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SR 08-23-2011 13H13-H August 23, 2011 Council Meeting: Santa Monica, California CITY CLERK'S OFFICE -MEMORANDUM To: City Council From: Councilmember Mckeown Date: .August 23, 2011 13-H: Request of Councilmember McKeown that the Council support SB490 {Hancock), which would allow California voters to decide whether to change death penalty sentences to life imprisonment without the possibility of parole, and direct staff to convey the City of Santa Monica's support to state legislators and Governor Brown. 13-H August 23, 2011 1 BILL ANALYSIS 0 Date of Hearing: August 17, 2001 ASSEMBLY COMMITTEE ON APPROPRIATIONS Felipe Fuentes, Chair SB 490 (Hancock) - As Amended: August 15, 2011 Policy Committee: SafetyVote:5-2 Public Urgency: No State Mandated Local Program: No Reimbursable: SUMMARY This bill, upon approval of the voters in November 2012 general election, substitutes life-without-possibility-of-parole (LWOP) for the death penalty as punishment for persons convicted of first-degree murder with special circumstances. This bill states that in any case where a defendant was sentenced to death .prior to or following enactment of this measure, upon voter approval, the sentence~of each defendant shall convert to LWOP. FISCAL EFFECT Moderate one-time GF costs, in the range of $220,000, for ballot arguments and printing, offset by major annual GF, local, and federal savings in the range of $150 million - if the measure is approved by the voters - primarily from reduced legal costs. Specifically: 1)Assuming a cost of about $55,000 per ballot pamphlet page, one-time GF costs for ballot arguments and printing would be about $220,000. 2)The cumulative annual state and local court-related savings from converting the death penalty to.LWOP could range from about $75 million to $100 million, according to two recent studies - A 2011 Loyola University Law review study, Executing the Wi11 of the Voters?: A Roadmap to Mend or End the California Legislature's Multi-Million-Dollar Death Penalty Debacle (Loyola), by Arthur Alarcon, Senior Judge, U.S. Court of Ninth Circuit Court of Appeals, and former L.A. County Deputy D:A., and Paula Mitchell, Professor of Law, Loyola Law School, and the 2008 Final Report of the California Commission SB 490 Page 1 on the Fair Administration of Justice (Commission), chaired by John Van de Kamp, former California Attorney General. Specifically, these annualized savings break down as follows: a) Annual Pre-trial and trial costs in the range of $20 to $40 million (GF, with county funds for prosecution) based on the average number of annual .death penalty cases. The Loyola study estimated a death penalty trial costs about $1 million more than a non-death penalty trial,-while the Commission estimated what they termed a "conservative" differential of $500,000 per trial. These savings include: i) No need for two death-penalty-qualified, usually taxpayer-funded, attorneys per side. ii) Death penalty trials generally require multiple investigators and expert witnesses. iii) Death penalty jury selection takes considerably longer than non-death penalty cases. iv) Death penalty trials require two phases, a guilt phase and a separate penalty phase. v) Required daily court transcripts. b) Automatic state appeal and habeas costs (GF) in the range of $55 million,. including: i) California Supreme Court: $15 million ii) Habeas Corpus Resource Center: $14 million iii) State Public Defender: $12 million iv) Attorney General's Office r $13 million 3)In addition to the potential $75 million to $100 million annual state and local court-related savings,. there will be someamount of GF incarceration savings. The California Department of Corrections (CDCR) estimates an annual savings of less than $10 million, while the Loyola and Commission studies suggest there would be significant annual GF incarceration savings in the range bf $60 to $70 million, though both studies acknowledge the lack of documentation for these estimates. SB 490 Page 2 The studies assume an annual cost differential of about $90,000 per death row inmate, due to such factors as SB 490 Page 3 single-Gelling, extra guarding, and medical costs, though the study concedes this figure cannot be substantiated. CDCR estimates an annual differential of about $12,000, which amounts to anannual savings of about $8.5 million. 4)In additionto the $75 million to $100 million annual and local savings, there would be annual federal habeas cost savings in the range of $15 million. 5)Potential one-time capital outlay savings, in the range of $350 million, to the extent eliminating the need for a death row removes the legal and physical pressure to renovate or build new death row housing. The current death row atSan Quentin is antiquated by all accounts and will eventually need to be replaced. Gov. Brown recently aborted the $350 million 1,200 bed Condemned Inmate Complex at San Quentin, but conditions of confinement legal challenges will continue, as will the physical challenges of San Quentin's dilapidated death row. 6)Negligible potential out-year costs as a result of longer LWOP terms, as opposed to executions. Given that the average time between sentence and execution in California is about 24 years and growing, due to severe backlogs in appointment (and availability) of counsel for direct appeals and habeas petitions, as well as severe backlogs in review of appeals and habeas petitions by the courts, and given that 13 persons have been executed in California in 33 years, while 102 death row inmates have died, and 133 have had their sentences vacated by state and federal courts, it is unlikely substituting LWOP for the death would result in additional incarceration costs. CONIMENTS 1)Rationale The author and proponents contend capital punishment in California is a costly failure with no demonstrable deterrent effect, which serves only to drain state and local budgets of funds at the expense of actually protecting public safety. The author cites several studies that question the value of supporting the death penalty structure, at an annual cost of at least $100 million, when the death penalty "is the law in nameonly, and not in reality," (Commission) and cites $4 billion in related capital punishment expenditures since 1978, SB 490 Page 4 with 13 executions in that time. According to the author, "Study after study has shown that capital punishment as a penalty is not a deterrent and that the multiple appeals that drag on for years and years multiply costs and add to the uncertainty and anxiety of victims. "The death penalty failings cannot be fixed. Distinguished prosecutors such as Los Angeles County's long-time DA Gil Garcetti have come out against it. It is time for the Legislature to act. "It is not simply a cost issue. More than a dozen people were wronglyexecuted in Illinois before that state banned the death penalty earlier this year. I don't want to see that kind of tragic statistic in California. We need to join Illinois and the 15 other states that have chosen to substitute life imprisonment without the possibility of parole for a failed death penalty. "Today, we're not tough on crime; we're tough on the taxpayer. Every time we spend money on failed policies like the death penalty, we drain money from having more police officers on the street, more job training, more education, more of the things that would truly make for safer communities." 2)Recent reports criticize the cost and administration of the death penalty in California, and urge major change. Several recent reports by authors and/or entities that claim neutrality on the existence of capital punishment state that the death penalty is so costly, so cumbersome, and so rarely carried out, that alternatives must be considered, such as (a) narrowing the application to a more limited set of special circumstances to encompass the worst of the worst, which could dramatically reduce costs and backlogs; (b) a significant annual expenditure increase (in the range of $100 million) for defense counsel, which would reduce, but hardly eliminate backlogs (by some estimates doublingannual expenditures would decrease the average 24-year gap between sentence and execution to about 12 years); or (c) abolishing the death penalty, replacing it with LWOP, the most fiscally conservative alternative. - a) The Loyola report posits that the effect of California's failure to reform its capital punishment system "has been SB 490 Page 5 the perpetration of a multi-billion fraud on California taxpayers." The report concludes, "The truth is that California's administration of the death penalty has produced unconscionable delays - not justice. Tt is unjust to incarcerate condemned prisoners on death row for decades without reviewing their federal constitutional claims while many who may have been entitled to release or to a new trial or sentence proceeding die. "California's voters must decide whether the death penalty system should be reformed or abolished because the cost of maintaining the current system without reform is unsupportable." b) The Commission report states, "After careful study, the Commission finds itself in full agreementwith (former) California Chief Justice Ron George in his conclusion that California's death penalty system is dysfunctional. "The system is plagued with excessive delay inthe appointments of counsel for direct appeals and habeas corpus positions, and a severe backlog in the review of appeals andhabeas petitions in the California Supreme Court?. "The failures in the administration of California's death penalty law create cynicism and disrespect for the rule of law, increase the duration and cost of confining death row inmates, weaken any possible deterrent benefits of capital punishment, increase the emotional trauma experienced by murder victims' families, and delay the resolution of meritorious capital appeals." c) Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After its Re-instatement in 1976 2011, a report by theDeath Penalty Information Center, concludes, "As the use of the death penalty has declined, the rationale for its continuation has disappeared-. With defendants already facing LWOP, no one is likely to be deterred by an added punishment that is rarely imposed and even more rarely carried out many years later, and that is dependent on so many unpredictable factors.Nor does the wish for retribution justify a death penalty that SB 490 Page 6 is-applied so sporadically. The reality is that those in society generally, and those families of murder victims in particular, who look to an execution to counter a terrible homicide will likely be very disappointed. Very few of those cases result in execution, and those that do are often not the most heinous, but merely the most unlucky, recalling Justice Stewart's comparison in 1972 that receiving the death penalty is like being struck by lightning." ("These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.") 3)Backlogs. California has the longest gap between sentence and execution, about 24 years and growing. Reasons for this gap include: a) Delay in appointing counsel to handle direct appeals to the state Supreme Court. About 100 inmates are awaiting appointment of counsel. The current wait is about five years. b) Delay in scheduling the case for a hearing before the state Supreme Court, which has a backlog of about 100 cases. Former Chief Justice Ron George, testifying to the Commission said, "Even if the California Supreme Court abandoned its review of all other matters and reviewed only death penalty cases, it would take a minimum of three to four years to process the existing backlog of death penalty appeals and state habeas corpus petitions." c) Delay in appointing counsel for state habeas petitions. Some 325 inmates await appointment of counsel to handle these petitions, with delays of about 10 years. d) Delay in appointing counsel for federal habeas petitions and appeals, and in deciding petitions and appeals, with delays of aboutl0 years. As the Commission noted, "While it is widely assumed that delays benefit those confined on death row by prolonging their lives, it should be noted that California inmates with meritorious claims are also denied prompt disposition of those claims. In cases where the judgment ofguilt and/or the sentence were vacated between 1987 and 2005, the average delay was 11 years." SB 490 . Page 7 4)Current law makes first-degree murder with special circumstances punishable by death or LWOP and limits the death penalty to caseswhere the trial jury finds at least one special circumstance. Currently, the Penal Code lists 22 separate categories of special circumstances. _ a) The murder was intentional and carried out for financial gain. b) The defendant was convicted previously of first- or second-degree murder. c) The defendant, in the present proceeding, is convicted of more than one murder. d) The murder was committed by meansof a planted destructive device. e) The murder was committed to avoid arrest or make an escape.- f) The murder was committed by means of a mailed destructive device. g) The victim was a peace officer intentionally killed while performing his orher duties. h) The victim was a federal lawenforcement officer who was intentionally killed. i) The victim was a firefighter intentionally killed while performing his or her duties. j) The victim was a crime witness killed to prevent testimony. aa) The victim was a prosecutor murdered in retaliation for official duties. bb) The victim was a local, state, or federal judge murdered in retaliation for official duties. cc) The victim was an elected or appointed official murdered in retaliation for official duties. dd) The murder was especially heinous, atrocious,. or cruel. ee) The defendant intentionally killed the victim while lying in wait. ff) The victim was intentionally killed because of his or her race, color, or religion. gg) The murder was committed while the defendant was engaged in the commission of the following crimes: robbery; kidnapping; rape; sodomy; lewd or lascivious act on a child under age 14; oral copulation; burglary; arson; train wrecking; mayhem; rape by instrument; carjacking; torture; poison; the victim was a local, state or federal juror murdered in retaliation for, or to prevent the performance SB 490 Page 8 of his or her official duties; and, the murder was perpetrated by discharging a firearm from a vehicle. - hh) The murder was intentional and involved torture. ii) The defendant intentionally killed the victim by poison. jj) The victim was a juror murdered in retaliation for official-juror duties. aaa) The murder was intentional and committed by firearm from a motor vehicle. bbb) The defendant intentionally killed the victim while participating in a criminal street gang. First-degree murder without special circumstances is punishable by 25-years-to-life. 5)Brief History of the Recent Death Penalty In 1972 the California Supreme Court held the death penalty constituted crueland unusual punishment under the state constitution (Anderson), and all death sentences were commuted to LWOP. Also in 1972, the O.S. Supreme Court held the death penalty was being administered in an arbitrary fashion that amounted to cruel and unusual punishment (Furman). (States halted executions in 1967, anticipating a O.S. Supreme Court ruling.) The U.S. Supreme Court did notrule on the constitutionality of the death penalty itself at this. time, and many states re-wrote their statutes in an effort to address the issue of arbitrariness. In 1976 the O.S. Supreme Court declared the death penalty constitutional, assuming new stae statutes would sufficiently address issues of arbitrariness, and executions resumed in some states. In California, nine months after Anderson, California voters nullified Anderson, passing Proposition 17, which amended the Constitution to specify the-death penalty is not cruel and unusual punishment. In 1973, the Legislature enacted statute making the death penalty mandatory for first-degree murder and one or more of l0 .special circumstances. The state Supreme Court, however, held this mandatory death penalty was unconstitutional, as it disallowed consideration of circumstances. In 1977 the California Legislature passed legislation re-establishing capital punishment and providing for a separate penalty phase at trial; basedon 12 special SB 490 Page 9 circumstances. Gov. Jerry Brown promised to veto the bill and he did. The Legislature overrode the veto. The 1977 statute also brought California into conformity with federal requirements. In 1978 Proposition 7 added 16 special circumstances, and the first execution under the re-established death penalty occurred. In 1990, Propositions 114 and 115 added five more special circumstances. In 1996, Propositions 195 and 196 added three more special circumstances. In 2000, Propositions 18 and 21 added three more special circumstances. 6)Current Death Penalty Statistics Thirty-four states have capital punishment. California has the largest death row in the country, with 714 condemned inmates. Since re-establishment of capital punishment in 1978, 13 persons have been executed in California, and 1,263 nationwide. California has not execute d. anyone since 2006. There were about 3,300 inmates on death row in the U.S.-as of last November. Florida has 400, Texas, 325, Pennsylvania, 225, and Alabama, 205. Since 1976 Texas has executed 472 persons; Virginia, 108; Oklahoma, 96; Florida, 69; and Missouri, 68. In California men on death row are housed at San Quentin and women at the Central California Women's Facility near Chowchilla. There are 19 women on death row. Ethnicity: white, 36a; black, 360; Hispanic, 220; other, 5$. Age: 20-29, 30; 30-39, 20%; 40-49, 35°s; 50-59, 29a; 60-69, 120; 70-89,- 1°s. 7)Other States. Of the 16 states without capital punishment, three abolished the death penalty within the past four years. New Jersey repealed the death penalty and commuted all death sentences to LWOP.in 2007 after its death penalty commission concluded "costs of the death penalty are greater than the costs of life in prison without parole?" _ New Mexico repealed the death penalty in 2009, based on its fiscal report.. SB 490 Page 10 Illinois eliminated the death penalty last March after 13 condemned persons were found to be innocent. The Illinois commission report on capital punishment stated, "The Commission was unanimous in the belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee that no innocent person is ever again sentenced to death." A death penalty commission in Maryland estimated that the average cost of a death penalty case was about $2 million more than a non-capital case and recommended abolition of the death penalty. The recommendation was rejected and Maryland revised its death penalty to apply only to cases with biological evidence, such as DNA, or videotaped evidence, or a videotaped confession. Twelve of the 34 remaining death penalty states have requested cost review studies. 8)Other Nations According to a 2010 Amnesty International Report, 95 countries have no death penalty, 35 have no death penalty in practice, and 58 retain the death penalty. In 2009 eight countries sentenced more than 100 persons to death: China (number unknown); Iraq, more than 366; Pakistan 276; Afghanistan, more than 133; Sri Lanka, 108; the U.S., 105; and Algeria, 100. In 2009, five countries executed more than 50 persons: China (number unknown); Iran more than 388; Iraq, more than 120; Saudi Arabia, more than 69; and the U.S., 52. In North and South America and Europe, only the U.S. executed anyone in 2009. Innocence Issues. According to the Death Penalty Information Center, between 1973 and 2007, nationally 138 death row inmates have been exonerated and released from death row. The Commission cites 205 exonerations of persons convicted of murder nationally between 1989 and 2003, including 74 sentenced to death. Fourteen of the exonerations occurred in California, three were on death row. "The commission has learned of no credible evidencethat California has ever executed an innocent person. Nonetheless, the Commission cannot conclude with confidence that the administration of the death penaltyin California eliminates the risk that innocent persons might be convicted and SB 490 Page 11 sentenced to death." 10)Retroactive Application. This bill specifies that in any case where a death sentence was imposed prior to enactment of the act, the sentence shall convert to LWOP. The Assembly Public Safety Committee analysis of this bill includes a discussion in reference to this provision. The California Supreme Court held in In re Estrada (1965) 63 Ca1.2d 740 that when, pending finality of a conviction, the Legislature reduces the penalty for that offense, the defendant is entitled to the benefit of that change in the law. However, the retroactivity provisions of this bill apply to judgments that are already final. The Estrada court noted, "It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.-" Estrada draws a.distinction between final andnon-final judgments becauseof the separation of powers doctrine. "This doctrine unquestionably places limits upon the actions of each branch with respect to the other branches. The judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function. The executive branch, in expending public funds, may not disregard legislatively prescribed directives and limits pertaining to the use of such funds. And the Legislature may not undertake to readjudicate controversies that have beenlitigated in the courts and resolved by final judicial judgment." YSuperior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53, citations omitted.] Therefore,anautomatic conversion of a death sentence to LWOP arguably violates the separation of powers doctrine. It can also be argued, however, that the bill's retroactivity provision can apply to final judgments without violating the separation of powers doctrine. To execute a defendant after Ss 490 Page 12 the state has abolished the death penalty because his or her judgment was already final would give rise to equal protection challenges under the state and federal constitutions. The two groups of prisoners would be similarly situated since the only thing distinguishing them would be the date of finality of their judgments. Likewise, because of the legislative declarations regarding abolition of the death penalty as a cost-saving measure, the effect of altering final judgments of death might be viewed as incidental to a larger legislative purpose restructuring a class of sentences in order to realize the intended cost savings. 11).Supporters including the ACLU, the defense bar and the CA Catholic Conference contend this bill will save money, enable funding to be refocused on protecting public safety, and provide justice to victims and offenders alike. According to the ACLU, "With sentences of life without possibility of parole, we can hold criminals accountable, provide victims with the finality they deserve, and keep dangerous criminals behind bars for the rest of their lives. In addition, we eliminate the terrible risk of executing an innocent person. Finally, with the money we save, we can support criminal justice policies that actually work, like increasing law enforcement, which makes a positive difference in the safety of our community. According to the Conference of California Bar Associations, "SB 490 is a practical bill. Whateverone may think of the death penalty as a moral issue, it is clear that California's death penalty law may well be the most expensive and least effective in the nation." 12)Opponents , including a long list of law enforcement organizations, contend the death penalty is an effective deterrent and that itselimination would disrespect victims. According to Crime Victims United of California, "With all due respect, SB 490 is an insult to murdervictims. Such action says to victims that even though you have waited decades for justice, that justice is too expensive and not important to the State of California. California's execution process moves along at an incredibly slow pace, allowing for a virtually unending time frame for appeals - a major cost driver. That said, twelve-member juries unanimously found these criminals SB 490 Page 13 guilty beyond a reasonable doubt. Even though the jurors faced the agonizing choice of deciding whether a convicted murderer should die or spend the rest of his or her life in prison, decided that the aggravating factors outweighed the mitigating factors, and voted unanimously in favor of execution." The CA District Attorneys Association states, "First, we must convey that we as an association share the public's support of the death penalty. As it is currently constituted, the death penalty is a legally appropriate response to the most heinous crimes that can be .committed. The death penalty deters future criminality, especially by permanently incapacitating potential repeat offenders, and acknowledges the fact that certain offenses are so serious that a penalty for violations thereof as strong and final as death must be available?. "Further, wefeel the conversion of these sentences raises potential constitutional separation of powers issues inasmuch as the Legislature would be effectively changing sentences that were appropriately imposed by the judiciary." 13)Related Legislation includes: a) SB 1025 (Harman), 2010> required the Supreme Court to develop necessary rules and procedures for initiating habeas petitions in the Superior Court. The bill failed passage in Senate Public Safety. b}- SB 1471 (Runner), 2008, required habeas petitions in death penalty cases to be filed within one year, changed the standards for competent counsel; and provided that habeas petitions in capital cases be filed in superior court. The bill failed in Senate Public Safety c) SB 315 (Harman), 2007, required all appellate attorneys who acceptappointments for indigent parties to accept appointment s. for capital appeals regardless of qualifications. The bill, which was a gut and amend in~the Assembly, failed in Assembly Public Safety. d) SB 636/SB 378 (Harman/Morrow), 2007/2005, created a new type of post-conviction review in capital cases instead of habeas corpus and changed the standards for counsel in capital cases. The bills failed in Senate Public Safety. SB 490 Page 14 e) SB 1257 (Morrow), 2006, expedited the appellate process for capital cases by specifying timeframes for appointment of counsel, certification of the record and filing of the opening brief, and by requiring any person appointed to a non-capital appeal to also be available to take a capital appeal. The bill failed in Senate Public Safety. £) SB 1119 (Migden), 2006; required the Board of Parole Hearings to conduct clemency hearings whenever an inmate sentenced to death submits a written request for a hearing. The bill was held in this committee. g) AB 2266/AB 1121, (Lieber/KOretz), 2006, placed a moratorium on the death penalty until the Legislature considered recommendations of the Commission on the Fair Administration of Justice. Required voter approval. The bills were held in this committee. h) AB 1512/557 (Aroner), 2001/2002, prohibited the death penalty for people determined to be mentally retarded. AB 1512 was held in this committee. AB 557 failed concurrence on the Assembly Floor. Analysis Prepared by Geof£ Long / APPR. / (916) 319-2081 BILL NUMBER: SB 490 AMENDED BILL TEXT AMENDED IN ASSEMBLY AUGUST 15, 2011 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, approvedby 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 -~~_~~_~~'"es~he veFe~s <_: .H; .. r; , , and ...,,:ld provide that where a defendant or inmate was sentenced to death prior to the date of th= _.___________ voter approval of the bill, upon voter approval of -=,h'__ the bill, the defendant's or inmate's sentence would automatically be converted to life imprisonment without the possibility of parole. The bill would require persons sentenced pursuant to the provisions of the bill to work in a maximum security prison forthe term o£ their imprisonment, as specified. 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 -r.~~~ November 6, 2012, 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 o£ 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 o£ 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) o£ 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 hisor her duties, and any o£ 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) o£ 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. (f) Every person found guilty of murder and sentenced pursuant to this section shall be required to work within a maximum security prison as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by th e~ rules and regulations of the Department of Corrections and Rehabilitation, pursuant to Section 2700. In any case where the inmate owes a restitution fine or restitution order, the secretary shall deduct money from the wages and trust accountdeposits of the inmate and shall transfer those funds to the California Victim Compensation and Government Claims Board according to the rulesand regulations of the department, pursuant to Sections 2085.5 and 2717.8. 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 convictedof more than one offense of murder in the first or second degree. (4) Themurder 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 thevictim 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 orher 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 killedfor the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and thekilling 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 002 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 inthis or any other state, and the murder wasintentionally 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 anyother 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 killedbecause 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 aftercommitting, or attempting to commit, the following felonies: (A) Robbery in violation of Section 211 or 212.5. (B) Kidnappingin 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 thepurpose 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 towhom 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 theoffense 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 prisonfor life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (aj 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, shallbe 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 thissection and Sections 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 bemade by the trier of fact on the evidence presented at the trial. (2) In case o£ 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 thateach special circumstance charged is eithertrue 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 o£ 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. I£ the defendant was convicted by a plea of guilty, the trier o£ 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 o£ 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 o£ 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. 3'E6". 7. ~3-i-i-xx'^~~_+„ „c r-., ~.c,,..._.: s.§a~"~--ixvc ea~~y ....~ ..y ........ .. ~.,~~.,.. ~..y ~.,^ ^F .,.. .~-.~,-ss the vete~s~a4-~teuapp~eae Seet~e~~ 2-z= ~,+_-_~~_~_-•_si~; e€ '-~~~~~ ~~ SEC. 7. In any case where a defendant or inmate was sentenced to death prior to Tw_ ''^`^ ^` '-'~^ voter approval o£ 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 o£ parole under the terms and conditionsof this act. SEC. 8. The provisions of this act are severable. Ifany 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, of this act amend or repeal provisions of law addedor amended by initiatives, and shall only be e£fectiveif submitted to and approved by the electors at the ...,~~ -.,t-.. ^••'^'^ ' ^'^ . November 6, 2012, statewide general election. (b) The Secretary of State shall place Sections 2 to 6, inclusive, on the ballot of the -a~~ November 6, 2012, statewide general election.