Is This Change Necessary? Is It Beneficial?
defendant has chosen to torture his victim and the victim
dies, the prosecutor - under the current law - may not be able
to prove that the defendant willfully, deliberately and with
premeditation intended to inflict extreme and prolonged pain
on the victim. Does torture belong on the list of felonies
which trigger application of the Felony Murder Rule? Yes.
The current list of underlying felonies which trigger the
application of the Felony Murder Rule includes:
a)

Arson,

http://info.sen.ca.gov/pub/99-00/bill/asm/ab_1551-1600/ab_1574_cfa_19990412_121435_asm_comm.html

Exhibit M
Page 1396

787

b)

Rape,

c)

Carjacking,

d)

Robbery,

e)

Burglary,

f)

Mayhem,

g)

Kidnapping,

h)

Train wrecking,

i)

A Penal Code Section 286 violation (sodomy),

j)
A Penal Code Section 288 violation (lewd and lascivious
act on a child under 14),
k)
A Penal Code Section 288a violation (oral copulation),
and
l)
A Penal Code Section 289 (penetration of genital or anal
opening by a foreign object).
(Penal Code Section 189.)
The extreme invasion of another person inherent in torture
will frequently be much more serious than the momentary fright
which a robbery victim might feel, particularly where the
robbery is a "strong arm" accomplished by nothing more than

AB 1574
Page 5
the physical advantage of the robber intimidating the victim
to give over property. To make another comparison, the pain
and suffering resulting from torture will usually exceed the
fright a burglary victim feels, even if the victim is present
at the time of the burglary. As with the robbery victim, the
burglary victim will recover his or her emotional balance
relatively quickly in contrast to the victim of torture. The
very nature of torture justifies putting it on the felony
murder list.
The California Attorneys for
5)Arguments in Opposition.
Criminal Justice states, "Penal Code Section 189 already
provides that murder perpetrated by means of torture is first
degree murder. Additionally, because torture is already a
separate felony under Penal Code section 206, any attempt to
perpetrate torture in which the victim dies, even where there
was no intent to kill, would be first degree murder under the
felony murder rule. There appears to be no need for this
bill."
REGISTERED SUPPORT / OPPOSITION

:

http://info.sen.ca.gov/pub/99-00/bill/asm/ab_1551-1600/ab_1574_cfa_19990412_121435_asm_comm.html

Exhibit M
Page 1397

788

Support
California Peace Officers' Association
California Police Chiefs' Association
Doris Tate Crime Victims Bureau
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
California State Sheriffs' Association
Analysis Prepared by

:

Harry Dorfman / PUB. S. / [phone]

http://info.sen.ca.gov/pub/99-00/bill/asm/ab_1551-1600/ab_1574_cfa_19990412_121435_asm_comm.html

Exhibit M
Page 1398

789

AB 3
Page

Date of Hearing:
Chief Counsel:

1

April 13, 1999
Harry M. Dorfman

ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 3 (Ashburn) - As Introduced:

December 7, 1999

SUMMARY : Expands the "special circumstances" list to authorize
imposition of the death penalty where the victim was under age
14, and the defendant knew or should have known that the victim
was under age 14.

EXISTING LAW

1)Provides that murder is the unlawful killing of a human being,
or a fetus, with malice aforethought. (Penal Code Section
187.)
2)Provides that malice aforethought may be express or implied.
Malice aforethought is express when the perpetrator manifests
a deliberate intention to take the life of another human.
Malice aforethought is implied when there was "no considerable
provocation" for the killing, or when the circumstances
surrounding the killing show "an abandoned and malignant
heart." (Penal Code Section 188.)
3)Classifies murder according to degrees, either first degree or
second degree. (Penal Code Section 189.)
4)Provides that first-degree murder includes murders perpetrated
by:
a)

Means of destructive device or explosive;

b)
Knowing use of ammunition designed primarily to
penetrate metal or armor;
c)

Poison;

d)

Lying in wait;

e)

Torture;

f)

Any kind of willful, deliberate, and premeditated

AB 3
Page

2

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Exhibit M
Page 1399

790

killing;
g)
Discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with
the intent to inflict death; and
h)
Any murder committed in the perpetration of, or attempt
to perpetrate:
i)

Arson;

ii)

Rape;

iii)

Carjacking;

iv)

Robbery;

v)

Burglary;

vi)

Mayhem;

vii)

Kidnapping;

viii)

Train wrecking;

ix)
x)

Sodomy;
Lewd or lascivious acts on a child under age 14;

xi)

Oral copulation; and,

xii)
Penetration of genital or anal openings with a
foreign object. (Penal Code Section 189.)
5)Provides that second-degree murders include all murders not
enumerated as first degree. (Penal Code Section 189.)
6)Specifies that first-degree murder without "special
circumstances" (Penal Code Section 190.2) is punishable in the
state prison for a term of 25-years-to-life. (Penal Code
Section 190.)
7)Specifies that first-degree murder with "special
circumstances" (Penal Code Section 190.2) is punishable by
death, or in the state prison for life without the possibility

AB 3
Page
of parole.

3

(Penal Code Section 190.)

8)Limits imposition of the death penalty to those first-degree
murder cases where the trial jury finds true at least one
"special circumstance." Currently, the Penal Code lists 21
separate categories of "special circumstances":

http://info.sen.ca.gov/pub/99-00/bill/asm/ab_0001-0050/ab_3_cfa_19990412_121023_asm_comm.html

Exhibit M
Page 1400

791

a)
The murder was intentional and carried out for financial
gain;
b)
The defendant was convicted previously of first- or
second-degree murder;
c)
The defendant, in the present proceeding, has been
convicted of more than one offense of first- or
second-degree murder;
d)
The murder was committed by means of a destructive
device planted, hidden or concealed in any place, area,
dwelling, building or structure;
e)
The murder was committed to avoid arrest or make an
escape;
f)
The murder was committed by means of a destructive
device that the defendant mailed or delivered, or attempted
to mail or deliver;
g)
The victim was a peace officer who was intentionally
killed while performing his/her duties and the defendant
knew or should have known that; or the peace officer/former
peace officer was intentionally killed in retaliation for
performing his/her duties;
h)
The victim was a federal law enforcement officer who was
intentionally killed (the same as Item (g) above);
i)
The victim was a firefighter who was intentionally
killed while performing his/her duties;
j)
The victim was a witness to a crime and was
intentionally killed to prevent his/her testimony, or
killed in retaliation for testifying;
k)

The victim was a local, state or federal prosecutor

AB 3
Page

4

murdered in retaliation for, or to prevent the performance
of, official duties;
l)
The victim was a local, state, or federal judge murdered
in retaliation for, or to prevent the performance of,
official duties;
m)
The victim was an elected or appointed official of
local, state or federal government murdered in retaliation
for, or to prevent the performance of, official duties;
n)
The murder was especially heinous, atrocious, or cruel,
"manifesting exceptional depravity." The preceding words
mean "a conscienceless or pitiless crime that is

http://info.sen.ca.gov/pub/99-00/bill/asm/ab_0001-0050/ab_3_cfa_19990412_121023_asm_comm.html

Exhibit M
Page 1401

792

unnecessarily torturous;"
o)
The defendant intentionally killed the victim while
lying in wait;
p)
The victim was intentionally killed because of his or
her race, color, religion, nationality, or country of
origin; and,
q)
The murder was committed while the defendant was engaged
in, or was an accomplice in, the commission of, attempted
commission of, or immediate flight after, committing or
attempting to commit the following crimes:
i)

Robbery;

ii)

Kidnapping;

iii)

Rape;

iv)

Sodomy;

v)
Performance of a lewd or lascivious act on a child
under age 14;
vi)

Oral copulation;

vii)

Burglary;

viii)

Arson;

AB 3
Page
ix)
x)

5

Train wrecking;
Mayhem;

xi)

Rape by instrument;

xii)

Carjacking;

xiii)
xiv)

Torture;
Poison;

xv)
The victim was a local, state or federal juror
murdered in retaliation for, or to prevent the
performance of his/her official duties; and,
xvi)
The murder was perpetrated by discharging a
firearm from a vehicle. (Penal Code Section 190.2.)
9)Requires three separate findings at the trial in order to
qualify for the death penalty: (a) guilty of first degree

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Exhibit M
Page 1402

793

murder, (b) a finding that at least one of the charged
"special circumstances" is true, and (c) the jury's
determination that death is appropriate rather than life in
prison without the possibility of parole (LWOP). The first
two findings occur when the jury deliberates at the close of
the "guilt phase." (Penal Code Sections 190.1 and 190.4) The
penalty determination takes place during the "penalty phase."
(Penal Code Section 190.3) If the jury fixes the penalty at
death, the judge still retains the power to reject the jury's
penalty verdict and impose LWOP. (Penal Code Section
190.4(e))
FISCAL EFFECT
COMMENTS

:

Unknown

:

"The murder of a child is a valid special
1)Author's Statement.
circumstance. For those most vulnerable, our children, it is
surprising that many child murderers are not eligible for life
in prison without parole. Even more surprising is that taking
the life of the child is not a special circumstance, which
allows the death penalty as a consequence.
"Current law (Penal Code Section 190.2) does not sufficiently

AB 3
Page

6

provide for the protection of our children and does not
provide an avenue to justice for murdered children and their
surviving parents/siblings. Present law actually places a
higher value on politicians, judges, district attorneys and
jurors than it does on children. If one of these adults is
murdered, their status makes the killer automatically eligible
for life without parole or the death penalty. While these
people are certainly worthy of protection, don't our children
deserve the same justice?
"AB 3 will set things right by making the murder of any child
who is under 14 years of age punishable by death or life in
prison without the possibility of parole. We have a
responsibility to protect our children, those least able to
protect themselves. It is imperative that we apply the
greatest possible punishment to those who prey on them. Our
first duty is to care for those who cannot protect themselves
and that means our children. There is absolutely no excuse
for taking a child's life and those who do should suffer the
most severe penalty we can give them.
In the words of the California Union of Safety Employees, '?A
society can be judged by how it values its children. By
recognizing that one of the vilest acts a person can commit is
the murder of a child, this bill reaffirms our commitment to
the protection of the most vulnerable among us.' "
2)Adding More Special Circumstances Raises Constitutional

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Exhibit M
Page 1403

794

Concerns.
Because the death penalty represents the
sovereign's greatest exercise of punitive power, the courts
take all necessary steps to make certain that it is applied
only to the most serious offenses. The Constitution does not
permit the application of the death penalty to crimes chosen
without sufficient reason; put another way, any statutory
scheme authorizing capital punishment must demonstrate a
meaningful basis for distinguishing between those who receive
death and those who do not. The United States Supreme Court
has said that "[a] capital sentencing scheme must?provide a
'meaningful basis for distinguishing the few cases in which
the penalty is imposed from the many cases in which it is
not.' "
Gregg v. Georgia , (1976) 428 U.S. 153, quoting Furman
v. Georgia , (1972) 408 U.S. 238, 313. At some point, the
courts will likely announce that the "special circumstances"
list contains too many crimes and sweeps too broadly, striking
it down on constitutional grounds and the Legislature will be

AB 3
Page

7

required to rewrite the special circumstances law to return it
to a judicially acceptable dimension.
According to material provided
3)Similar Laws in Other States.
by the author, "At least 11 other states have provisions in
their capital punishment statutes providing a punishment of
death or life in prison without parole for the killing of an
individual under a certain age: Alabama, Colorado, Florida,
Indiana, Louisiana, Ohio, Pennsylvania, Illinois, Mississippi,
Oklahoma and Wyoming. Most of these states use 12 years of
age. Although, Alabama uses 14 years and Wyoming uses 16
years."
Existing
4)Current Special Circumstances Law Protects Children.
law permits imposing the death penalty in a number of
situations where children are likely to be murder victims. If
the murder was especially heinous, atrocious or cruel,
"manifesting exceptional depravity," the defendant is eligible
for death pursuant to Penal Code Section 190.2(a)(14). If the
defendant intentionally killed the victim while lying in wait,
the defendant is death eligible pursuant to Penal Code Section
190.2(a)(15). If the victim was intentionally killed because
of his or her race, color, religion, nationality or country of
origin, the defendant is death eligible pursuant to Penal Code
Section 190.2(a)(16). If the defendant had previously been
convicted of first- or second-degree murder, the defendant is
death eligible pursuant to Penal Code Section 190.2(a)(2).
If the killing occurs during the commission of a specified
felony, the defendant is eligible for death, even if the
defendant did not have the intent to kill the victim. This
feature of special circumstances law is known as "felony
murder special circumstances." Once the prosecutor
establishes that the defendant had the specific intent to
commit the underlying felony offense and that the death

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Exhibit M
Page 1404

795

occurred as part of the felony offense, the defendant's intent
to kill is irrelevant. As one court has explained, "[u]nder
the felony-murder rule, defendant is strictly liable for his
killing of [the victim] committed in the attempt to perpetrate
a robbery and this is true whether the killing was
unintentional, accidental or wholly unforeseeable. [citations
omitted] The same is true as to the felony-murder special
circumstance."
People v. Parnell , (1993) 16 Cal.App.4th 862,
874. The California Supreme Court has clearly held that "when
the defendant is the actual killer, intent to kill is not an

AB 3
Page
element of?the felony-murder special circumstance?."
v. Dennis , (1998) 17 Cal.4th 468, 516.

8

People

The felonies which trigger special circumstances and which are
likely to involve a child victim are kidnapping, sodomy,
performance of a lewd or lascivious act on a child under age
14, oral copulation, burglary, arson, rape, rape by
instrument, torture, and the murder was perpetrated by
discharging a gun from a car. If a defendant commits one of
these underlying felonies and a child under age 14 dies, the
defendant is eligible for the death penalty without showing
any intent to kill.
One criticism of
5)Mistake of Fact Regarding the Victim's Age.
this bill is drawing the line at age 14. The American Civil
Liberties Union argues, "For example a person could receive
the death penalty for intentionally killing a child who is 13
years and 11 months old while the special circumstances would
not apply to the intentional killing of a child 14 years and 1
day old. We do not perceive a sufficiently compelling
justification for the state to protect children under 14 any
more so than children over 14." The legislative process
necessarily involves making distinctions; some people will be
subjected to the law's prescriptions while other will fall
outside the law's prescriptions. Why make 18 the age of
majority rather than 19? Or 21?
6)Constitutionality of Establishing a Victim Category Based on
So long as the Legislature chooses a class of
Age Alone.
victims not arbitrary and capricious and provides a meaningful
basis for distinguishing between the few cases in which death
is imposed and the many cases in which death is not imposed,
the courts will uphold the legislative choice. This bill
protects all children under 14 years, not just certain
children. (For example, the Legislature would act arbitrarily
and capriciously if it chose to protect only children under
age 14 who had brown eyes or lived in urban areas as opposed
to rural areas.) The Legislature has previously demonstrated
a concern for children of this age [e.g. Penal Code Sections
271, 271a, 288(a), 288(b)], and a court would most likely
determine that society has a compelling interest in protecting
those children as a group. Nor does such a law protecting

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Exhibit M
Page 1405

796

children fail because there is no comparable law protecting
senior citizens. Such an argument requires the Legislature to
craft a law for every identifiable category of citizens before

AB 3
Page

9

any law could be made effective; the Constitution does not
require so much.
7)Arguments in Support.
a)
The County of Orange Sheriff-Coroner Department states,
"Child victims and their families should be provided equal
justice under our laws and the persons who have perpetrated
the crimes against them should receive just punishment. .
. . "
b)
The Monterey County Sheriff-Corner-Public Administrator
states, "Working in Law Enforcement and being out on the
street for the past 28 years, I have seen all too often the
murderers of young children though punished, not to the
degree I feel they should have been, or plea bargained down
to a few years in jail. It is simply a travesty of justice
to allow this to happen and to continue to allow our Courts
to make these kinds of decisions."
The California Attorneys for
8)Arguments in Opposition.
Criminal Justice state, "By focusing solely on the age of the
victim, this special circumstance will expand application of
the death penalty to less aggravated murders because
aggravated offenses involving a victim under age 14 would
already qualify under an existing special circumstance. The
recent case of Matthew Cecchi, the 9-year-old boy murdered in
Oceanside is a case-in-point. The defendant in that case is
already facing the death penalty as a result of a
lying-in-wait special circumstance allegation.
"In states where this special circumstance has been applied, for
example in Alabama, this has resulted in a dramatic increase
in the number of teenagers facing the death penalty. Most
often, where victims are very young, their killers are also
very young. The death penalty has even less deterrent effect
on this group than on older offenders and, because of their
young age, they are considerably more susceptible to
redemption than older offenders. This special circumstance
will also result in the death penalty being applied in cases
of domestic violence where the parents were, in an
overwhelming number of cases, themselves abused as children?."
SB 31 (Peace), pending before the Senate
9)Related Legislation.
Public Safety Committee.

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Exhibit M
Page 1406

797

AB 3
Page

10

SB 1799 (Calderon), of the 1997-98
10)Prior Legislation.
Legislative Session, was placed on the Assembly Appropriations
Suspense File; AB 490 (Ashburn), of the 1997-98 Legislative
Session, was held without recommendation in Senate
Appropriations Committee; SB 1878 (Kopp), Chapter 629,
Statutes of 1998; SB 1079 (Calderon), of the 1997-98
Legislative Session, failed in Senate Public Safety Committee;
AB 1538 (Havice), of the 1997-98 Legislative Session, was
never heard by the Senate Public Safety Committee; and AB 1741
(Bordonaro), of the 1995-96 Legislative Session, failed
passage in Senate Committee on Criminal Procedure.
REGISTERED SUPPORT/OPPOSITION

:

Support
Doris Tate Crime Victims Bureau
Grandparents as Parents, Inc.
City of Poway
California District Attorney's Association
Los Angeles County Sheriff's Department
California State Sheriffs' Association
California Union of Safety Employees
City of San Diego
San Bernardino County Office of the Sheriff
Kern County Sheriff-Coroner
Monterey County Sheriff-Coroner
Orange County Sheriff-Coroner
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
One Private Citizen
Analysis Prepared by :

Harry Dorfman / PUB. S. / [phone]

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Exhibit M
Page 1407

798

AB 625
Page 1
Date of Hearing:
Counsel:

April 13, 1999
Bruce E. Chan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 625 (Olberg) - As Amended:

April 7, 1999

SUMMARY : Provides a person sentenced to death may give up his
or her right to an automatic appeal to the California Supreme
Court if the trial court determines that the waiver is made
knowingly, intelligently, and voluntarily. Specifically, this
bill:
1)Provides a person sentenced to death may give up his or her
right to an automatic appeal to the California Supreme Court
if the trial court determines that the waiver is made
knowingly, intelligently, and voluntarily.
2)Provides that if a person changes his or her mind after
waiving his or her right to appeal, a hearing must take place
where the court must determine whether the person may
re-institute his or her right to an automatic appeal.
EXISTING LAW

:

1)Provides that defendants may appeal their convictions pursuant
to the rules adopted by the Judicial Council. (Penal Code
Section 1239(a).)
2)Provides that when a judgment of death is entered, an appeal
is automatic, without requiring any action by either the
defendant or his or her counsel. (Penal Code Section
1239(b).)
3)Provides that an appeal to the Supreme Court stays the
execution of a death judgment. (Penal Code Section 1243.)
4)Provides that a death penalty defendant's trial attorney,
whether retained or court appointed, continues to represent
the client until appellate counsel is appointed. (Penal Code
Sections 1239(b) and 1240.1.)
FISCAL EFFECT

:

Unknown

AB 625
Page 2

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Exhibit M
Page 1408

799

COMMENTS

:

According to the author, AB 625 is needed
1)Author's Statement:
"to expedite the appeals process for death penalty cases."
2)Penal Code Section 1239 Was Enacted After A Mistaken
Execution : In 1935, condemned inmate Rush Griffin was
executed because the warden did not realize that the
defendant's appeal was pending. Griffin's lawyer had filed a
notice of appeal in superior court but the Supreme Court was
not notified until three days after the execution. The strong
public reaction to that occurrence precipitated the immediate
legislative response in Penal Code Section 1239(b). Today,
there is no possibility of confusion or inadvertence.
Procedurally, a defendant cannot be executed unless and until
his or her death judgment has been affirmed by the California
Supreme Court.
1)Automatic Appeals In Death Penalty Cases Has Been The Law For
Penal Code Section 1239(b) provides that
The Past 64 Years:
an appeal of a sentence of death is "automatically taken" to
the California Supreme Court. As explained in People v.
Stanworth (1969) 71 Cal.2d 820, 833, the statute "imposes a
duty upon this court 'to make an examination of the complete
record of the proceedings had in the trial court, to the end
that it be ascertained whether defendant was given a fair
trial.' . . . We cannot avoid or abdicate this duty merely
because defendant desires to waive the right provided for
him."
1)Automatic Appeals Ensure the Reliability of Death Judgements:
Current procedure ensures that no person is executed in
California without full review of the appeal of his or her
death judgment by the California Supreme Court. The criminal
justice system has an independent, and overriding, interest in
ensuring that any death sentence imposed and carried out is
found legally valid. As the New Jersey Supreme Court recently
observed, "The public has an interest in the reliability and
integrity of a death sentence decision that transcends the
preferences of individual defendants."
State v. Martini , 144
N.J. 603, 605, 677 A.2d 1106, 1107 (1996). The justice system
is not intended to permit a criminal defendant to choose his
or her own sentence, particularly where the sentence amounts
to state-assisted suicide. See Commonwealth v. McKenna (1978)

AB 625
Page 3
476 Pa. 428, 441, 383 A.2d 174, 181. Since 1935, the
reversals on appeal by the California Supreme Court are
evidence of the safeguard of mandatory review.
2)Current Law Has Protected the California Death Penalty Statute
Current statute has served to
from Constitutional Challenges:
protect the constitutionality of California death penalty

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Exhibit M
Page 1409

800

statutory scheme. The existence of an automatic appeal from a
judgment of death was an important component of the United
States Supreme Court's decision to uphold the
constitutionality of the death penalty. [See Gregg v. Georgia
(1976) 428 U.S. 153, 198 ("As an important additional
safeguard against arbitrariness and caprice, the Georgia
statutory scheme provides for an automatic appeal of all death
sentences to the State's Supreme Court.").] In Pulley v.
Harris (1984) 465 U.S. 37, 53, the Supreme Court specifically
pointed to the existence of an automatic appeal as one
component supporting the constitutionality of California's
death penalty. [See also Justice Stevens' concurring opinion,
Pulley v. Harris , 465 U.S. at 55, suggesting that some form of
meaningful appellate review is constitutionally required, and
Parker v. Dugger (1991) 498 U.S. 308, 321 ("We have emphasized
repeatedly the crucial role of meaningful appellate review in
ensuring that the death penalty is not imposed arbitrarily or
irrationally.")]
3)37 Of 38 States That Impose the Death Penalty Provide for
This bill represents a minority position
Non-Waivable Review:
regarding the appeal of death judgments. 38 states have death
penalty statutes; 37 of those provide for non-waivable review
of death judgments. [See Note, "Voluntary Executions," 50
Stan. L. Rev. 1897 (1998).]
4)Permitting Waiver Of The Automatic Appeal Raises Questions
About The Constitutionality Of California's Death Penalty
It should be noted that many legal observers believe
Statute:
California is already close to having an unconstitutional
death penalty law. California's statute is so broad that a
high percentage of all first-degree murders are death
eligible, thereby eliminating the narrowing function that its
special circumstances are supposed to provide. [See Shatz and
Rivkind, "The California Death Penalty Scheme: Requiem for
Furman," 72 N.Y.U.L. Rev. 1283 (1997).] California has no
proportionality review. (See Pulley v. Harris , supra .)
California permits unintentional killings to be death

AB 625
Page 4
eligible, making it only one of seven states that permit
execution without any finding of criminal intent with respect
to the homicide itself. [See Hopkins v. Reeves (1998) 524
U.S. 88, ___, 141 L.Ed.2d 76, 87 (indicating that the mens rea
requirement must be satisfied at some point in the
proceedings); see also Shatz and Rivkind, supra , at 1319, n.
201.] California has no clear error rule permitting a
reviewing court to reach issues despite a lack of objection in
the trial court. Removing a true automatic appeal may render
California's death penalty scheme unconstitutional.
5)How Will Trial Courts Determine if A Defendant's Waiver Was
It would be extremely difficult to establish that the
Valid:
defendant's waiver was made knowingly, intelligently, and

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Exhibit M
Page 1410

801

voluntarily. The time of being sentenced to death can be a
moment of extraordinary stress. The fact that the waiver
occurs at such a moment calls into question the voluntary
nature of the waiver.
Beyond that, the trial court must explain to the defendant the
full ramifications of his or her waiver in order for the
defendant's waiver be made knowingly and intelligently and
entails explaining not only the appellate rights the defendant
is relinquishing but also the related rights of federal review
which are compromised due to the defendant failing to exhaust
state remedies. An appellate attorney familiar with state and
federal law will have to advise the defendant. Trial counsel
would have a conflict of interest playing such a role as trial
counsel could not inform the defendant about the prospects of
a claim of ineffective assistance of counsel on either
succeeding appeal or habeas corpus. Will the defendant have
an attorney qualified to advise the defendant of the full
consequences of this decision? Will the defendant understand
those consequences? Under such circumstances, it is doubtful
whether a waiver will withstand later scrutiny.
6)Defendants Will Change Their Minds - Prompting More Litigation
The
And Not Accomplishing The Stated Purpose Of This Bill:
Judicial Council of California states, "?the bill is intended
to expedite the appeals process for death penalty cases. The
Judicial Council believes the bill would have the opposite
effect.
"While a defendant may on occasion indicate a desire to bypass
all appeal processes, there is a significant likelihood that,

AB 625
Page 5
due to the gravity and finality of the judgment of death, the
defendant will at some point change his or her mind. The
council is concerned about two possible results of such a
change of heart. First, it would be tremendously more
difficult to prepare the necessary trial records weeks or
months after the entry of the judgment of death. Second,
defendants would likely engage in far more writ procedures on
grounds that the waiver was in fact not made knowingly,
intelligently, or voluntarily.
"The measure, therefore, would create more problems than it
would solve, and could lead to greater delays in the death
penalty process than exist today."
7)A Waiver Of Appeals May Result In Hearings Regarding Mental
If the defendant does attempt to waive his or her
Competency:
appeal, that action will likely precipitate a hearing on the
defendant's mental competency. As the Supreme Court observed
in Whitmore v. Arkansas (1990) 495 U.S. 149, 165, "Although we
are not here faced with the question whether a hearing on
mental competency is required by the United States

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Exhibit M
Page 1411

802

Constitution whenever a capital defendant desires to terminate
further proceedings, such a hearing will obviously bear on
whether the defendant is able to proceed on his behalf." In
addition, attorneys and other interested parties may intervene
and challenge the defendant's competency.
REGISTERED SUPPORT / OPPOSITION

:

Support
California
California
California
Doris Tate

Police Chiefs Association
Police Officers Association
State Sheriffs' Association
Crime Victims Bureau

Opposition
American Civil Liberties Union
Attorney General's Office
California Attorneys for Criminal Justice
California Judges Association
California Public Defenders Association
Judicial Council of California
Law Offices of Cristina Yu

AB 625
Page 6
The California Appellate Project
Analysis Prepared by

:

Bruce E. Chan / PUB. S. / [phone]

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Exhibit M
Page 1412

803

-----------------------------------------------------------|SENATE RULES COMMITTEE
|
AB 1574|
|Office of Senate Floor Analyses
|
|
|1020 N Street, Suite 524
|
|
|[phone]
Fax: (916) |
|
|327-4478
|
|
-----------------------------------------------------------THIRD READING
Bill No:
Author:
Amended:
Vote:

AB 1574
Corbett (D)
As introduced
27

SENATE PUBLIC SAFETY COMMITTEE : 4-0, 7/13/99
AYES: Vasconcellos, McPherson, Polanco, Rainey
NOT VOTING: Burton, Johnston
SENATE APPROPRIATIONS COMMITTEE : 9-1, 9/1/99
AYES: Bowen, Escutia, Johnson, Karnette, Kelley, Leslie,
McPherson, Mountjoy, Perata
NOES: Johnston
NOT VOTING: Alpert, Burton, Vasconcellos
ASSEMBLY FLOOR
SUBJECT
SOURCE

:
:

:

74-3, 5/27/99 - See last page for vote

First degree murder:

torture

Los Angeles District Attorney's Office

This bill would expand the felony murder rule to
DIGEST :
include torture and thereby provide that a murder, which
occurs when a person had the intent to torture, but no
premeditation to kill, is first degree murder.
Existing law provides that every person who,
ANALYSIS :
with the intent to cause cruel or extreme pain and
suffering for the purpose of revenge, extortion,
persuasion, or for any sadistic purpose, inflicts great
bodily injury upon the person of another, is guilty of
CONTINUED

2

AB 1574
Page

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Exhibit M
Page 1413

804

torture. The crime of torture does not require any proof
that the victim suffered pain.
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. Torture
is one of the special circumstances.
Existing law provides that a premeditated murder
perpetrated by means of torture is murder in the first
degree.
Existing law provides that any murder that is perpetrated
by specified means, including arson, rape, carjacking,
robbery, burglary, mayhem and kidnapping or by any other
kind of willful, deliberate premeditated killing is murder
in the first degree. All other kinds of murder are murder
in the second degree.
This bill adds any murder committed during torture to the
list of specified murders that constitute first degree
felony murder.
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)
which requires no premeditation or deliberation. 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

3

AB 1574
Page

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 device concealed in a building; murder
committed to avoid a lawful arrest; the victim was a peace

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Exhibit M
Page 1414

805

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 intentional and involved
torture; 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.
Under existing law if a victim is murdered while being
tortured:
--And a jury finds that there was intent to kill then the
defendant would be guilty of first degree murder and, if
a special circumstance of torture was charged, the
defendant would be subject to the death penalty or life
without parole.
--And a jury finds that the murder was premeditated then a
defendant is guilty of first degree murder and subject to
25 to life.
--And a jury finds that the murder was neither intentional
nor premeditated then the defendant is guilty of second
degree murder and subject to 15 to life.
This bill expands the felony murder rule by adding
"torture" to the list of felonies, which constitute first
degree felony murder. Thus, if a victim dies while being
tortured, even if there was no intent to kill and no
premeditation or deliberation to kill then the defendant is
guilty of first degree murder.
FISCAL EFFECT :
Local: Yes

Appropriation:

No

Fiscal Com.:

Yes

AB 1574
Page

4
Fiscal Impact (in thousands)
Major Provisions
2001-02
2000-01

Fund

19999-2000

Incarceration
Unknown increased costs,
potentiallyGeneral
in excess of $150 annually for
incarceration in state prison
SUPPORT
Committee

:

writing)

(Verified

7/13/99) (per Senate Public Safety

analysis) (unable to re-verify at time of

California State Sheriffs' Association

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Exhibit M
Page 1415

806

Doris Tate Crime Victims Bureau
California Peace Officers' Association
California Police Chiefs' Association
(Verified 7/13/99) (per Senate Public
OPPOSITION :
Safety Committee
analysis) (unable to re-verify at time of
writing)
California Public Defenders Association
According to the Los Angeles
ARGUMENTS IN SUPPORT :
District Attorney's Office, "it is estimated that the Los
Angeles District Attorney's Office handles 20 torture
murder cases per year. These cases have involved victims
who have been set afire or victims who have been abused or
mutilated by sexual deviates. Many cases involve child
victims who have been abused repeatedly over a long period
of time.
"Murder in perpetration of robbery, rape, burglary or
other similar crimes is automatically first degree
felony murder. However, a person who kills in the
perpetration of the crime of torture can only be
convicted of second degree felony murder.
"Recently, a miscarriage of justice occurred in People
v. Cauchi , when the jury convicted the defendant of

5

AB 1574
Page

torturing a four year old to death, but nevertheless
found that there was no "premeditation or deliberation"
and returned a verdict of second not first degree
murder.
"This bill corrects the above anomaly and ensures that when
a murder occurs during a crime which meets the statutory
definition of "torture," that society imposes upon the
perpetrator the same penalty which current law applies to
murder in perpetration of robbery, rape or burglary."
California Public Defenders
ARGUMENTS IN OPPOSITION :
Association "opposes this bill primarily because it is
unnecessary. Murder perpetrated by means of torture is
already first degree murder under current law.
Moreover, all felony murders require the commission of an
independent felony. In contrast is the means by which the
death is accomplished, not an independent felony that
someone happens to be committing at the time of killing.
This bill would create immense confusion and result in a
huge amount of litigation in an attempt to reconcile these
mutually exclusive concepts."

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Exhibit M
Page 1416

807

ASSEMBLY FLOOR :
AYES: Aanestad, Ackerman, Alquist, Ashburn, Baldwin,
Bates, Battin, Baugh, Brewer, Briggs, Calderon, Campbell,
Cardenas, Cardoza, Cedillo, Corbett, Correa, Cox,
Cunneen, Davis, Dickerson, Ducheny, Dutra, Firebaugh,
Florez, Frusetta, Gallegos, Granlund, Havice, Hertzberg,
Honda, House, Jackson, Kaloogian, Keeley, Knox, Kuehl,
Leach, Lempert, Leonard, Longville, Lowenthal, Machado,
Maddox, Maldonado, Margett, McClintock, Nakano, Olberg,
Oller, Robert Pacheco, Rod Pacheco, Papan, Pescetti,
Reyes, Romero, Runner, Scott, Shelley, Soto, Steinberg,
Strickland, Strom-Martin, Thompson, Thomson, Torlakson,
Vincent, Wayne, Wesson, Wiggins, Wildman, Wright, Zettel,
Villaraigosa
NOES: Aroner, Migden, Washington
NOT VOTING: Bock, Floyd, Mazzoni
RJG:sl

9/2/99

Senate Floor Analyses

AB 1574
Page

6
SUPPORT/OPPOSITION:
****

END

SEE ABOVE

****

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Exhibit M
Page 1417

808

Exhibit M
Page 1418

809

Exhibit M
Page 1419

810

Exhibit M
Page 1420

811

Exhibit M
Page 1421

812

Exhibit M
Page 1422

813

Exhibit M
Page 1423

814

Exhibit M
Page 1424

815

Exhibit M
Page 1425

816

Exhibit M
Page 1426

817

BILL NUMBER: SB 1878
BILL
TEXT

CHAPTERED

CHAPTER
629
FILED WITH SECRETARY OF STATE
SEPTEMBER 21, 1998
APPROVED BY GOVERNOR
SEPTEMBER 19, 1998
PASSED THE SENATE
AUGUST 30, 1998
PASSED THE ASSEMBLY
AUGUST 27, 1998
AMENDED IN ASSEMBLY
AUGUST 24, 1998
AMENDED IN ASSEMBLY
JULY 16, 1998
AMENDED IN ASSEMBLY
JUNE 25, 1998
AMENDED IN SENATE
MAY 20, 1998
AMENDED IN SENATE
APRIL 28, 1998
INTRODUCED BY
Senator Kopp
(Principal coauthor: Senator Schiff)
FEBRUARY 19, 1998
An act to amend Section 190.2 of the Penal Code, relating to
murder.

LEGISLATIVE

COUNSEL'S DIGEST

SB 1878, Kopp. Murder: special circumstances.
(1) Existing law, as amended by initiative statute, provides that
the penalty 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, where one or more special
circumstances have been charged and found to be true. In this
connection, existing law provides that a first degree murder
committed while lying in wait, and a murder committed in the
commission of specified felonies, including kidnapping and arson, are
special circumstances for sentencing purposes.
This bill would redefine lying in wait to instead provide that a
defendant who intentionally kills a victim by means of lying in wait
is subject to these provisions. The bill would also provide that a
defendant who is shown to have committed the elements of kidnapping
or arson in connection with a murder, is subject to these provisions
if there is specific intent to kill, notwithstanding the fact that
the kidnapping or arson was committed primarily or solely for the
purpose of facilitating the murder.
(2) The bill would state that the Legislature's intent in enacting
these provisions is to create a statutory exception to the
"independent purpose" doctrine, as established by specified cases.
(3) The bill would provide that it shall become effective only
when submitted to, and approved by, the voters of California.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature in enacting
subparagraph (M) of paragraph (17) of subdivision (a) of Section
190.2 to create a statutory exception to the "independent purpose"
requirement of People v. Weidert (1985) 39 Cal. 3d 836 and People v.
Green (1980) 27 Cal. 3d 1, for the special circumstances of
kidnapping and arson, when specific intent to kill is proven.
SEC. 2. Section 190.2 of the Penal Code is amended to read:
190.2. (a) The penalty for a defendant who is found guilty of

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Exhibit M
Page 1427

818

murder in the first degree is death or imprisonment in the state
prison for life without the possibility of parole if one or more of
the following special circumstances has been found under Section
190.4 to be true:
(1) The murder was intentional and carried out for financial gain.
(2) The defendant was convicted previously of murder in the first
or second degree. For the purpose of this paragraph, an offense
committed in another jurisdiction, which if committed in California
would be punishable as first or second degree murder, shall be deemed
murder in the first or second degree.
(3) The defendant, in this proceeding, has been convicted of more
than one offense of murder in the first or second degree.
(4) The murder was committed by means of a destructive device,
bomb, or explosive planted, hidden, or concealed in any place, area,
dwelling, building, or structure, and the defendant knew, or
reasonably should have known, that his or her act or acts would
create a great risk of death to one or more human beings.
(5) The murder was committed for the purpose of avoiding or
preventing a lawful arrest, or perfecting or attempting to perfect,
an escape from lawful custody.
(6) The murder was committed by means of a destructive device,
bomb, or explosive that the defendant mailed or delivered, attempted
to mail or deliver, or caused to be mailed or delivered, and the
defendant knew, or reasonably should have known, that his or her act
or acts would create a great risk of death to one or more human
beings.
(7) The victim was a peace officer, as defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged
in the course of the performance of his or her duties, was
intentionally killed, and the defendant knew, or reasonably should
have known, that the victim was a peace officer engaged in the
performance of his or her duties; or the victim was a peace officer,
as defined in the above-enumerated sections, or a former peace
officer under any of those sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
(8) The victim was a federal law enforcement officer or agent who,
while engaged in the course of the performance of his or her duties,
was intentionally killed, and the defendant knew, or reasonably
should have known, that the victim was a federal law enforcement
officer or agent engaged in the performance of his or her duties; or
the victim was a federal law enforcement officer or agent, and was
intentionally killed in retaliation for the performance of his or her
official duties.
(9) The victim was a firefighter, as defined in Section 245.1,
who, while engaged in the course of the performance of his or her
duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a firefighter
engaged in the performance of his or her duties.
(10) The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in any
criminal or juvenile proceeding, and the killing was not committed
during the commission or attempted commission, of the crime to which
he or she was a witness; or the victim was a witness to a crime and
was intentionally killed in retaliation for his or her testimony in
any criminal or juvenile proceeding. As used in this paragraph,
"juvenile proceeding" means a proceeding brought pursuant to Section
602 or 707 of the Welfare and Institutions Code.
(11) The victim was a prosecutor or assistant prosecutor or a
former prosecutor or assistant prosecutor of any local or state
prosecutor's office in this or any other state, or of a federal
prosecutor's office, and the murder was intentionally carried out in

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Page 1428

819

retaliation for, or to prevent the performance of, the victim's
official duties.
(12) The victim was a judge or former judge of any court of record
in the local, state, or federal system in this or any other state,
and the murder was intentionally carried out in retaliation for, or
to prevent the performance of, the victim's official duties.
(13) The victim was an elected or appointed official or former
official of the federal government, or of any local or state
government of this or any other state, and the killing was
intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
(14) The murder was especially heinous, atrocious, or cruel,
manifesting exceptional depravity. As used in this section, the
phrase "especially heinous, atrocious, or cruel, manifesting
exceptional depravity" means a conscienceless or pitiless crime that
is unnecessarily torturous to the victim.
(15) The defendant intentionally killed the victim by means of
lying in wait.
(16) The victim was intentionally killed because of his or her
race, color, religion, nationality, or country of origin.
(17) The murder was committed while the defendant was engaged in,
or was an accomplice in, the commission of, attempted commission of,
or the immediate flight after committing, or attempting to commit,
the following felonies:
(A) Robbery in violation of Section 211 or 212.5.
(B) Kidnapping in violation of Section 207, 209, or 209.5.
(C) Rape in violation of Section 261.
(D) Sodomy in violation of Section 286.
(E) The performance of a lewd or lascivious act upon the person of
a child under the age of 14 years in violation of Section 288.
(F) Oral copulation in violation of Section 288a.
(G) Burglary in the first or second degree in violation of Section
460.
(H) Arson in violation of subdivision (b) of Section 451.
(I) Train wrecking in violation of Section 219.
(J) Mayhem in violation of Section 203.
(K) Rape by instrument in violation of Section 289.
(L) Carjacking, as defined in Section 215.
(M) To prove the special circumstances of kidnapping in
subparagraph (B), or arson in subparagraph (H), if there is specific
intent to kill, it is only required that there be proof of the
elements of those felonies. If so established, those two special
circumstances are proven even if the felony of kidnapping or arson is
committed primarily or solely for the purpose of facilitating the
murder.
(18) The murder was intentional and involved the infliction of
torture.
(19) The defendant intentionally killed the victim by the
administration of poison.
(20) The victim was a juror in any court of record in the local,
state, or federal system in this or any other state, and the murder
was intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
(21) The murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another
person or persons outside the vehicle with the intent to inflict
death. For purposes of this paragraph, "motor vehicle" means any
vehicle as defined in Section 415 of the Vehicle Code.
(b) Unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an
actual killer, as to whom the special circumstance has been found to
be true under Section 190.4, need not have had any intent to kill at
the time of the commission of the offense which is the basis of the

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Exhibit M
Page 1429

820

special circumstance in order to suffer death or confinement in the
state prison for life without the possibility of parole.
(c) Every person, not the actual killer, who, with the intent to
kill, aids, abets, counsels, commands, induces, solicits, requests,
or assists any actor in the commission of murder in the first degree
shall be punished by death or imprisonment in the state prison for
life without the possibility of parole if one or more of the special
circumstances enumerated in subdivision (a) has been found to be true
under Section 190.4.
(d) Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of a felony enumerated in
paragraph (17) of subdivision (a) which results in the death of some
person or persons, and who is found guilty of murder in the first
degree therefor, shall be punished by death or imprisonment in the
state prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.
The penalty shall be determined as provided in this section and
Sections 190.1, 190.3, 190.4, and 190.5.
SEC. 3. Section 1 of this act affects an initiative statute and
shall become effective only when submitted to, and approved by, the
voters of California, pursuant to subdivision (c) of Section 10 of
Article II of the California Constitution.

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Exhibit M
Page 1430

821

Exhibit M
Page 1431

822

Exhibit M
Page 1432

823

Exhibit M
Page 1433

824

Exhibit M
Page 1434

825

Exhibit M
Page 1435

826

Exhibit M
Page 1436

827

Exhibit M
Page 1437

828

Exhibit M
Page 1438

829

Exhibit M
Page 1439

830

Exhibit M
Page 1440

831

Exhibit M
Page 1441

832

Exhibit M
Page 1442

833

Exhibit M
Page 1443

834

Exhibit M
Page 1444

835

Exhibit M
Page 1445

836

Exhibit M
Page 1446

837

Exhibit M
Page 1447

838

Exhibit M
Page 1448

839

Exhibit M
Page 1449

840

Exhibit M
Page 1450

841

Exhibit M
Page 1451

842

Exhibit M
Page 1452

843

Exhibit M
Page 1453

844

Exhibit M
Page 1454

845

Exhibit M
Page 1455

846

Exhibit M
Page 1456

847

Exhibit M
Page 1457

848

Exhibit M
Page 1458

849

Exhibit M
Page 1459

850

Exhibit M
Page 1460

851

Exhibit M
Page 1461

852

Exhibit M
Page 1462

853

Exhibit M
Page 1463

854

Exhibit M
Page 1464

855

Exhibit M
Page 1465

856

Exhibit M
Page 1466

857

Exhibit M
Page 1467

858

Exhibit M
Page 1468

859

Exhibit M
Page 1469

860

Exhibit M
Page 1470

861

Exhibit M
Page 1471

862

Exhibit M
Page 1472

863

Exhibit M
Page 1473

864

Exhibit M
Page 1474

865

Exhibit M
Page 1475

866

Exhibit M
Page 1476

867

Exhibit M
Page 1477

868

Exhibit M
Page 1478

869

Exhibit M
Page 1479

870

Exhibit M
Page 1480

871

Exhibit M
Page 1481

872

Exhibit M
Page 1482

873

Exhibit M
Page 1483

874

Exhibit M
Page 1484

875

Exhibit M
Page 1485

876

Exhibit M
Page 1486

877

Exhibit M
Page 1487

878

SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair
2001-2002 Regular Session

A
B
1
8
3
8

AB 1838 (Hertzberg)
As Amended March 7, 2002
Hearing date: June 18, 2002
Penal Code (URGENCY)
JM:br

WEAPONS OF MASS DESTRUCTION - ADDITIONAL CRIMES AND PENALTIES
HISTORY
Source:

Los Angeles County District Attorney

Prior Legislation: AB 140 (Hertzberg-Alarcon) - Ch. 573, Stats.
1999
Support: Riverside Sheriff's Association; Association for Los
Angeles Deputy Sheriffs; Los Angeles Police Protective
League; Peace Officers Research Association of
California; California State Sheriffs' Association;
California Highway Patrol; Attorney General;
California District Attorneys Association (co-sponsor)
Opposition:American Civil Liberties Union (unless amended to be
consistent with SB 1287 (Alarcon))
[NOTE: THIS ANALYSIS REFLECTS AMENDMENTS DISCUSSED AMONG THE
SPONSOR, COMMITTEE STAFF, AND REPRESENTATIVES OF THE AUTHOR'S
OFFICE. THESE AMENDMENTS WILL CONFORM THIS BILL TO SB 1287
(ALARCON) AS TO THE SECTIONS SHARED BY THE TWO BILLS.]
KEY ISSUES

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AB 1838 (Hertzberg)

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Page 1488

879

Page 2
SHOULD ANY MURDER COMMITTED THROUGH USE OF A WMD BE DEFINED AS
FIRST DEGREE?
SHOULD A CONVICTION FOR USE OF A WEAPON OF MASS DESTRUCTION
(WMD) BE CLASSIFIED AS A SERIOUS AND A VIOLENT FELONY?
(CONTINUED)

SHOULD THE DEFINITION OF A WEAPON OF MASS DESTRUCTION (WMD) INCLUDE
RESTRICTED BIOLOGICAL AGENTS, AIRCRAFT, VESSELS OR SPECIFIED
VEHICLES WHEN USED AS DESTRUCTIVE WEAPONS?
SHOULD "USED DESTRUCTIVE WEAPON" BE DEFINED TO MEAN USED WITH INTENT
TO CAUSE WIDESPREAD GREAT BODILY INJURY (GBI) OR DEATH BY A FIRE OR
EXPLOSION, RELEASE OF CHEMICAL, BIOLOGICAL, NUCLEAR OR RADIOACTIVE
AGENT?
SHOULD THE CRIME OF USE OF A WMD AGAINST ANIMALS OR CROPS BE AMENDED
TO INCLUDE SEED AND SEED STOCK?
SHOULD PENALTIES FOR UNLAWFUL POSSESSION, DEVELOPMENT, TRANSFER,
ETC. OF A WMD BE RAISED FROM 3, 6 OR 9 YEARS IN PRISON, TO 4, 8, OR
12 YEARS?
SHOULD THE CRIME OF USE OF A WMD TO DAMAGE OR DISRUPT THE FOOD OR
WATER SUPPLY BE EXTENDED TO COVER A "SOURCE OF DRINKING WATER" AND
PENALTIES RAISED FROM 4, 8, OR 12 YEARS IN PRISON, TO 5, 8 OR 12
YEARS?
SHOULD THE CRIME OF POSSESSING ANY RESTRICTED BIOLOGICAL AGENT BE
EXTENDED TO A MICROORGANISM, VIRUS, INFECTIOUS SUBSTANCE, OR
BIOLOGICAL PRODUCT THAT HAS THE SAME, OR SUBSTANTIALLY SIMILAR,
CHARACTERISTICS TO RESTRICTED AGENTS UNDER EXISTING LAW (PEN. CODE
11418.5), SUCH AS ANTHRAX, EBOLA, PLAGUE, SMALLPOX, BOTULINUM
TOXINS, ETC?
SHOULD THE LEGISLATURE CREATE A NEW "WOBBLER" - DRAWN FROM THE CRIME

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AB 1838 (Hertzberg)
Page 3
OF PLACING A FACSIMILE BOMB - FOR SENDING OR PLACING A FALSE OR
FACSIMILE WMD THAT CAUSES SUSTAINED FEAR, AND SHOULD SUCH A CRIME BE

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Exhibit M
Page 1489

880

A MISDEMEANOR IN THE ABSENCE OF SUSTAINED FEAR?
SHOULD CHANGES BE MADE IN DEFINITIONS IN AND ELEMENTS OF CRIMES
RELATED TO MAKING CREDIBLE THREAT TO USE A WMD AND THE CRIME CREATED
BY THIS BILL OF PLACING OR SENDING A FACSIMILE WMD - TO EVACUATION
OF A RESIDENCE, SCHOOL OR BUSINESS, IN ADDITION TO THE EXISTING
REFERENCE TO ISOLATION OR QUARANTINE?

PURPOSE
The purposes of this bill are to (1) define use of a WMD as a
serious and violent felony; (2) define murder by use of a WMD as
first degree murder; (3) require a sentence of life without
parole (LWOP) for use of a WMD in a form that may cause
widespread death or injury and that causes death or great bodily
injury to any person; (4) expand the definitions concerning
weapons of mass destruction (WMD), particularly as concerns
water and food supplies; (5) increase penalties for use of a
WMD; (6) expand the crime of possessing restricted biological
agents and infectious substances; (7) expand and clarify the
crime of making a credible threat to use a WMD; and (8) create
the crime of making a false WMD report or placing a facsimile
WMD - a crime similar to an existing law concerning false bombs.
Homicide and Related Provisions
Existing law defines murder as the unlawful killing of a human
being with malice aforethought. (Pen. Code 187.) Malice is
express "when there is manifested a deliberate intentionally" .
. . to kill another person. Malice is implied when the killing
resulted from an intentional act; the natural consequences of
the act are dangerous to human life; and the act was
deliberately performed with knowledge of the danger to, and with
conscious disregard for, human life. (People v. Dellinger
(1989) 49 Cal.3d 1212, 1222.)

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AB 1838 (Hertzberg)
Page 4

Existing law provides that all murder which is perpetrated by
means of a destructive device or explosive, knowing use of
ammunition designed primarily to penetrate metal or armor,
poison, lying in wait, torture, or by any other kind of willful,
deliberate, and premeditated killing, or which is committed in
the perpetration of, or attempt to perpetrate, arson, rape,

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Page 1490

881

carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, or torture, specified sex offenses or any murder which
is perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person outside of the vehicle
with the intent to inflict death, is murder of the first degree.
All other kinds of murders are of the second degree. (Penal
Code 189.)
Existing law provides that murder in the first degree
(deliberate and premeditated murder) is punished by death or
life in prison without possibility of parole where special
circumstances are shown. Otherwise, first degree murder is
punished by a prison sentence of 25 years to life. Murder in
the second degree is generally punished by a term of 15 years to
life in state prison or by a term of life without parole if the
defendant has previously been convicted of murder or the murder
of a peace officer. (Pen. Code 190, 190.05, 190.2.)
Existing law includes a lengthy list of special circumstances
applicable to first-degree murder. These factors include law
enforcement or firefighter victim, multiple victims, crime
witness victim, victim was juror, judge, prosecutor, government
official, lying in wait, delivery of destructive device,
financial gain, race, nationality, etc. of victim. (Pen. Code
190.2.)
This bill defines any murder perpetrated by means of a WMD as
first degree murder.
This bill provides that use of a WMD in a form that may cause
widespread great bodily injury and death, and which does cause
great bodily injury or death, shall be punished by imprisonment
in the state prison for life without the possibility of parole.

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AB 1838 (Hertzberg)
Page 5

Serious and Violent Felonies
Existing law defines specified felonies as serious or violent,
with various consequences flowing from such a definition or
designation. The list of serious felonies is set out Penal
Code section 1192.7; violent felonies are found in Penal Code
section 667.5, subdivision (c).
? Any serious or violent felony, as defined on March 8, 2002 the effective date of Proposition 21 of the March 2000
Primary Election - constitute qualifying prior convictions

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Exhibit M
Page 1491

882

under the Three Strikes law. Felonies defined as serious or
violent past that date will not constitute prior strikes
unless and until the applicable provisions from Proposition
21 are amended.
? Enhancement of 5 years in serious felony sentence for every
prior serious felony conviction. (Pen. Code 667, subd.
(a).)
? Enhancement of 3 years in violent felony sentence for each
prior violent felony conviction. (Pen. Code 667.5, subd.
(a).)
? Inmates convicted of violent felonies may earn no more than
15% sentencing credit to reduce their prison terms.
? Plea bargaining is limited for serious felonies to cases in
which the prosecution may be unable to obtain or present
sufficient evidence or where the bargain would not change the
sentence the defendant would otherwise receive. (Pen. Code
1192.7, subds (a)-(b).)
? The serious and violent felony lists set forth in Penal Code
sections 1192.7 and 667.5 is employed in a number of other
code sections. The following examples illustrate the use of
this list for multiple purposes:
Prohibition from employment by a public or private

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AB 1838 (Hertzberg)
Page 6
elementary or high school
Prohibition from employment by any school district
Increased scrutiny in restraining orders
Denial of specified teaching credentials
Limitation of probation in certain cases
Limitation of the application of Proposition 36 in
certain cases
Specified distributions of bail forfeitures
Limitations on psychiatric placements
Restrictions on bail and non-bail release
Parole restrictions
Restrictions on placement of children in dependency
cases
5-year enhancements in current serious felony sentence
for each prior
3-year enhancement in current violent felony sentence
for each prior

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Exhibit M
Page 1492

883

Sentence credits limited to 15% for inmates convicted of
violent crimes
This bill adds offenses involving the use of a WMD to the list
of serious and violent crimes.
Weapons of Mass Destruction - Definitions
Existing law defines "weapon of mass destruction" (WMD) to
include chemical warfare agents, weaponized biological warfare
or biological agents, nuclear agents, radiological agents, or
the intentional release of industrial agents as a weapon. The
law defines each category of weapon thus:
Chemical warfare agents include Tabun, Sarin, Soman, Choking
Agents, Phosgene and Diphosgene, Blood Agents, Hydrogen
Cyanide, Cyanogen Chloride, Arsine, and Blister Agents.
Weaponized Biological agents include weaponized pathogens such
as bacteria, viruses, yeasts, fungi and rickettsia.
Nuclear or radiological agents include any improvised nuclear
device (IND), radiological dispersal device (RDD), or any
simple radiological dispersal device (SRDD).
The intentional release of industrial agents is use of a WMD

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AB 1838 (Hertzberg)
Page 7
if committed with intent to harm and the use of such agent
risks death, illness or serious injury, or endangers
environment. (Pen. Code 11419.)
Existing law defines weaponization as "the deliberate
processing, preparation packaging or synthesis of any substance
for use as a weapon or munition. 'Weaponized agents' are those
agents or substances prepared for dissemination through any
explosive, thermal, pneumatic, or mechanical means." (Pen. Code
11417.)
This bill expands the definition of WMD to include additional
biological agents and an aircraft, vessel or vehicle (as defined in
Veh. Code 34500) used as a weapon. Vehicle Code section 34500
generally describes large commercial vehicles.
This bill - as suggested to be amended and as set out in SB 1287
(Alarcon) which passed this Committee in April - defines "used
as a destructive weapon" as the use with the intent of causing
widespread death or bodily injury by a fire or explosion, or
release of a chemical, biological, nuclear or radioactive agent.

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Page 1493

884

Use of a WMD - Definitions and Penalties
Existing law provides that a person who uses against another
person a weapon of mass destruction (WMD) in a form that could
cause widespread disabling injury or illness shall be punished
by life in prison. (Pen. Code 11418.)
Existing law provides that a person who uses a weapon of mass
destruction (WMD) in a form that could cause widespread
damage to, or disruption of, the water or food supply is
guilty of a felony and shall be imprisoned for 4, 8, or 12
years and/or fined up to $100,000. (Pen. Code 11418.)
Existing law provides that any person who uses a weapon of mass
destruction in a form that may cause widespread and significant
damage to public natural resources, including coastal waterways
and beaches, public parkland, surface waters, ground water, and
wildlife, is guilty of a felony and shall be punished by

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AB 1838 (Hertzberg)
Page 8
imprisonment in the state prison for 3, 4, or 6 years.
Code 11418.)

(Pen.

Existing law provides that a person who uses recombinant
technology to create new or more virulent pathogens for the
purposes specified in this section (to use against humans,
crops, etc.) is guilty of an alternate felony/misdemeanor,
punishable by up to one year in the county jail, or for 3, 6 or
9 years in state prison and/or a fine of up to $250,000. (Pen.
Code 11418.)
Existing law provides that any person who unlawfully possesses,
develops, acquires, etc., any WMD, is guilty of a felony
punishable in state prison for 3, 6, or 9 years. These
penalties are 4, 8, or 12 years in state prison if the
defendant has been previously convicted of crimes such as the
following: Ethnic/religious hate-type crimes, such as
terrorizing with Nazi symbols, cross burning, arson of a health
facility, bookstore or property owned by a person of a targeted
race/ethnicity; exploding or attempting to explode a
destructive device or explosive in specified locations with the
intent to terrorize; paramilitary organizations practicing with
weapons, or training another in explosives or destructive
devices; and various other explosives device crimes. (Pen.
Code 11411, 11412, 11413, 11460, 12303.1, 12303.2 and
12303.3.) (Pen. Code 11418.)

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Exhibit M
Page 1494

885

Existing law provides that a person or entity possessing any
"restricted biological agent" (designated, particularly
dangerous agents such as Ebola, anthrax, botulism, lassa fever
virus, equine encephalitis, smallpox, etc.) shall be punished by
imprisonment for 4, 8 or 12 years, and/or a full fine of
$250,000. (Pen. Code 11419.)
Existing law excludes the use of otherwise prohibited items by
universities, research institutions, individuals, or hospitals
registered with the Centers for Disease Control and Prevention
utilizing the substances for prophylactic, protective or
peaceful purposes. (Pen. Code 11419.)

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AB 1838 (Hertzberg)
Page 9
This bill - as suggested to be amended and as set out in SB 1287
(Alarcon) which passed this Committee in April - defines "used
as a destructive weapon" as the use with the intent of causing
widespread death or bodily injury by a fire or explosion, or
release of chemical, biological, nuclear or radioactive agent.
This bill makes use of a WMD in a form that may cause widespread
death or injury, and that actually causes death or injury to any
person, punishable by life in prison without parole.
This bill increases penalties for possessing, developing, or
manufacturing a WMD from 3, 6, or 9 years in state prison, to 4,
8, or 12 years.
This bill increases penalties for specified repeat WMD offenses
from 4, 8, or 12 years in state prison, to 5, 10, or 15 years,
and adds prior convictions for WMD crimes to the list of crimes
that qualify as repeat offenses.
This bill increases penalties for using a WMD that causes
widespread damage to or disruption of the food supply or
drinking water from 4, 8, or 12 years in state prison, to 5, 8,
or 12 years, and includes disruption of or damage to a "source
of drinking water" to this crime.
This bill increases penalties for using biological advances to
create new pathogens or more virulent forms of existing
pathogens for a WMD, from a wobbler, punishable by one year in
county jail, or 3, 6, or 9 years in state prison and/or a fine
of up to $250,000, to a straight felony punishable by 4, 8, or
12 years in state prison and a $250,000 fine.

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Exhibit M
Page 1495

886

WMD Threats and Hoaxes
Existing law provides that a person who falsely makes a bomb
report to police, fire officials, the media, transportation
agents, etc. is guilty of an alternate felony-misdemeanor,
punishable by up to one year in the county jail or in the state
prison for 16 months, 2 years or 3 years. (Pen. Code 148.1.)

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AB 1838 (Hertzberg)
Page 10
Existing law provides that any person who sends, gives or places
a false or facsimile bomb, with intent to cause fear, is guilty
of an alternate felony-misdemeanor, punishable by up to one year
in the county jail or in the state prison for 16 months, 2 years
or 3 years. (Pen. Code 148.1.)
Existing law provides that any person who makes a credible
threat to cause great bodily injury or death to the person to
whom the threat was made, or a member of the threatened person's
immediate family, is guilty of an alternate felony/misdemeanor,
punishable by up to one year in the county jail or in the state
prison for 16 months, 2 years or 3 years. (Pen. Code 422.)
Existing law provides that a person who makes a credible threat
to use a WMD such that threatened victims must undergo
decontamination or isolation shall be imprisoned for 3, 4, or 6
years and/or fined up to $250,000. (Pen. Code 11418.5.)
This bill creates a new crime to send or place a facsimile of a
WMD to a person or place with the intent to cause fear,
punishable by up to 1 year in county jail, or 16 months, 2, or 3
years in state prison, and a fine of up to $250,000. (It is
suggested that this provision be amended to conform to SB 1287
by making the sending of a facsimile WMD with intent to cause
fear a misdemeanor. The crime would be an alternate
felony-misdemeanor if victim(s) experience "sustained fear.")
This bill expands the application of the crime of making an
unequivocal, credible and immediate threat to use a WMD. The
bill does so by not defining 'sustained fear' to mean the
following: Evacuation of any building by any occupant,
evacuation of a school by any student or employee, evacuation
of a home by any resident/occupant, any decontamination,
isolation or quarantine effort, or any other action taken in
direct response to the threat to use a WMD. (It is suggested
that this provision be amended to require "sustained fear" as
defined otherwise in the bill. This amendment would conform

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Exhibit M
Page 1496

887

this provision to the equivalent provision in SB 1287
(Alarcon). SB 1287 passed this Committee in April, 2002.)

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AB 1838 (Hertzberg)
Page 11
COMMENTS
1.

Need for This Bill

According to the author:
Current law penalizes any persons (with specified
exceptions) who possess, develops, manufactures,
produces, transfers, acquires or attains any weapon of
mass destruction. It also penalizes any person who
uses or threatens to use a weapon of mass destruction
against another person, an animal, the food or water
supply, crops or public natural resources. It is also
a crime to maliciously possess or to expose any person
to a false or facsimile bomb whether verbally, in
writing or electronically. Current law states that a
conspiracy to commit a crime involving using a weapon
of mass destruction is punishable equal to actual
commission of the crime.
This bill will penalize the use of a weapon of mass
destruction against major infrastructure, landmarks,
or economic activity. It penalizes this type of
threat that causes widespread fear, business closures,
or transportation disruption. Under specified
circumstances it makes it a crime to possess or to
expose any other person to a facsimile weapon of mass
destruction. In addition, this bill specifies a
minimum penalty for conspiracy to commit these crimes.
2.

Related Legislation

A number of Senate terrorism bills within the jurisdiction of
this Committee are pending in the Legislature. These include SB
1267 (Battin) - which was amended and passed Assembly Public
Safety on June 11, 2000; SB 1287 (Alarcon) - set for hearing on
June 25, 2002 in Assembly Public Safety; and SB 1686 (Margett) which failed in Senate Public Safety on April 30, 2002, with
reconsideration granted. SB 1267 would require defendants in
hoax cases to pay the costs of emergency response. SB 1686

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Page 1497

888

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AB 1838 (Hertzberg)
Page 12
would create a new crime and sentencing scheme, based on the
gang statutes, for terrorism related crimes. SB 1287 was
amended in this Committee to include many of the provisions of
this bill, with relatively minor drafting differences, but
without the murder, serious felony and violent felony
provisions. It is suggested that this bill be amended to be
consistent with SB 1287, at least in the provisions shared by
the two bills. Discussions with the author's office and the
sponsor indicate that the author will likely accept the
suggestions of Committee staff.
3.

Pressing Concerns for Meeting the Threat of Terrorism

Testimony before the Committee on Anti-Terrorism Policy at a
March 11, 2002, hearing arguably established that the most
pressing needs for California in preparing for the threat of
terrorism is the expansion of the public health system,
additional training for first-responders and coordination of
communication and intelligence among various police and other
public safety entities.
4. Prior Legislation Creating the Act Amended by This Bill and SB
1287 (Alarcon)
In 1999, Senator Alarcon and Assembly Member Hertzberg carried
individual bills creating the California law specifically
defining weapons of mass destruction. The bills were combined
in the Senate Public Safety Committee as AB 140 - Ch. 573,
Stats. 1999. The bill was tombstoned the "Hertzberg-Alarcon
California Prevention of Terrorism Act."
In this session (2001-2002) Mr. Hertzberg and Senator
Alarcon have introduced this bill (AB 1838) and SB 1287
respectively to amend the Hertzberg-Alarcon Act and to make
related changes.
5.

First-Degree Murder Provisions

Most of the provisions in AB 1838 amend existing sections in the
Hertzberg-Alarcon Prevention of Terrorism Act. However,

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Page 1498

889

AB 1838 (Hertzberg)
Page 13
defining murder committed by use of a WMD as first-degree murder
and defining use of a WMD as a serious and violent felony
(Comment # 8) are new provisions not found in the Act.
The most common form of first-degree murder is deliberate and
premeditated murder. However, a murder committed by means of a
destructive device is first-degree murder. It appears that the
rationale for defining murder by means of a WMD is that a
destructive device and a WMD are very similar. Further, it may
be argued that because a WMD is defined as a weapon that may
cause widespread death or destruction, murder by use of a WMD is
a more serious crime than murder by a destructive device.
The most important consequence of designating a murder as
murder in the first-degree is that such crimes may be punished
by the death penalty if the prosecutor proves specified special
circumstances. The list of special circumstances is long. It
is very likely that defendants convicted of murders by means of
a WMD would be eligible for the death penalty in many, if not
most, cases. For example, a murder committed because of the
victim's race, nationality, religion, etc. constitutes special
circumstances murder.
SHOULD MURDER BY USE OF A WMD BE DEFINED AS MURDER IN THE
FIRST-DEGREE?
SHOULD A MURDER PERPETRATED BY USE OF A WMD BE PUNISHABLE BY THE
DEATH PENALTY IF SPECIAL CIRCUMSTANCES ARE PROVED?
6.

Life without Parole for Use of WMD Causing Death or GBI

In existing law using a WMD in a form that may cause widespread
death, illness or injury is punishable by life in prison, which
includes a minimum term before parole eligibility of 7 years.
This bill requires a punishment of life in prison without the
possibility of parole where a defendant is convicted of the use
of a WMD in a form that may be widely lethal or injurious if any
person actually suffers great bodily injury or death. Under
California law, the penalty of life in prison without parole is,
with rare exceptions, reserved for murder committed with special

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AB 1838 (Hertzberg)

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Exhibit M
Page 1499

890

Page 14
circumstances.
death penalty.

Such crimes are generally also eligible for the

? Crimes Carrying Penalty of Life Without Parole
First-degree murder with special circumstances
Explosion of destructive device causing death
Infliction of gbi by person with 3 prison terms
for violent crimes
Treason/interference with national defense
causing death or gbi
Kidnapping for ransom where victim suffers
death/gbi (or intentionally subjected thereto)
Train wrecking (intentional)
Life without parole as a punishment for train wrecking,
interference with national defense and kidnapping for ransom may
be rather anachronistic in California law. These crimes may
have arisen from particular events or circumstances and have
been seldom charged. For example, the penalty of life without
parole for kidnapping for ransom in which the victim suffers
death or great bodily injury developed as a result of the
infamous kidnapping of aviator Charles Lindbergh's baby. Many
states throughout the county passed similar laws in response to
public outcry. The penalty of life without parole for hindering
the national defense so as to cause injury or death was created
during World War II and the early Cold War. (People v. Gordon
(1944) 62 Cal.App.2d 268; Mil. & Vet. Code 1670 - enacted
1951.) States across the county passed forms of a "Model
Sabotage Act," in a response to World War II dangers that was
similar to the response to the recent attack on the World Trade
Center.
The issue of whether such a penalty is appropriate for the use
of a WMD turns on whether or not the crime is defined so as to
apply to truly serious conduct, such as committed by terrorists.
It appears that no appellate decisions have interpreted phrases
such as "used in a form that may cause widespread great bodily
injury or death."

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AB 1838 (Hertzberg)
Page 15
It should be noted that "great bodily injury" is defined rather
broadly in California law. Great bodily injury is any injury

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Page 1500

891

that is not trivial or transitory. It can be an injury
requiring sutures, a broken limb, etc. Arguably, this concern
is balanced by the fact that the bill requires that the WMD be
used in a form that may cause widespread great bodily injury or
death. Thus, where a WMD is used in such particularly dangerous
form, although actual injuries are relatively limited, the
result is merely fortuitous. Such a defendant's culpability is
equivalent to a person who does cause much more damage.
SHOULD USE OF A WMD IN A FORM THAT COULD CAUSE GBI OR DEATH AND
THAT ACTUALLY RESULTS IN GBI OR DEATH BE TREATED AS SERIOUSLY AS
PREMEDITATED MURDER WITH SPECIAL CIRCUMSTANCES?
IS GREAT BODILY INJURY SUFFERED BY AT LEAST ONE VICTIM
SUFFICIENT HARM TO JUSTIFY A TERM OF LWOP FOR USE OF A WMD IN A
FORM THAT MAY CAUSE WIDESPREAD DEATH OR GBI?
SHOULD THE LWOP PROVISION BE LIMITED TO CASES WHERE A VICTIM
DIES, NOT WHERE A PERSON SUFFERS GBI?
7. Use and Possession of WMD (Other than LWOP-eligible
Convictions)
a.

Used as a Destructive Weapon - Defined

AB 1838 includes the following new definition so as to expand
the law concerning WMDs: "'Used as a destructive weapon'
means to use with the intent of causing a fire or explosion, a
release of chemical, biological, or nuclear or radioactive
agent that may cause widespread great bodily injury or death."
According to discussions with the sponsor of AB 1838 - the
Los Angeles County District Attorney - this definition is
designed to conduct similar or equivalent to the attack on the
World Trade Center. Under this definition, a WMD is defined
by the harm intended or caused through use of the weapon,
rather than by listing specific targets.
The parallel provision in SB 1287 (Alarcon) was amended to

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AB 1838 (Hertzberg)
Page 16
define "used as a destructive weapon" as used "with the intent
of causing widespread great bodily injury or death by causing
a fire, explosion, or the release of a chemical biological or
radioactive agent." It is suggested and proposed that AB 1838
be amended to conform to this provision in SB 1287. This
amendment would define the crime in terms of the defendant's
mens rea (criminal intent) and not possibly fortuitous or

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Exhibit M
Page 1501

892

accidental consequences of less egregious intent.
b.

Use of Aircraft, Vessels or Vehicles as WMDs

This bill extends the WMD use crimes to an aircraft, vessel
or vehicle, as described in Vehicle Code section 34500. This
Vehicle Code section describes trucks designed to haul
freight, as well as busses, trailers and other commercial
vehicles. A specified mode of transportation becomes a WMD
when "used as a destructive weapon." As noted above in "a"
it is suggested that this provision to be amended to provide
that the defendant's intent would be to cause widespread
death or great bodily injury by means of a fire, explosion,
etc.
c.

Penalty Increases for Use of a WMD

AB 1838 increases prison terms for certain WMD use crimes,
such as use of a WMD with specified prior convictions.
Further, while current law makes use of a WMD in a form that
may cause widespread disruption of the food or water supply
a 4, 8 or 12-year felony, AB 1838 specifies that affected
water supplies are "source [s] of drinking water" as defined
in Health and Safety Code section 25249.11. AB 1838 expands
the crime of using a WMD against the food supply, crops or
animals to include "seed used seed stock . . ." (AB 1838,
as amended 3/07/02, p. 12, lines 28-35.)
AB 1838, as proposed to be amended in Committee, would expand
the crime of possessing a restricted biological agent (a 4,
8, or 12-year felony) to include agents that have similar or
identical properties to those set out in existing law. This
will allow prosecution in cases where a person possesses a

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AB 1838 (Hertzberg)
Page 17
particularly dangerous substance that
included in the law. This will avoid
constantly amending the governing law
existing restricted biological agents

is not specifically
the necessity of
as variations on
are developed.

Note : As the bill was amended on March 7, 2000, the provision
concerning new forms of restricted biological agents arguably
covers relatively innocuous material, including common cold
viruses, household weed killers, cleaning products, etc.
Discussions with the sponsor and the author's office have
confirmed that this provision will be limited as described in
the paragraph above (and so as to conform to SB 1287

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Exhibit M
Page 1502

893

(Alarcon).
d.
(d)

Suggested Amendment to Penal Code Section 11418, subd.

The bill currently provides that a person who uses recombinant
technology or other biological advance to create new or more
virulent pathogens "for the purposes specified in this
section" shall be subject to a prison term of 4, 8 or 12
years. However, section 11418 includes different forms and
levels of prohibited use. It is suggested that subdivision
(b) or Penal Code section 11418 (p. 13, lines 1-6) be amended
to distinguish between use of a WMD against persons and other
circumstances. Punishment for development of new pathogens
for use other than against persons - such as food and water
supply disruption, should be consistent with the penalties for
actual use. With this amendment, the prison triad for
developing new pathogens other than for use against persons
would be would be 3, 6 and 9 years. The fines for development
of new pathogens would remain above those for use, as those
persons with ability to develop new pathogens may have more
financial resources than persons who might use a WMD. SB 1287
(Alarcon) was amended in this manner and amendment of this
bill would make these bills consistent.
8.

Threats to Use WMD and WMD Hoaxes

AB 1838 creates a crime for sending or placing a facsimile WMD

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AB 1838 (Hertzberg)
Page 18
with the intent to cause fear. This new crime is an alternate
felony-misdemeanor, with a very large fine of $250,000. This
crime closely tracks an existing crime for false or facsimile
bomb threats found in Penal Code section 148.1. From
discussions with the sponsor of AB 1838, it appears that the new
WMD hoax crime was modeled on the bomb threats statute because
police and prosecutors are familiar with the existing crime.
Further, it was believed that since the conduct in both crimes
is similar, the penalties should be similar.
This provision in SB 1287 was amended to provide that the crime
can be a wobbler where sustained fear, as defined, is produced
by the crime. In other cases, the crime would be a misdemeanor.
It is suggested that AB 1838 be amended to conform to SB 1287
in this regard.
AB 1838 also amends an existing WMD threat crime in Penal Code

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Exhibit M
Page 1503

894

section 11418.5. The existing threat crime was drawn from Penal
Code section 422, which defines an alternate felony-misdemeanor
for credible threats to kill or cause great bodily injury.
Section 422 is applied for crimes similar to stalking and
harassment.
AB 1838 amends the WMD credible threat crime to provide that a
"statement" conveying a threat may be any form of communication,
including conduct, as described in Evidence Code section 225.
Existing law defines a credible threat to use a WMD as producing
sustained fear and which results in an isolation or
decontamination effort. The sponsor has stated that such a
definition is too limited.
AB 1838 defines a credible threat to use a WMD as one producing
"sustained fear." A separate subdivision defines sustained fear
to include, but not be limited to, evacuation, isolation or
decontamination. As proposed and suggested to be amended in
Committee, the bill would be amended to remove an arguably
overbroad reference to "any other action taken in direct
response to the threat . . ." This is how the parallel
provision in SB 1287 (Alarcon) reads.

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AB 1838 (Hertzberg)
Page 19
9. This Bill Defines Use of a WMD as a Serious or Violent Felony
for Purposes Other than Defining Strikes
This bill expands the serious and violent felony lists to
include any crime involving the use of a WMD, as defined in
Penal Code section 11418, subdivisions (b)-(c). Pursuant to
the enactment of Proposition 21 in the March 2000 Primary
Election, only serious and violent felonies so defined or
classified on March 8, 2000 constitute prior qualifying
offenses under the Three Strikes law. (Pen. Code 667.1 and
1170.125.)
However, defining a crime as serious or violent has numerous
consequences other than a Three Strikes sentence. The major
criminal law consequences are these: Prison credit limit of
15%; sentence enhancement of 5 years in current case for each
prior serious felony conviction, and 3 years in current case for
each prior violent felony conviction, restrictions on plea
bargaining and pre-trial release restrictions. Numerous
employment restrictions apply to those with such felony
convictions. See "Serious and Violent Felonies" section
"Existing law" section above for more examples.

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Page 1504

895

10. By Creating a New Felony for Facsimile WMDs, and by
Eliminating a Misdemeanor for Developing Pathogens for
WMD Use, the Bill Increases the Reach of the Three
Strikes Law
This bill creates an alternate felony-misdemeanor ("wobbler")
for sending/placing a facsimile or false WMD with the intent to
cause sustained fear. The new felony for WMD hoaxes is drawn
from a parallel crime covering bomb hoaxes. The creation of
this new felony for WMD hoaxes, as is the case with any new
felony, expands the reach of the Three Strikes law. Since the
enactment of the Three Strikes law in 1994, a majority of the
members of this Committee has been reluctant to create new
felonies for conduct that does not involve violence.
Arguably, however, the fear from and response to a facsimile
nuclear device, anthrax, ebola, etc., is equivalent to the harm

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AB 1838 (Hertzberg)
Page 20
from violent conduct. This may be particularly true in light
of the terrorist attacks in September 2001. Persons exposed to
facsimile WMDs often must undergo invasive medical care or
prophylactic treatment with antibiotics such as CIPRO that
cause harmful and debilitating side effects.
Further, the bill eliminates the misdemeanor option in existing
law for developing new or more virulent pathogens for use as
WMDs. Arguably, this change is consistent with the laws
concerning WMDs and the policy of this Committee. Inherent in
the definition of a WMD is that such a weapon may cause
widespread death or injury. Use of a WMD is clearly violent
conduct. A person who develops new and more virulent forms of
pathogens for use as WMDs is arguably as culpable as a person
who uses such weapons. In some cases, a new pathogen can be so
dangerous that its development for use as a WMD is more
dangerous than actual use of a less destructive device.
Three Strikes Law Summary
Under the Three Strikes law, a defendant with two prior serious
or violent felonies must receive a term of at least 25 years to
life in the sentence for the commission of any new felony,
including identity theft (an alternate felony/misdemeanor).
Where the defendant has a single prior serious or violent
felony, he or she shall receive a doubled term in the sentence
imposed upon conviction of any new felony.

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896

Alternate Felony-Misdemeanors and Three Strikes
Where a defendant has been convicted of an alternate felony
misdemeanor that has been charged and prosecuted by the District
Attorney as a felony, the sentencing court has the discretion to
deem the offense to be a misdemeanor pursuant to the decision of
the Court in People v. Superior Court (Alvarez) (1996) 14
Cal.4th 968 and Penal Code section 17, subdivision (b), unless
the court's action is arbitrary and contrary to substantial
justice.

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AB 1838 (Hertzberg)
Page 21

Judicial Discretion to Dismiss a Strike is Limited
Where a defendant has been convicted of a straight felony, or
where the court has declined to deem a wobbler to be a
misdemeanor, the court's ability to ameliorate the severity of
the Three Strikes law is much more limited. A court has
discretion to dismiss one or more prior "strikes," but only
where the defendant's record and the current conviction
establish that the defendant should be treated as though he or
she does not fall under the terms of the Three Strikes law.
(People v. Superior Court (Romero) (1996) 13 Cal.4th
497-530-531; People v. Williams (1998) 17 Cal.4th 198.)
SHOULD THE LEGISLATURE CREATE A NEW WOBBLER - THEREBY EXPANDING
THE THREE STRIKES LAW - FOR SENDING OR PLACING A FACSIMILE OR
FALSE WMD WITH INTENT TO CAUSE SUSTAINED FEAR, SUCH AS BY
CAUSING EVACUATIONS AND DECONTAMINATION?
SHOULD THE LEGISLATURE ELIMINATE THE MISDEMEANOR OPTION FOR
DEVELOPING NEW OR MORE VIRULENT FORMS OF PATHOGENS FOR USE AS
WMDs?

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Page 1506

897

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11.
Representative Federal Terrorism Provisions Complementary
to California WMD Laws
The California law on WMDs was created in 1999 through AB 140
(Hertzberg-Alarcon) - Ch. 573, Stats. 1999. California WMD law
was drawn from federal law. Some definitions are different in
California law, but the state and federal schemes are largely
consistent. Federal law does also include definitions of
terrorism and mass transportation vehicles that inform the issues
raised by this bill.
a.

Federal Law Defining Terrorism

Federal law, including recent amendments from the "Patriot
Act," defines "international terrorism" and "domestic
terrorism" thus:
?

Acts that "involve violent acts or acts dangerous to
human life that are a violation of laws of the United
States or any State . . ."

?

And the acts are intended to do one or more of the
following:
Intimidate or coerce a civilian population
Influence government policy by intimidation or
coercion
Affect the conduct of a government by mass
destruction, assassination, or kidnapping

International terrorism "occurs primarily outside the
territorial jurisdiction of the United States, or transcend
national boundaries . . ." Domestic terrorism occurs
"primarily within the territorial jurisdiction of the United
States." (18 U.S.C. 2331.)

http://info.sen.ca.gov/pub/01-02/bill/asm/ab_1801-1850/ab_1838_cfa_20020618_141005_sen_comm.html

Exhibit M
Page 1507

898

b.

Federal Law on Mass Transportation and Terrorism

Mass transportation means transportation by a conveyance that

(More)

AB 1838 (Hertzberg)
Page 23
provides regular and continuing general or special

and sightseeing transportation.
U.S.C. 5302(a)(7).)

transportation to the publi
(18 U.S.C. 1993(c)(6); 49

***************

http://info.sen.ca.gov/pub/01-02/bill/asm/ab_1801-1850/ab_1838_cfa_20020618_141005_sen_comm.html

Exhibit M
Page 1508

899