California Assembly Bill AB2098 Introduced / Bill

 BILL NUMBER: AB 2098INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Levine FEBRUARY 20, 2014 An act to amend Section 190.3 of the Penal Code, relating to the death penalty. LEGISLATIVE COUNSEL'S DIGEST AB 2098, as introduced, Levine. Death penalty: sentencing: mitigating circumstances. Existing law, as added by the Briggs Initiative, a measure approved by the voters at the November 7, 1978, statewide general election, among other things, provides that persons convicted of first degree murder are subject to death or life in prison without the possibility of parole if any specified special circumstance is found to be true. Existing law also provides that in determining the penalty, the trier of fact is required to take into account certain mitigating and aggravating factors, if relevant, including, but not limited to, the presence or absence of any prior felony conviction, and whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. This bill would add whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service, as a mitigating factor. The California Constitution authorizes the Legislature to amend or repeal an initiative statute by another statute that becomes effective when approved by the electors. This bill would provide that its provisions will become effective only upon approval of the voters, and would provide for the submission of this measure to the voters for approval at a statewide 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. Section 190.3 of the Penal Code is amended to read: 190.3. If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to the death penalty after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence  ,  including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not  such   that  conviction or  those  convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant  which   that  involved the use or attempted use of force or violence or  which   that  involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition  ,  and physical condition. However,  no  evidence shall  not  be admitted regarding other criminal activity by the defendant  which   that  did not involve the use or attempted use of force or violence or  which   that  did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction. However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing  such   that evidence to be used in any other proceedings. Except for evidence in proof of the offense or special circumstances  which   that  subject a defendant to the death penalty,  no  evidence  may   shall not  be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without  such   that  notice in rebuttal to evidence introduced by the defendant in mitigation. The trier of fact shall be instructed that a sentence of confinement to state prison for a term of life without the possibility of parole may in future after sentence is imposed, be commuted or modified to a sentence that includes the possibility of parole by the Governor of the State of California. In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: (a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1. (b) The presence or absence of criminal activity by the defendant  which   that  involved the use or attempted use of force or violence or the express or implied threat to use force or violence. (c) The presence or absence of any prior felony conviction. (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. (e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act. (f) Whether or not the offense was committed under circumstances  which   that  the defendant reasonably believed to be a moral justification or extenuation for his  or her  conduct. (g) Whether or not defendant acted under extreme duress or under the substantial domination of another person. (h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his  or her  conduct or to conform his  or her  conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication. (i) The age of the defendant at the time of the crime. (j) Whether or not the defendant was an accomplice to the offense and his  or her  participation in the commission of the offense was relatively minor.  (k) Whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service.   (k)   (l)  Any other circumstance  which   that  extenuates the gravity of the crime even though it is not a legal excuse for the crime. After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account  ,  and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole. SEC. 2. Section 1 of this act amends the Briggs Initiative of 1978, Proposition 7, an initiative statute, and shall become effective only when submitted to and approved by the voters. The Secretary of State shall submit Section 1 of this act for approval by the voters at a statewide election in accordance with Section 9040 of the Elections Code.