Existing law requires the Department of Justice to collect certain criminal justice data from specified persons and agencies and to present an annual report to the Governor containing the criminal statistics of the preceding calendar year, as specified. Existing law requires the department to maintain a specified data set, updated annually, that is made available through a prominently displayed hypertext link on the departments Internet Web site. Existing law also requires the department to annually publish a report containing specified demographic information on victims of, and persons who are charged with, homicide.

Existing law specifies which species of murder are murder of the first degree, including all murder that is committed in the perpetration of, or attempt to perpetrate, certain crimes, including, among others, burglary, arson, rape, robbery, and kidnapping. Existing law provides that all other kinds of murders are of the second degree.

This bill would, notwithstanding any other law, on or before January 1, 2018, require the Department of Justice, in consultation with the Department of Corrections and Rehabilitation, to collect data on the number of persons currently convicted of of, and sentenced for for, first and second degree felony murder pursuant to the provisions described above. The bill would also require the Department of Justice to disaggregate that the data by county. county and by race and gender within each county. The bill would require the Department of Justice to update this the data annually, annually and would require the department to post the data in a prominent place on the departments Internet Web site.

The Massage Therapy Act, until January 1, 2017, provides for certification of massage practitioners and massage therapists by the California Massage Therapy Council. Existing law also provides for the council to be governed by an interim board of directors until September 15, 2015, and for the appointment of a new board of directors having 4-year terms.

This bill would extend the operation of these provisions until January 1, 2019, and make nonsubstantive changes to delete obsolete provisions related to the interim board.

Date of Hearing: May 18, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2195

Author:(Bonilla) – As Amended Ver:May 4, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires District Attorneys to collect data on the number of persons, by race and gender, charged with and convicted of felony murder, and report the data annually to the Department of Justice (DOJ) beginning July 1, 2017. This bill requires DOJ to incorporate this information, disaggregated by county, race and gender, on its annual report related to homicides.

FISCAL EFFECT:

1. Moderate reimbursable state mandated cost (GF) to counties. If the largest 20 counties are successful in a mandate claim for $10,000 to provide the required information, the GF cost would be $200,000. The reimbursable cost would be greater if more counties seek reimbursement, or if the costs to the largest counties is much greater.
2. Moderate one-time costs to DOJ in the $100,000 to $150,000 range (GF) for programming to capture the new data elements and incorporate the new data in the annual report, and minor ongoing costs.

COMMENTS:

1. Background. Murder is classified according to degrees, either first or second degree murder. Any killing in the perpetration of specified felonies is murder in the first degree (felony murder). Any death that that occurs as a direct causal result of the commission or attempted commission of a felony inherently dangerous to human life, other than a felony enumerated in Penal Code Section 189, constitutes second degree felony murder. Murder in the first degree is either, intentional and premeditated or felony murder, and murder in the second degree is either unpremeditated or as the result of the commission of an inherently dangerous felony.
2. Purpose. According to the author, "Over 40,000 people are serving life sentences in the California state prison system. It is both alarming and unacceptable that we do not know how many people are convicted under the felony murder rule, a law that can impose the harshest and ultimate sentence of death or life without the possibility of parole, for those whose crime may not be proportionate to their punishment.”

Felony murder is not a separate charge which can be easily tracked. A murder defendant is charged with murder in violation of Penal Code Section 187 and the degree is determined by the trier of fact at trial, or is admitted by the defendant when entering a plea.

AB 2195 requires District Attorneys to track this information prospectively, and requires the DOJ to incorporate the data into its annual report.

1. Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2195

Author:(Bonilla) – As Amended Ver:April 5, 2016

SUMMARY:

Requires the Department of Justice (DOJ) in consultation with the California Department of Corrections and Rehabilitation (CDCR) to collected data on the number of persons convicted and sentenced for felony murder. Specifically, this bill:

1. Provides that on or before January 1, 2018, the DOJ in consultation with CDCR shall collect data on both of the following:
   
   1. The number of persons currently convicted and sentenced for first degree felony murder; and,
      
   2. The number of persons currently convicted and sentenced for second degree felony murder'
      
2. Requires the DOJ to disaggregate the felony murder data by county, and to update the data annually.
   
3. Requires the DOJ to post the felony murder data in a prominent place on the DOJ Internet Web site.

EXISTING LAW:

1. Provides that murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (Pen. Code, § 187.)
   
2. Provides that malice aforethought may be express or implied. Malice aforethought is expressed 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." (Pen. Code, § 188.)
   
3. Classifies murder according to degrees, either first degree or second degree. (Pen. Code, § 189.)
   
4. Provides that first-degree murder includes murders perpetrated by destructive device or explosive; knowing use of ammunition designed primarily to penetrate metal or armor; poison; lying in wait; torture; any kind of willful, deliberate, and premeditated killing; discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death; and any murder committed in the perpetration of, or attempt to perpetrate:
   
   1. Arson;
      
   2. Rape;
      
   3. Carjacking;
      
   4. Robbery;
      
   5. Burglary;
      
   6. Mayhem;
      
   7. Kidnapping;
      
   8. Train wrecking;
      
   9. Sodomy;
      
   10. Lewd or lascivious acts on a child under age 14;
       
   11. Oral copulation; or,
       
   12. Penetration of genital or anal openings with a foreign object. (Pen. Code, § 189.)
       
5. Provides that second-degree murders include all murders not enumerated as first degree. Pen. Code, § 189.)
   
6. Provides that homicide that occurs as a direct causal result of the commission or attempted commission of a felony inherently dangerous to human life, other than a felony enumerated in Penal Code Section 189, constitutes at least second-degree murder. (People v. Patterson (1989) 49 Cal. 3d 615, 620.)
   
7. 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.)
   
8. 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 of parole. (Pen. Code, § 190.)
   
9. 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 22 separate categories of "special circumstances":
   
   1. The murder was intentional and carried out for financial gain;
      
   2. The defendant was convicted previously of first- or second-degree murder;
      
   3. The defendant, in the present proceeding, has been convicted of more than one offense of first- or second-degree murder;
      
   4. The murder was committed by means of a destructive device planted, hidden or concealed in any place, area, dwelling, building or structure;
      
   5. The murder was committed to avoid arrest or make an escape;
      
   6. The murder was committed by means of a destructive device that the defendant mailed or delivered, or attempted to mail or deliver;
      
   7. 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;
      
   8. The victim was a federal law enforcement officer who was intentionally killed [the same as Item (g) above];
      
   9. The victim was a firefighter who was intentionally killed while performing his/her duties;
      
   10. The victim was a witness to a crime and was intentionally killed to prevent his/her testimony, or killed in retaliation for testifying;
       
   11. The victim was a local, state or federal prosecutor murdered in retaliation for, or to prevent the performance of, official duties;
       
   12. The victim was a local, state, or federal judge murdered in retaliation for, or to prevent the performance of, official duties;
       
   13. 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;
       
   14. The murder was especially heinous, atrocious, or cruel, "manifesting exceptional depravity." "Manifesting exceptional depravity" is defined "a conscienceless or pitiless crime that is unnecessarily torturous";
       
   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 immediate flight after, committing or attempting to commit the following crimes: robbery; kidnapping; rape; sodomy; lewd or lascivious act on a child under age 14; oral copulation; burglary; arson; train wrecking; mayhem; rape by instrument; carjacking; torture; poison; the victim was a local, state or federal juror murdered in retaliation for, or to prevent the performance of his/her official duties; and, the murder was perpetrated by discharging a firearm from a vehicle.
       
   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 and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's duties as a juror;
       
   21. The murder was intentional and committed by discharging a firearm from a motor vehicle; or,
       
   22. The defendant intentionally killed the victim while actively participating in a criminal street gang. (Pen. Code, § 190.2.)
       
10. Requires three separate findings at the trial in order to qualify for the death penalty: (a) guilty of first-degree 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" where the either the judge or jury considers factors in aggravation or mitigation. (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. (Pen. Code, § 190.4(e).)
    
11. Provides that during the penalty phase of a death penalty trial, the prosecution and the defendant may present evidence relevant to aggravation, mitigation, and sentence. In determining the penalty to be imposed, the trier of fact may take into account any relevant enumerated factors. Such factors in aggravation or mitigation include:
    
    1. The circumstances of the crime and the existence of any special circumstances;
       
    2. The presence or absence of threats or the actual use of force or violence;
       
    3. Prior felony convictions;
       
    4. Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance;
       
    5. Whether or not the victim was a participant or consented to the homicidal act;
       
    6. Whether or not the offense was committed under circumstances that the defendant believed to be a moral justification or extenuation of his or her conduct.
       
    7. Whether or not the defendant acted under extreme duress or under the substantial domination of another person;
       
    8. Whether or not at the time of the offense, the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the law was impaired as a result of mental disease, defect, or the effects of intoxication;
       
    9. The age of the defendant at the time of the crime;
       
    10. Whether or not the defendant was an accomplice and his or her participation in the offense was relatively minor; or,
        
    11. Any other circumstance that extenuates the gravity of the crime, though not a legal excuse for the crime. (Pen. Code, §190.3.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Over 40,000 people are serving life sentences in the California state prison system. It is both alarming and unacceptable that we do not know how many people are convicted under the felony murder rule, a law that can impose the harshest an ultimate sentence of death or life without the possibility of parole, for those whose crime may not be proportionate to their punishment.
   
2. Data Not Readily Available: This bill requires DOJ in consultation with CDCR to gather data on persons currently convicted and sentence to felony murder of the first or second degree. Murder is classified according to degrees, either first or second degree murder. Any killing in the perpetration of specified felonies is murder in the first degree (felony murder). Any death that that occurs as a direct causal result of the commission or attempted commission of a felony inherently dangerous to human life, other than a felony enumerated in Penal Code Section 189, constitutes second degree felony murder. Murder in the first degree is either, intentional and premeditated or felony murder, and murder in the second degree is either unpremeditated or as the result of the commission of an inherently dangerous felony.
   
   The problem in collecting data on felony murder is that the abstract of judgement in murder cases only reflect conviction of murder in the first or second degree. It does not reflect the basis for the conviction. Felony murder is not a separate charge which can be easily tracked. A murder defendant is charged with murder in violation of Penal Code Section 187 and the degree is determined by the trier of fact at trial, or is admitted by the defendant when entering a plea. There isn't any way to determine from the abstract of judgment if a first or second degree murder conviction was premeditated, unpremeditated, or felony murder. This has been confirmed by both DOJ and CDCR.
   
   The only exception, where the conviction would be broken down, is in murder cases where there is a special circumstance which makes the offense punishable by death or life without parole. In these cases, a felony murder special circumstance (Penal Code §190.2 (a) (17)) would be alleged in the charging document and reflected in the abstract of judgment if found to be true. These death penalty/LWOP cases, where data can be obtained, are only a portion of the overall murder cases.
   
   
   
   It would appear that the only way to gather the data requested in this bill would be a case file inspection in the court in the jurisdiction where the conviction was obtained, and that might only be fruitful if there had been a jury trial and you could review the jury instructions to determine the theory upon which the conviction was based.

REGISTERED SUPPORT / OPPOSITION:

Support

A New PATH
A New Way of Life Re-Entry Project
American Civil Liberties Union
American Friends Service Committee
Anti-Recidivism Coalition
Asian Americans Advancing Justice-California
California Attorneys for Criminal Justice
California Coalition for Women Prisoners
California Families Against Solitary Confinement
California Prison Focus
California Prison Moratorium Project
California Public Defenders Association
Community Works West
Courage Campaign
Drug Policy Alliance
Ella Baker Center for Human Rights
Fair Chance Project
Felony Murder Elimination Project
Friends Committee on Legislation
Justice Now
Legal Services for Prisoners with Children
Loyola Law School Alarcon Advocacy Center
Loyola Law School project for the Innocent
National Center for Youth Law
Northern California Innocence Project
Pacific Juvenile Defendant Center
Prison Law Office
Prison Policy Initiative
Rubicon Programs
Silicon Valley De-Bug
Time for Change Foundation
W. Haywood Burns Institute

Opposition

None

Analysis Prepared by:

Gregory Pagan / PUB. S. / (916) 319-3744