Existing law, as amended by Proposition 115 as approved by the voters at the June 5, 1990, statewide primary election, provides that a murder committed by certain means or under certain circumstances is murder in the first degree, and all other kinds of murder are of the second degree. The Legislature may amend Proposition 115 by a statute passed in each house by rollcall vote entered in the journal, ²/₃ of the membership concurring, or by a statute that becomes effective only when approved by the electors.

Existing law, as amended by Proposition 115 as approved by the voters at the June 5, 1990, statewide primary election, provides that a murder committed by certain means or under certain circumstances is murder in the first degree, and all other kinds of murder are of the second degree. The Legislature may amend Proposition 115 by a statute passed in each house by rollcall vote entered in the journal, ²/₃ of the membership concurring, or by a statute that becomes effective only when approved by the electors.

This bill would make technical, nonsubstantive changes to that provision.

ASSEMBLY THIRD READING

ATR Bill Id:AB 3104

Author:(Cooper)

As Amended Ver:March 22, 2018

2/3 vote

SUMMARY: Limits the sentence for specified first degree murder convictions where the person is not the actual killer, but participated in specified felonies, to 25 years to life. Specifies that a person who is not the actual killer and who does not act with reckless indifference to human life and is not a major participant in the crime, but who is an accomplice in a specified felony that results in the death of a person, is guilty of second degree murder, punishable by 15 years to life. Specifically, this bill:

1. States that a person who is not the actual killer and who, with the intent to kill, aids or assists an actor in the commission of specified dangerous felonies that result in the death of a person is guilty of murder in the first degree, punishable by 25 years to life.
2. States that a person who is not the actual killer, but who with reckless indifference to human life and as a major participant, aids or assists an actor in the commission of specified dangerous felonies that result in the death of a person, is guilty of murder in the first degree, punishable by 25 years to life.
3. States that a person who is not the actual killer and who does not act with reckless indifference to human life and is not a major participant in the crime, aids or assists an actor in the commission of specified dangerous felonies that result in the death of a person is guilty of murder in the second degree, punishable by 15 years to life.
4. Specifies that the provisions of this bill do not apply to a crime in which the victim is a peace officer, who was killed while engaged in the performance of his or her duties, 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.
5. Allows a defendant may submit a request for resentencing when all of the following conditions apply:
   1. The person was sentenced to an indeterminate term of imprisonment in the state prison for life without the possibility of parole, as specified;
   2. The person was not the actual killer;
   3. The person did not act with reckless indifference to human life and was not a major participant in the underlying felony; and,
   4. The victim was not a peace officer engaged in the performance of his or her duties, as specified in this bill.
6. Provides that petition for recall and resentencing shall be addressed to the court that originally sentenced the petitioner.
7. Specifies that if the court that originally sentenced the petitioner is not available to resentence, the presiding judge shall designate another judge to rule on the petition. The petition shall include all of the felonies for which the petitioner is currently serving a sentence that meet the criteria for recall and resentencing.
8. Requires the court to conduct an evidentiary hearing to determine whether the petitioner satisfies the criteria for recall and resentencing, upon receiving a petition.
9. Requires the petitioner to bear the burden of proving his or her eligibility for resentencing by clear and convincing evidence.
10. States that if the court finds the petitioner is eligible, the petitioner shall be resentenced pursuant to the provisions of this bill, unless the court, in its discretion, determines that resentencing the petitioner would present an unreasonable risk to public safety.
11. Specifies that a hearing ordered pursuant to this bill is a post-conviction release proceeding for purposes of the California Constitution.
12. Allows the petitioner may waive his or her appearance in court for the resentencing hearing, provided that the accusatory pleading is not amended at the resentencing and that a new trial is not going to occur.
13. Requires petitions for relief pursuant to this section shall be filed on or before January 1, 2024.

EXISTING LAW:

1. Provides that all murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, 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, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, 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.
2. Provides 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 if one or more special circumstances is found to be true.
3. States that special circumstances include that 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 arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, 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.
4. Specifies that 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 listed above, 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.
5. Provides that one who aids and abets another in the commission of a crime is a principal and is just as culpable as the principal offender.
6. States that every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.
7. Except as otherwise provided, every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.
8. States 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 if one or special circumstances has been found be true.
9. Special circumstances include a murder that 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 robbery, kidnapping, rape, sodomy, lewd or lascivious act upon the person of a child under the age of 14 years, oral copulation, burglary, arson, train wrecking, mayhem, rape, or carjacking.
10. Specifies that every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids or abets in the commission of a specified felony which results in the death of a 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 involving commission of specified felonies has been found to be true.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0002733

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 3104

Author:(Cooper) – As Amended Ver:March 22, 2018

SUMMARY: Limits the sentence for specified first degree murder convictions where the person is not the actual killer, but participated in specified felonies, to 25 years to life. Specifies that a person who is not the actual killer and who does not act with reckless indifference to human life and is not a major participant in the crime, but who is an accomplice in a specified felony that results in the death of a person, is guilty of second degree murder, punishable by 15 years to life. Specifically, this bill:

1. States that a person who is not the actual killer and who, with the intent to kill, aids or assists an actor in the commission of specified dangerous felonies that result in the death of a person is guilty of murder in the first degree, punishable by 25 years to life.
   
2. States that a person who is not the actual killer, but who with reckless indifference to human life and as a major participant, aids or assists an actor in the commission of specified dangerous felonies that result in the death of a person, is guilty of murder in the first degree, punishable by 25 years to life.
   
3. States that a person who is not the actual killer and who does not act with reckless indifference to human life and is not a major participant in the crime, aids or assists an actor in the commission of specified dangerous felonies that result in the death of a person is guilty of murder in the second degree, punishable by 15 years to life.
   
4. Specifies that the provisions of this bill do not apply to a crime in which the victim is a peace officer, who was killed while engaged in the performance of his or her duties, 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.
   
5. Allows a defendant may submit a request for resentencing when all of the following conditions apply:
   
   1. The person was sentenced to an indeterminate term of imprisonment in the state prison for life without the possibility of parole, as specified;
      
   2. The person was not the actual killer;
      
   3. The person did not act with reckless indifference to human life and was not a major participant in the underlying felony; and,
      
   4. The victim was not a peace officer engaged in the performance of his or her duties, as specified in this bill.
      
6. Provides that petition for recall and resentencing shall be addressed to the court that originally sentenced the petitioner.
   
7. Specifies that if the court that originally sentenced the petitioner is not available to resentence, the presiding judge shall designate another judge to rule on the petition. The petition shall include all of the felonies for which the petitioner is currently serving a sentence that meet the criteria for recall and resentencing.
   
8. Requires the court to conduct an evidentiary hearing to determine whether the petitioner satisfies the criteria for recall and resentencing, upon receiving a petition.
   
9. Requires the petitioner to bear the burden of proving his or her eligibility for resentencing by clear and convincing evidence.
   
10. States that if the court finds the petitioner is eligible, the petitioner shall be resentenced pursuant to the provisions of this bill, unless the court, in its discretion, determines that resentencing the petitioner would present an unreasonable risk to public safety.
    
11. Specifies that a hearing ordered pursuant to this bill is a post-conviction release proceeding for purposes of the California Constitution.
    
12. Allows the petitioner may waive his or her appearance in court for the resentencing hearing, provided that the accusatory pleading is not amended at the resentencing and that a new trial is not going to occur.
    
13. Requires petitions for relief pursuant to this section shall be filed on or before January 1, 2024.

EXISTING LAW:

1. Provides that all murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, 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, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, 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. (Pen. Code, § 189.)
   
2. Provides 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 if one or more special circumstances is found to be true.
   
3. States that special circumstances include that 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 arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd and lascivious act upon a child under the age of 14 years, oral copulation, or penetration by a foreign object, 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. (Penal Code §190.2, subd. (a)(17).)
   
4. Specifies that 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 listed above, 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. (Penal Code §190.2, subd. (d).)
   
5. Provides that one who aids and abets another in the commission of a crime is a principal and is just as culpable as the principal offender. (Pen. Code, § 31.)
   
6. States that every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. (Pen. Code, § 190, subd. (a).)
   
7. Except as otherwise provided, every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life. (Pen. Code, § 190, subd. (a).)
   
8. States 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 if one or special circumstances has been found be true. (Pen. Code, § 190.2.)
   
9. Special circumstances include a murder that 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 robbery, kidnapping , rape, sodomy, lewd or lascivious act upon the person of a child under the age of 14 years, oral copulation, burglary, arson, train wrecking, mayhem, rape, or carjacking. (Pen. Code, § 190.2, subd(a)(17).)
   
10. Specifies that every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids or abets in the commission of a specified felony which results in the death of a 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 involving commission of specified felonies has been found to be true. (Pen. Code, § 190.2.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: None submitted.
   
2. Felony Murder Rule: The felony murder rule is a legal doctrine that excludes considerations of context and intention in a murder-crime: when someone is killed during the commission of a felony, regardless of how or by whom they are killed, the person engaged in the felony is charged with murder. The United States is the only country in the world to use the felony murder rule. Hawaii and Kentucky have banned the felony murder rule by statute and in Michigan through the Supreme Court. In Michigan, the Supreme Court noted when it abolished the felony murder rule: “Whatever reasons can be gleaned from the dubious origin of the felony-murder rule to explain its existence, those reasons no longer exist today. Indeed, most states, including our own, have recognized the harshness and inequity of the rule as is evidenced by the numerous restrictions placed on it. The felony-murder doctrine is unnecessary and in many cases, unjust in that it violates the basic premise of individual moral culpability upon which our criminal law is based.”
   
   Under the current felony murder rule in California, criminal liability for a homicide is very broad. A defendant may be convicted of first-degree murder under the felony-murder rule if the defendant is involved in the commission, attempted commission, or flight following the commission or attempted commission of a statutorily-enumerated felony (Penal Code § 189), even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent. First degree murder carries a sentence of 25 years to life. A first degree murder accompanied by one or more special circumstances is punishable by death or life without parole. Special circumstances include the participation in one of the same statutorily-enumerated felonies which qualified the crime as first degree murder. If the accomplice was not the actual killer, the accomplice is still punishable with death or life without parole if the accomplice was a major participant in the crime and acted with reckless indifference to human life.
   
   A defendant may be convicted of second-degree felony murder if a killing happened during the commission, attempted commission, or flight following the commission or attempted commission of an “inherently dangerous felony” even if the defendant did not do the killing, and even if the killing was unintentional, accidental, or negligent. Second degree murder carries a sentence of 15 years to life.
   
   This bill would narrow the application of the 1^st degree felony murder rule. This bill would limit the sentence for specified 1^st degree murder convictions where the person is not the actual killer, but participated in certain felonies, to 25 years to life. This bill would also redefine as 2nd degree murder, punishable by 15 years to life, a person who is not the actual killer and who does not act with reckless indifference to human life and is not a major participant in the crime, but who is an accomplice in a specified felony that results in the death of a person.
   
3. Concept of Felony Murder/Felony Murder and Culpability: Felony murder relies on the concept that an individual who participates in a felony should be responsible for a death that occurs during the course of that felony regardless of how that death occurred. But for the commission of the crime, the death would not have occurred. Based on that concept, the person that participated in the felony is responsible for the death of another, even if the death is unintentional, accidental, or committed by another person.
   
   The broadest version of the doctrine of felony murder makes even an accidental killing-one caused by non-negligent conduct a murder. If a death is accidental, then by definition the state can prove no mental fault (not even negligence, the least culpable recognized state of mind) with regard to the element of causing the death of another human being. (https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1696&context=wlulr) Under California criminal law, the general rule to be found guilty of murder is that the person must intend to kill or act with conscious disregard for human life. The felony murder rule has been broadly criticized because it does not require a defendant to have that state of mind which is generally required to establish culpability for a murder.
   
4. Felony-Murder Rule Does Not Necessarily Act as a Deterrent: In California conviction for murder, requires proof of intent to kill or action taken with conscious disregard for human life. Under the felony murder rule, a person can be convicted of murder without proof of any intent to kill or conscious disregard of human life, if the death at issue occurred during the commission of a felony. Proponents of the rule argue that it encourages criminals to reduce the number of felonies they commit and to take greater care to avoid causing death while committing a felony. Opponents argue that criminals are unaware of the felony murder rule and, more importantly, that it is impossible to deter criminals from committing unintentional acts. Critics also argue that the felony murder rule distorts marginal deterrence incentives— once a felon has accidentally caused one death, there is less to deter him from intentionally killing other witnesses to the crime. (http://www.law.virginia.edu/pdf/malani/felonymurder021111rand.pdf)
   
   Anup Malani, published a paper in 2002, which examined data related to the felony-murder rule. Ms. Malani concluded that the felony murder rule does not provide an effective deterrent to criminal behavior. Ms. Malani compared the difference in average crime rates in states and years with and without the rule (defined as states that do and do not punish felony murder as first-degree murder, respectively) during the 1968-98 period. Ms. Malani found that the felony murder rule does not substantially improve crime rates. Based on her research, Ms. Malani suggested that if the primary rational for a state to retain the felony murder rate is to reduce crime, the state should reconsider the rule. (Id.)
   
5. Argument in Support: According to the California Peace Officers’ Association, “Our members are both supervisorial and frontline peace officers who want to ensure that the criminal justice system is holding murder participants, both the actual killer(s) and their accomplices accountable for their role in the crime(s). Often a participant in a murder event may not ‘deal the blow’ but had intent for a killing nonetheless. Those persons need to be held accountable by first degree murder.
   
   “By specifying which roles are reserved for 2^nd degree murder, AB 3104 also provides justice for those without specified recklessness, but aids and abets the commission of the crime.
   
   “Felony murder has long need to be cleaned up and clarified, and we believe that this bill accomplishes that goal.”
   
6. Related Legislation:
   
   1. SB 1437 (Skinner), would prohibit a participant in the perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person personally committed the homicidal act, the person acted with premeditated intent to aid and abet an act wherein a death would occur, or the person was a major participant in the underlying felony and acted with reckless indifference to human life. SB 1437 is awaiting hearing in the Senate Public Safety Committee.
      
   2. SB 971 (Nguyen), would additionally include among those special circumstances that the victim was intentionally killed because of his or her sexual orientation or gender, as defined. SB 971 is set for hearing in the Senate Public Safety Committee on April 10, 2018.
      
7. Prior Legislation:
   
   1. AB 2195 (Bonilla), of the 2015-2016 Legislative Session, would have require the district attorney of each county to collect data on the number of persons charged with and convicted of felony murder, disaggregated by race and gender, and, beginning July 1, 2017, to report that data to the Department of Justice. AB 2195 was held on the Assembly Appropriations Committee Suspense File.
      
   2. SB 878 (Hayden), of the 1999-2000 Legislative Session, would have required the court in a case involving felony murder with a defendant who did not physically or directly commit the murder, whether imposition of a sentence of first degree murder is proportionate to the offense committed and to the defendant’s culpability in committing that offense by considering specified criteria and to state its reasons on the record. SB 878 failed passage on the Senate Floor.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Peace Officers Association

Opposition

None

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744