Proposition 195: Text of Proposed Law

This law proposed by Senate Bill 32 (Statutes of 1995, Chapter 477) is submitted to the people in accordance with the provisions of Article II, Section 10 of the Constitution. This proposed law amends a section of the Penal Code; therefore, existing provisions proposed to be deleted are printed in strikeout type and new provisions proposed to be added are printed in italic type to indicate that they are new.

PROPOSED LAW

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 shall be death or confinement imprisonment in the state prison for a term of life without the possibility of parole in any case in which 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 previously convicted previously of murder in the first degree 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 has , 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 a human being one or more human beings.
(5) The murder was committed for the purpose of avoiding or preventing a lawful arrest or to perfect, or attempt , 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 cause 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 a human being 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 above-enumerated sections of the Penal Code , or a former peace officer under any of such 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 state 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 the State of California, or in this or any other state of the United States , 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 a any local or state government of California, or of any local or state government of any other state in the United States 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 utilized used in this section, the phrase especially "especially heinous, atrocious , or cruel , manifesting exceptional depravity depravity" means a conscienceless , or pitiless crime which that is unnecessarily torturous to the victim.
(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 the immediate flight after committing , or attempting to commit , the following felonies:

(i)
(A) Robbery in violation of Section 211 or 212.5.
(ii)
(B) Kidnapping in violation of Section 207 or , 209 , or 209.5 .
(iii)
(C) Rape in violation of Section 261.
(iv)
(D) Sodomy in violation of Section 286.
(v)
(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.
(vi)
(F) Oral copulation in violation of Section 288a.
(vii)
(G) Burglary in the first or second degree in violation of Section 460.
(viii)
(H) Arson in violation of subdivision (b) of Section 451.
(ix)
(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.


(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.
(b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer , as to whom such 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 a term of 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 suffer be punished by death or confinement imprisonment in the state prison for a term of life without the possibility of parole , in any case in which if one or more of the special circumstances enumerated in subdivision (a) of this section 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 felony results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall suffer be punished by death or confinement imprisonment in the state prison for life without the possibility of parole , in any case in which if a special circumstance enumerated in paragraph (17) of subdivision (a) of this section has been found to be true under Section 190.4.
The penalty shall be determined as provided in this section and Sections 190.1, 190.2, 190.3, 190.4, and 190.5.
SEC. 2. 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 shall be death or confinement imprisonment in the state prison for a term of life without the possibility of parole in any case in which 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 previously convicted previously of murder in the first degree 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 has , 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 a human being one or more human beings.
(5) The murder was committed for the purpose of avoiding or preventing a lawful arrest or to perfect, or attempt , 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 cause 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 a human being 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 above-enumerated sections of the Penal Code , or a former peace officer under any of such 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 state 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 the State of California, or in this or any other state of the United States , 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 a any local or state government of California, or of any local or state government of any other state in the United States 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 utilized used in this section, the phrase especially "especially heinous, atrocious , or cruel , manifesting exceptional depravity depravity" means a conscienceless , or pitiless crime which that is unnecessarily torturous to the victim.
(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 the immediate flight after committing , or attempting to commit , the following felonies:


(i)
(A) Robbery in violation of Section 211 or 212.5.
(ii)
(B) Kidnapping in violation of Section 207 or , 209 , or 209.5 .
(iii)
(C) Rape in violation of Section 261.
(iv)
(D) Sodomy in violation of Section 286.
(v) (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.
(vi)
(F) Oral copulation in violation of Section 288a.
(vii)
(G) Burglary in the first or second degree in violation of Section 460.
(viii)
(H) Arson in violation of subdivision (b) of Section 451.
(ix)
(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.


(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.
(b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer , as to whom such 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 a term of 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 suffer be punished by death or confinement imprisonment in the state prison for a term of life without the possibility of parole , in any case in which if one or more of the special circumstances enumerated in subdivision (a) of this section 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 felony results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall suffer be punished by death or confinement imprisonment in the state prison for life without the possibility of parole , in any case in which if a special circumstance enumerated in paragraph (17) of subdivision (a) of this section has been found to be true under Section 190.4. The penalty shall be determined as provided in this section and Sections 190.1, 190.2, 190.3, 190.4, and 190.5.
SEC. 3. This act affects an initiative statute and shall become effective only when submitted to and approved by the voters pursuant to subdivision (c) of Section 10 of Article II of the California Constitution.

SEC. 4. Section 2 of this bill incorporates amendments to Section 190.2 of the Penal Code proposed by both this bill and SB 9. It shall only become operative if (1) both this bill and SB 9 are submitted to and approved by the voters pursuant to subdivision (c) of Section 10 of Article II of the California Constitution and become effective on the same date, (2) each bill amends Section 190.2 of the Penal Code, and (3) this bill receives more affirmative votes from the voters than SB 9, in which case Section 1 of this bill shall not become operative.



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