By Elizabeth A. Lew
Copyright © 2000 by University of the McGeorge School of Law
JD, McGeorge School of Law, University of the Pacific
to be conferred 2001
Table of Contents
Within the California Penal Code there are several rights and privileges granted to specified peace officers. Some of these rights and privileges are enumerated under Penal Code Sections 148.1, 148.5, 148.9, 150, 190, 12027, and 12031. Sections 830.1, 830.2 and 830.33 give a list of the peace officers to whom the above-named rights and privileges are extended. Currently, the enhanced penalties created for the second-degree murder of a peace officer do not apply if the victim was a Bay Area Rapid Transit ("BART") or a California State University ("CSU") police officer. Proposition 19 will amend Penal Code Section 190 for the enhanced penalties to apply to BART and CSU police officers. As a result, a second-degree murder of a BART or CSU police officer would qualify for enhanced punishment.
A. Current Law
The California Penal Code currently limits "peace officer" status to certain law enforcement personnel. Examples of individuals who are designated peace officers includes: sheriffs, city police, district police, marshals, port police, investigators and inspectors employed by the office of a district attorney, California Highway Patrol officers, University of California Police officers, California State University Police officers, and San Francisco Bay Area Rapid Transit District police officers. (Cal. Penal Code §§ 830.1-830.55 (West 1999.) Those obtaining peace officer status not only receive added protections but sustain certain privileges not available to the general public. These "special" rights and privileges are currently given by the California Penal Code and will be further discussed below.
Penal Code Section 190 was originally enacted in 1987 "to establish degrees of murder, including first degree murder punishable by death." (See Cal. Penal Code § 190 (1998).) Section 190 states that "[e]very person guilty of murder in the first degree shall suffer death, confinement in state prison for life without the possibility of parole, or confinement in the state prison for a term of 25 years to life." (Cal. Penal Code § 190(a).) Section 190 further outlines the punishment for second degree murder. (Id.) This analysis will address the increased criminal penalties for second degree murder created by Proposition 222 and Senate Bill 1690 ("SB 1690") in 1998.
1. Proposition 222
In 1998, Proposition 222, Murder. Peace Officer Victim. Sentence Credits., was passed by voters to amend Section 190 of the California Penal Code. It amended Section 190 by enhancing the penalty for those convicted of murdering peace officers.
First, the penalty for those found guilty of second degree murder of a peace officer was increased, making the maximum punishment 25 years to life. For the enhancement to apply, the defendant must murder a peace officer "engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was such a peace officer engaged in the performance of his or her duties." (Cal. Penal Code § 190(b).)
Second, Proposition 222 increased the penalty for defendants found guilty of second-degree murder of a peace officer when the murder involved certain special circumstances. If the defendant (1) "specifically intended to kill the peace officer," (2) "specifically intended to inflict great bodily injury…on a peace officer," (3) "personally used a dangerous or deadly weapon in the commission of the offense," or (4) "personally used a firearm in the commission of the offense," the defendant would be subject to the increased sentence of life without the possibility of parole. (Cal. Penal Code § 190(c).)
Although Proposition 222 increased punishment for those convicted of murdering a peace officer, it did not expand the definition of "peace officer" to include additional categories of police officers. The enhanced penalties under Proposition 222 apply to University of California ("UC") police officers. However, although CSU and BART police officers are "peace officers" within the meaning of the Penal Code, the enhanced penalty provisions under Proposition 222 do not apply to them. (See Cal. Penal Code § 190.)
2. Senate Bill 1690
Although BART and CSU police officers already had "peace officer" status, there was no punishment enhancement for BART or CSU police officer murders prior to SB 1690. Passed by the Legislature and approved by the Governor in 1998, SB 1690 amended certain sections of the California Penal Code relating to peace officers, including Section 190. The amendment to Section 190 provided for punishment enhancement for murders of BART and CSU police officers. All amendments made by SB 1690, except the amendment to Section 190, became part of the Penal Code. The amendment to Section 190 did not become part of the Penal Code in 1998 because it amends a law that was enacted by ballot initiative. Therefore, the amendment to Section 190 must be approved by California voters. California voters can approve the enhancements by voting for Proposition 19. (Peace Officers Initiative, SB 1690, stats 1998 c. 760, to be codified at Cal. Penal Code § 190, subject to approval by California voters in March 2000.)
B. Proposed Changes
If passed by voters in March, Proposition 19 will amend California Penal Code Section 190. Proposition 19’s major purpose is to extend to BART and CSU police officers the penalty enhancement that currently applies to second-degree murders of other peace officers. By adding subdivision (c) of Section 830.2 and subdivision (a) of Section 830.33, Proposition 19 will complete what SB 1630 started nearly two years ago. Provisions designed to protect the safety of all peace officers, prior to SB 1630, applied to everyone except BART and CSU police. SB 1630 put BART and CSU police on equal terms with other peace officers.
Those opposing Proposition 19 seem to misunderstand what it covers, possibly confusing SB 1630 with Proposition 19. The opponents list five items they claim Proposition 19 does, which SB 1630 already did. (See Murder. BART and CSU Peace Officers Initiative, California Voter Pamphlet, p. 38 (2000).) The provisions the opponents enumerate are false reports, posses, and concealing weapons. However, these provisions have already become law and all that is left for voters to decide is whether they should approve the amendments to Penal Code Section 190, making the murder of CSU and BART police officers subject to the same penalty enhancements as murders of other peace officers. (Voter Pamphlet, at 39.)
Proposition 19 is very simple and straightforward. The controversial or substantive parts of the law (i.e., enhancing punishment for the second degree murder of a peace officer) passed voter approval in 1998. Proposition 19 simply extends the penalty enhancement to BART and CSU peace officers, something that has already been done for the other peace officers.
Proposition 19 will add BART and CSU police officers to the group of specified officers to whom the rights and privileges listed under California Penal Code Section 190 apply. Proposition 19 will not create new privileges for peace officers but merely will ensure that BART and CSU police officers share the same protections that other peace officers already possess.
This may mean that defendants convicted of murder of BART or CSU police officers who would normally not be affected by the punishment enhancements, could potentially spend more time in jail. However, this extension of sentences may be outweighed by the fact that CSU and BART police officers undergo essentially the same training as other peace officers, including city police. Furthermore, CSU police officers have a much larger jurisdiction area crossing the entire state of California and BART police officers have a jurisdiction of three counties and are required to respond to mutual aid calls put out by other peace officers within those three counties. BART police officers often work together with other law enforcement agencies and often do essentially the same type of work as city and county police officers.
Encountering similar safety concerns and dealing with similarly dangerous individuals, BART and CSU police officers face risks comparable to any peace officer. As a result, they should have the same privileges and protections afforded all other peace officers.