Bill Text: CA SB490 | 2011-2012 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Death penalty.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2011-08-25 - Hearing postponed by committee. [SB490 Detail]
Download: California-2011-SB490-Amended.html
Bill Title: Death penalty.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2011-08-25 - Hearing postponed by committee. [SB490 Detail]
Download: California-2011-SB490-Amended.html
BILL NUMBER: SB 490 AMENDED BILL TEXT AMENDED IN ASSEMBLY JULY 12, 2011 AMENDED IN ASSEMBLY JUNE 28, 2011 AMENDED IN SENATE MAY 31, 2011 AMENDED IN SENATE MAY 10, 2011 AMENDED IN SENATE APRIL 25, 2011 INTRODUCED BY Senator Hancock FEBRUARY 17, 2011 An act to amend Sections 190, 190.2, and 190.4 of, and to repeal Sections 190.1 and 190.3 of, the Penal Code, relating to the death penalty. LEGISLATIVE COUNSEL'S DIGEST SB 490, as amended, Hancock. Death penalty. Existing law, as added and amended by various initiatives, including Proposition 7, approved by the voters at the November 7, 1978, statewide general election, provides for imposition of the death penalty for murder in the first degree if certain special circumstances are proved. Proposition 7 may only be amended by the Legislature by a statute that becomes effective only when approved by the electors. This bill would abolish the death penalty, and provide instead for imprisonment in the state prison for life without the possibility of parole. The bill would halt executions unless the voters fail to approve this bill and would provide that where a defendant or inmate was sentenced to death prior to the date of the enactment of the bill, upon voter approval of this bill, the defendant's or inmate's sentence would automatically be converted to life imprisonment without the possibility of parole. The bill would state findings and declarations of the Legislature regarding the death penalty. The bill would provide that it would only become effective if certain of its provisions are submitted to and approved by the electors at the next statewide general election. 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. The Legislature finds and declares all of the following: (a) It is the intent of the Legislature to replace the death penalty with permanent imprisonment. (b) The death penalty costs three times as much as permanent imprisonment. (c) A recent study published in the Loyola of Los Angeles Law Review found that California spends $184 million a year on the death penalty. (d) The same study found that Californians have spent more than $4 billion on capital punishment since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since reinstatement. (e) The millions of dollars spent on the death penalty could be used to make our communities safer by funding other public safety programs. SEC. 2. Section 190 of the Penal Code is amended to read: 190. (a) (1) Every person guilty of murder in the first degree shall be punished by 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. The penalty to be applied shall be determined as provided in Sections 190.2, 190.4, and 190.5. (2) Except as provided in subdivision (b), (c), or (d), 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. (b) Except as provided in subdivision (c), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 25 years to life if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, 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. (c) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of life without the possibility of parole if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, 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, and any of the following facts has been charged and found true: (1) The defendant specifically intended to kill the peace officer. (2) The defendant specifically intended to inflict great bodily injury, as defined in Section 12022.7, on a peace officer. (3) The defendant personally used a dangerous or deadly weapon in the commission of the offense, in violation of subdivision (b) of Section 12022. (4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5. (d) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury. (e) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce any minimum term of a sentence imposed pursuant to this section. A person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of confinement prescribed by this section. SEC. 3. Section 190.1 of the Penal Code is repealed. SEC. 4. Section 190.2 of the Penal Code is amended to read: 190.2. (a) The penalty for a defendant who is found guilty of murder in the first degree is 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 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. (22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang. (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 special circumstance in order to suffer 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 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) (1) 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 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. (2) The penalty shall be determined as provided in this section and Sections190.1, 190.3, 190.4,190.4 and 190.5. SEC. 5. Section 190.3 of the Penal Code is repealed. SEC. 6. Section 190.4 of the Penal Code is amended to read: 190.4. (a) (1) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial. (2) In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime. (3) If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people. (4) If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, the defendant shall be punished by imprisonment in state prison for life without the possibility of parole. (b) If the trier of fact which convicted the defendant of a crime for which he or she may be subject to imprisonment in state prison for life without the possibility of parole was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes. SEC. 7. (a) The State of California shall not carry out any execution following the enactment of this act unless the voters fail toappealapprove Sections 2 to 6, inclusive, of this act. (b) In any case where a defendant or inmate was sentenced to death prior to the date of the enactment of this act, upon voter approval of this act, the sentence of each defendant or inmate shall automatically be converted to life imprisonment without the possibility of parole under the terms and conditions of this act. SEC. 8. The provisions of this act are severable. If any provision of this measure or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. SEC. 9. (a) Sections 2 to 6, inclusive, amend or repeal provisions of law added or amended by initiatives, and shall only be effective if submitted to and approved by the electors at the next statewide general election. (b) The Secretary of State shall place Sections 2 to 6, inclusive, on the ballot of the next statewide general election.