McGeorge School of Law

Proposition 18

Proposition 18:
Murder: Special Circumstances

By Valery Loumber

Copyright © 2000 by University of the McGeorge School of Law

JD, McGeorge School of Law, University of the Pacific
to be conferred 2000
B.A., Human Biology & Minor in Chemistry, La Sierra University, 1997

Table of Contents

Executive Summary

Description

Statutory Interpretation

Constitutional Analysis

Policy Questions

Conclusion

 

 

Executive Summary

Proposition 18, the Murder/Special Circumstances initiative, would expand capital punishment for lying in wait, arson, and kidnapping murders. Proposition 18 is a legislative initiative statute which has already been passed by the Legislature and signed by the Governor. Voter approval is required because Proposition 18 amends Penal Code § 190, which was enacted by a voter initiative, and amendments to Section 190 require voter approval.

For purposes of imposing the death penalty, Proposition 18 eliminates the distinction between while lying in wait murders and by means of lying in wait murders by making all intentional murders committed by means of lying in wait special circumstances murders. With respect to arson and kidnapping, Proposition 18 expands the death penalty to encompass all murders committed in the course of an arson or kidnapping.

Chapter 2 of this Analysis outlines both the existing and the Proposition 18 law. Chapter 3 addresses statutory interpretation difficulties that California courts might have with the Initiative. Chapter 4 deals with some potential constitutional problems and Chapter 5 discusses some policy questions associated with Proposition 18.

Description

A. Introduction

Under existing California law, murder is the "unlawful killing of a human being with malice aforethought." (Cal. Penal Code § 187 (West 1996).) Murder is classified as either first or second-degree murder. (Cal. Penal Code § 189.) First-degree murders are classified as either with or without special circumstances. (Id.) The punishment for first-degree murders with special circumstances is death or life without the possibility of parole. (Cal. Penal Code § 190.2(a) (West 1996).) First-degree murders without special circumstances are punishable by imprisonment of 25 years to life. (Cal. Penal Code § 190 (West 1998).) Existing law enumerates 31 special circumstances that, if charged and found to exist, would result in a punishment of death or life without the possibility of parole. (Cal. Penal Code § 190.2(a).) Among the 31 special circumstances are murders involving the intentional killing of the victim "while lying in wait" and murders committed while the defendant was engaged in the commission or attempted commission of arson or kidnapping. (Cal. Penal Code §§ 190.2(a)(15), 190.2(a)(17)(B), and 190.2(a)(17)(H).)

B. Lying in Wait Murders

1. Existing Law

Under existing law, all murders committed "by means of lying in wait" are first-degree murders. (Cal. Penal Code § 189 (West 1993).) Lying in wait murders are classified as either with or without special circumstance. (Id.; see also Cal. Penal Code § 190.2(a)(15) [defining lying in wait special circumstance].)

The language used for lying in wait with special circumstance is interpreted more narrowly than the language describing lying in wait without special circumstance. (See People v. Morales (1989) 48 Cal. 3d 527, 558 [quoting Domino v. Superior Court (1982) 129 Cal. App. 3d 1000, 1011].) Special circumstance lying in wait murders involve a defendant who "intentionally killed the victim while lying in wait." (Cal. Penal Code § 190.2(a)(15).) The California Supreme Court has interpreted the "while lying in wait" language as either requiring the killing to occur during the period of lying in wait or the fatal acts to begin at and continue uninterrupted from the moment the lying in wait ceases. (See People v. Morales (1989) 48 Cal. 3d 527, 558.) For example, if a defendant fails to kill the victim immediately following the lying in wait period because the victim resists the defendant, the defendant would be death-eligible as long as his fatal action of beating the victim continues uninterrupted until the victim’s death. (See People v. Morales (1989) 48 Cal. 3d 527, 558.)

On the other hand, lying in wait murders without special circumstance involve "all murder[s] which [are] perpetrated by means of . . . lying in wait." (Cal. Penal Code § 189.) California courts have interpreted the "by means of lying in wait" language as requiring the lying in wait period to be separated by a "cognizable interruption" from when the killing occurs. (Domino v. Superior Court (1982) 129 Cal. App. 3d 1000, 1011.) For instance, a defendant’s five to twenty minute conversation with the victim, between the period of lying in wait and the killing, is sufficient to constitute a "cognizable interruption" to support a lying in wait first-degree murder conviction. (See People v. Ceja (1993) 4 Cal. 4th 1134, 1138, 1145.)

As a result, under existing law, death or life without the possibility of parole may be charged only if the murder occurred while the defendant was lying in wait, i.e. the defendant’s fatal acts commenced during the period of lying wait and continued uninterrupted until the victim was killed. (See People v. Morales (1989) 48 Cal. 3d 527, 558.) However, if the defendant’s fatal acts commenced only after the lying in wait period has ceased, i.e. the defendant killed the victim by means of lying in wait, the maximum punishment that may be imposed on the defendant is 25 years to life. (See id.) Consequently, defendants who commit murder by means of lying in wait are punished less severely than defendants who can not show a cognizable interruption between the lying in wait period and the killing of the victim. (See id. at 558 [holding that a defendant whose acts flowed continuously from the moment of the surprise attack is death-eligible].)

2. Proposition 18

In order to eliminate the distinction between while and by means of lying in wait murders, California lawmakers have enacted Proposition 18. (Murder / Special Circumstances Initiative, Stats. 1998 c. 629, to be codified at Cal. Penal Code § 190.2, subject to approval by California voters in March 2000.) The Initiative makes all intentional murders committed by means of lying in wait special circumstance murders. (See id.) Therefore, a defendant who intentionally kills during the lying in wait period, or closely thereafter, is death-eligible, regardless of whether a cognizable interruption occurred between the lying in wait period and the death of the victim. (See id.; but see People v. Morales (1989) 48 Cal. 3d 527, 558.) For example, if between the lying in wait period and the death of the victim the defendant has a two-hour conversation with the victim, the defendant would qualify for the death penalty under Proposition 18.

C. Arson & Kidnapping

1. Existing Law

Under existing law, all murders committed in the perpetration or attempted perpetration of arson or kidnapping are first-degree murders. (Cal. Penal Code § 189.) Arson and kidnapping first-degree murders may be classified as with or without special circumstance. (See id.; see also Cal. Penal Code §§ 190.2(a)(17)(B), 190.2(a)(17)(H) [defining arson and kidnapping special circumstances].)

For an arson or a kidnapping murder to qualify as a murder with special circumstance, the murder must be committed while the defendant is engaged in the commission of arson or kidnapping. (See Cal. Penal Code §§ 190.2(a)(17)(B), 190.2(a)(17)(H).) However, in an effort to comply with the federal death penalty constitutional requirements, the California Supreme Court has interpreted the arson and kidnapping special circumstances statute more narrowly than it reads. (People v. Weidert (1985) 39 Cal. 3d 836, 842.) The Court has held that arson and kidnapping special circumstances attach only to defendants who commit the arson or kidnapping for purposes other than to kill the victim. (See id.) For instance, a defendant who commits arson or kidnapping to steal or rob, but in the process he kills, may be charged with arson special circumstance because his criminal purpose was not to kill.

Conversely, the arson and kidnapping special circumstances do not attach to defendants who commit arson or kidnapping solely with the purpose to kill the victim. (See, e.g., People v. Weidert (1985) 39 Cal. 3d 836, 842 [holding that the kidnapping special circumstance does not apply where the defendant kidnapped to solely kill the victim].) The California Supreme Court has held that the special circumstance also exists where the purpose for the arson or kidnapping was both to kill and advance a purpose other than to kill. (People v. Williams (1988) 44 Cal. 3d 883, 928-29.) Thus, a defendant whose sole purpose is to kill the victim can only be charged with arson or kidnapping first-degree murder. (See People v. Weidert (1985) 39 Cal. 3d 836, 842.)

Therefore, defendants who commit arson or kidnapping for a purpose other than to kill the victim may be punished with death or life without the possibility of parole. (See id; see also Cal. Penal Code §§ 190.2(a)(17)(B), 190.2(a)(17)(H).) In contrast, the maximum sentence for defendants who commit arson or kidnapping for the sole purpose to kill the victim is 25 years to life. (See People v. Weidert (1985) 39 Cal. 3d 836, 842; see also Cal. Penal Code § 190 [outlining the penalty for lying in wait murders with and without special circumstance].) As a result, defendants whose primary intent is not to kill the victim are being punished more severely than defendants whose main purpose is to kill the victim. (See People v. Weidert (1985) 39 Cal. 3d 836, 842.)

2. Proposition 18

California lawmakers have addressed the disparate punishment outcomes for arson and kidnapping murder defendants by enacting Proposition 18. (See Murder / Special Circumstances Initiative, SB 1878, to be codified at Penal Code § 190.2.) The Initiative expands the potential punishment for defendants, who commit arson or kidnapping primarily or solely to kill, to death or life without the possibility of parole. (See id.) By making all arson and kidnapping murders special circumstance murders, the Initiative would eliminate the distinction between defendants whose purpose is other than to kill the victim and defendants whose sole purpose is to kill. (Id.) Accordingly, a defendant who kills in the process of committing arson or kidnapping would be death-eligible, regardless of his primary purpose. (See id.) Therefore, in murder cases, for a prosecutor to prove arson or kidnapping special circumstance, the prosecutor would only have to establish the elements of arson or kidnapping. (Id.)

Statutory Interpretation

A. Lying in Wait

The lying in wait part of Proposition 18 provides that "the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment . . . for life without the possibility of parole if . . . [t]he defendant intentionally killed the victim by means of lying in wait." (Murder / Special Circumstances Initiative, SB 1878, to be codified at Penal Code § 190.2.) Therefore, to prove the lying in wait special circumstance under Proposition 18, a prosecutor would only have to show that the defendant killed the victim intentionally and that the killing was done "by means of lying in wait." (See id.)

The provision defining lying in wait first-degree murders (i.e. lying in wait murders without special circumstance) and the lying in wait provision in the Initiative both use the same "by means of lying in wait" language. (§ 189; Murder / Special Circumstances Initiative, SB 1878, to be codified at Penal Code § 190.2.) California courts should not have difficulty interpreting the "by means of lying in wait" language in Proposition 18 because the courts have already defined "by means of lying in wait" in the context of lying in wait first-degree murders (i.e. lying in wait murders without special circumstance). (See Domino v. Superior Court (1982) 129 Cal. App. 3d 1000, 1007-08.) California courts have interpreted "by means of lying in wait" to include murders that are close in temporal proximity to the period of watching and waiting to attack the victim. (Domino v. Superior Court (1982) 129 Cal. App. 3d 1000, 1007-08.) Therefore, the "by means of lying in wait" language in the Murder/Special Circumstances Initiative would be interpreted to include murders that are close in temporal proximity to the period of watching and waiting to attack the victim. (See generally Murder / Special Circumstances Initiative, SB 1878, to be codified at Penal Code § 190.2; see also Domino v. Superior Court (1982) 129 Cal. App. 3d 1000, 1007-08.)

As a result, the Initiative eliminates the difference between lying in wait murders without special circumstance (i.e. lying in wait first-degree murders) and lying in wait murders with special circumstance. However, because Proposition 18 involves capital punishment, it must encompass a narrower group of criminals than the lying in wait first-degree murder provision. (See Zant v. Stephens (1983) 462 U.S. 862, 877.) Consequently, if courts find that the lying in wait part of Proposition 18 is unconstitutionally broad, the courts could interpret the Initiative’s "by means of lying in wait" language more narrowly than the "by means of lying in wait" language in the first-degree murder provision. (See, e.g., People v. Green (1980) 27 Cal. 3d 1, 61 [interpreting the arson and kidnapping special circumstances statute narrowly in an effort to satisfy the constitutional requirements for capital punishment laws].)

B. Arson & Kidnapping

The arson and kidnapping part of Proposition 18 provides that:

[t]o prove the special circumstances of kidnapping . . . or arson . . . 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.

(Murder / Special Circumstances Initiative, SB 1878, to be codified at Penal Code § 190.2.) The Initiative’s "primarily or solely for the purpose of facilitating murder" language, which defines arson and kidnapping murders with special circumstance, is identical to the language used by the California Supreme Court to define arson and kidnapping murders without special circumstance, under existing law. (Compare People v. Weidert (1985) 39 Cal. 3d 836, 841 with Murder / Special Circumstances Initiative, SB 1878, to be codified at Penal Code § 190.2.) According to the California Supreme Court, arson or kidnapping murder, where defendant’s main purpose is to kill the victim, is arson or kidnapping murder without special circumstance. (People v. Weidert (1985) 39 Cal. 3d 836, 842.) Only arson or kidnapping murder defendants whose purpose is other than to kill may be charged with the arson or kidnapping special circumstance. (Id. at 842.) As a result, by using Court’s language that describes murders without special circumstance to define murders with special circumstance, the drafters of the Initiative have clearly manifested that they are overruling Court’s definition of arson and kidnapping murders without special circumstance. Therefore, California courts would not have difficulties interpreting the new arson and kidnapping special circumstances, as defined by Proposition 18.

Constitutional Analysis

A. Capital Punishment and the Supreme Court

Under the Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 15, 17, and 27 of the California Constitution, California cannot impose the death penalty in a "capricious and arbitrary manner." (Furman v. Georgia (1972) 408 U.S. 238, 274, 277; U.S. Const. amend. VIII, § 1; U.S. Const. amend. XIV, § 1; Cal. Const. art. I, § 15, cl. 2; Cal. Const. art. I, § 17; Cal. Const. art. I, § 27, cl. 2.) To avoid the "capricious and arbitrary" language, states that use aggravating circumstances to impose the death penalty "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of the same crime." (Zant v. Stephens (1983) 462 U.S. 862, 877.) First, the aggravating circumstance must genuinely narrow the class of death-eligible defendants. (Id. at 877.) Second, the aggravating circumstance must include only those defendants who are more deserving of the death penalty than other defendants found guilty of the same crime. (Id. at 877.) Common factors used to distinguish between death-eligible and non-death-eligible murder defendants are whether the murder was committed in the course of a serious felony, multiple victims, and the status of the victim (e.g., judge, juror, etc.). (See Cal. Penal Code § 190.2 (a); see also Gregg v. Georgia (1976) 428 U.S. 153, 222.)

B. Application

1. Lying in Wait

First, the aggravating circumstance, as defined by Proposition 18, must genuinely narrow the class of death-eligible murder defendants. (Zant v. Stephens (1983) 462 U.S. 862, 877.) The first issue then is whether, within the context of all murders, lying in wait murder defendants are a genuinely narrow class of death-eligible murder defendants? (Zant v. Stephens (1983) 462 U.S. 862, 877.) Lying in wait murder defendants are a narrow class of criminals because the class includes only criminals that have committed murders by means of lying in wait. The defendants are identified by the manner in which they have committed murder, by means of lying in wait. Thus, although the Initiative makes all lying in wait murders special circumstance murders, within the context of all murder defendants, lying in wait murder defendants are a narrow class of death-eligible murder defendants.

Second, the aggravating circumstance must include only those defendants who are more deserving of the death penalty than other defendants found guilty of the same crime. (Zant v. Stephens (1983) 462 U.S. 862, 879.) The second issue then is whether, within the context of all murders, lying in wait murders include only those defendants who are more deserving of the death penalty than other murder defendants? (Zant v. Stephens (1983) 462 U.S. 862, 877.) In distinguishing between lying in wait and other types of murders, the California Supreme Court has held that murders committed by means of lying in wait are "particularly heinous and repugnant crime[s]." (People v. Edelbacher (1989) 47 Cal. 3d 983, 1023 [quoting Note, Murder Committed by Lying in Wait (1954) 42 Cal. L. Rev. 337].) Hence, criminals who commit murders by means of lying in wait are a class of murder defendants that are more deserving of the death penalty than other murder defendants. Therefore, the lying in wait part of Proposition 18 should not encounter any constitutional problems.

2. Arson & Kidnapping

First, the aggravating circumstance must genuinely narrow the class of death-eligible defendants. (Zant v. Stephens (1983) 462 U.S. 862, 877.) The first issue then is whether, within the context of all murders, arson and kidnapping murder defendants are a genuinely narrow class of death-eligible murder defendants? (Zant v. Stephens (1983) 462 U.S. 862, 877.) Arson and kidnapping murderers are a narrow class of death-eligible defendants for two reasons. One, arson and kidnapping murders include only murders perpetrated in the course of a felony. Two, arson and kidnapping murders are murders perpetrated in the course of only two felonies, arson and kidnapping. Hence, arson and kidnapping murder defendants are narrowed out as a death-eligible class of defendants by virtue of their participation in the arson or kidnapping at the time of the murder.

Second, the aggravating circumstance must include only those defendants who are more deserving of the death penalty than other defendants found guilty of the same crime. (Zant v. Stephens (1983) 462 U.S. 862, 879.) The second issue then is whether, within the context of all murders, arson and kidnapping murderers include only those defendants who are more deserving of the death penalty than other murder defendants? Proposition 18 makes all arson and kidnapping murder defendants death-eligible, regardless of whether they have committed the murder with intent to kill. However, arson and kidnapping murder defendants are not necessarily more culpable than other murder defendants. For instance, a defendant who accidentally (without intent to kill) kills in the perpetration of arson is not necessarily more culpable than a defendant who murders with intent to kill. Also, a defendant who kills after moving the victim a short distance is not necessarily more culpable than a defendant who kills without moving the victim. (See People v. Martinez (1999) 20 Cal. 4th 225, 237 [decreasing the distance requirement for kidnapping].) Nevertheless, according to the Initiative and unlike their counterparts, both the arsonist and the kidnapper in the above examples would be death-eligible. Thus, Proposition 18 would not necessarily impose capital punishment only on those defendants who are more deserving of the death penalty than other murder defendants, making Proposition 18 vulnerable to constitutional attacks.

Policy Questions

According to the legislative sponsor of Proposition 18, capital punishment should be reserved only for the "most serious and culpable murders." (Murder / Special Circumstances Initiative, SB 1878, Senate Rules Committee Analysis, p. 5 (1998).) Lying in wait murders are particularly heinous because, prior to the killing, the murderer ambushes the victim. Arson murders are atrocious because of the fire involved in the killing of the victim. Kidnapping murders, however, are not all necessarily in the group of the most serious and culpable murders. Even though some kidnappings may aggravate the murder and make it as heinous as lying in wait and arson murders, many kidnappings consist of a mere movement of the victim over a short distance. (See SB 1878, Senate Rules Committee Analysis, at p. 6.) Such kidnapping murders are no more serious and culpable than if the murder was committed without the kidnapping. Consequently, Proposition 18 does not necessarily impose the death penalty on the most serious and culpable murderers.

The legislative sponsor of the Initiative also argues that Initiative’s changes are "modest" and do not "dramatically expand California’s death penalty law." (SB 1878, Senate Rules Committee Analysis, at p. 5.) As discussed in Chapters 3 and 4, however, the Initiative would expand capital punishment to all murders committed by means of lying in wait and during the perpetration or attempted perpetration of arson and kidnapping.

According to the Initiative, the only distinction between lying in wait first-degree and special circumstance murders would be the intent to kill requirement for lying in wait special circumstance murders. (Murder / Special Circumstances Initiative, SB 1878, to be codified at Penal Code § 190.2.) However, intent to kill is present in all lying in wait murders. Thus, although theoretically the Initiative would distinguish between lying in wait with and without special circumstance murders, in reality the death penalty would apply to all lying in wait murder defendants.

Proposition 18 would also expand the death penalty to arson and kidnapping murders, committed with intent to kill. As a result, because arson and kidnapping murder defendants with a purpose other than to kill are already death-eligible under existing case law, the Initiative would, in effect, make all arson and kidnapping murderers, eligible for the death penalty. Therefore, the Initiative’s capital punishment expansion is more extensive than it may appear on its face.

Conclusion

In March 2000, California voters will have the opportunity to expand capital punishment by voting for Proposition 18. The Initiative expands the death penalty in two areas: murders committed by means of lying in wait; and murders committed in the perpetration or attempted perpetration of arson and kidnapping.

A. Lying in Wait

The Initiative would make all intentional murders committed by means of lying in wait, special circumstance murders. Hence, only unintentional murders committed by means of lying in wait would be without special circumstance. California courts would not have a difficulty interpreting the lying in wait part of the Initiative because the same language has already been interpreted by California courts in the context of lying in wait murders without special circumstance. In the context of all murders, the lying in wait provision is constitutional because it genuinely narrows a class of death-eligible defendants and includes only those defendants who are more deserving of the death penalty than other murder defendants.

B. Arson & Kidnapping

The Initiative would also make all arson and kidnapping murders special circumstance murders, regardless of whether the defendant had intent to kill the victim. California courts would not have a difficulty interpreting the arson and kidnapping provision of the Initiative because the language unambiguously overrules the California Supreme Court’s definition of arson and kidnapping murders without special circumstance. Within the context of all murders, the arson and kidnapping part of the Initiative does narrow out a class of death-eligible defendants. However, because some kidnapping murder defendants are less culpable than defendants who have killed absent a kidnapping, the arson and kidnapping provision does not necessarily include only defendants who are more deserving of the death penalty than other murder defendants. Therefore, the arson and kidnapping part of the Initiative may be held unconstitutionally broad, in violation of the capricious and arbitrary language found in Furman v. Georgia. Unlike what the legislative author of the Initiative claims, the arson and kidnapping provision of the Initiative would not apply only to "the most serious and culpable murders" because some kidnapping murders are no more serious and culpable than if they had occurred without the kidnapping. Also, the arson and kidnapping part of the Initiative would expand capital punishment because all arson and kidnapping murder defendants would be death-eligible.