MEASURE :  S.B. No. 490
AUTHOR(S) :  Margett.
TOPIC :  Murder:  special circumstances.
HOUSE LOCATION :  SEN

TYPE OF BILL :
                Active
                Non-Urgency
                Non-Appropriations
                Majority Vote Required
                Non-State-Mandated Local Program
                Fiscal
                Non-Tax Levy

LAST HIST. ACT. DATE:  03/12/2001
LAST HIST. ACTION   :  To Com. on  PUB. S.
COMM. LOCATION :  SEN PUBLIC SAFETY

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

BILL NUMBER: SB 490 INTRODUCED
 BILL TEXT
 

INTRODUCED BY   Senator Margett

                        FEBRUARY 22, 2001

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

 LEGISLATIVE COUNSEL'S DIGEST
 

   SB 490, as introduced, Margett.  Murder:  special circumstances.
   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.  Existing law
also permits these provisions to be amended by a 2/3 vote of each
house of the Legislature, or by submission to, and approval by, the
voters of California.
   This bill would add as a special circumstance, the circumstance
where the victim was protected by a restraining order or other
protective order directed against the defendant.
   The bill would provide that it shall become effective only when
submitted to, and approved by, the voters of California.
   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 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 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.

   (23) The victim was protected by a restraining order or other
protective order directed against the defendant.
   (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 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. 2.  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.