Bill Text: CA SB490 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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

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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 Sections  190.1, 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
to  appeal   approve  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.