Today's Law As Amended


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SB-310 Murder: punishment.(1993-1994)



As Amends the Law Today


SECTION 1.

 Section 189 of the Penal Code is amended to read:

189.
 (a)  All murder that which  is perpetrated by means of a destructive device or explosive, a weapon of mass destruction,  knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that which  is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking,  robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206,  286, 287,  288, 288a,  or 289, or former Section 288a, or murder that any murder which  is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree. 
(b) All other kinds of murders are of the second degree.
(c) As used in this section, the following definitions apply:
(1) “Destructive device” has the same meaning as in Section 16460.
(2) As  “Explosive” has the same meaning as in Section   used in this section, “destructive device” means any destructive device as defined in Section 12301, and “explosive” means any explosive as defined in Section  12000 of the Health and Safety Code.
(3) “Weapon of mass destruction” means any item defined in Section 11417.
(d)  To prove the killing was “deliberate and premeditated,” it is shall  not be  necessary to prove the defendant maturely and meaningfully reflected upon the gravity of the defendant’s  his or her  act.
(e) A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven:
(1) The person was the actual killer.
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.
(f) Subdivision (e) does not apply to a defendant when the victim is a peace officer who was killed while in the course of the peace officer’s duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer’s duties.

SEC. 2.

 Section 189 of the Penal Code is amended to read:

189.
 (a)  All murder that which  is perpetrated by means of a destructive device or explosive, a weapon of mass destruction,  knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that which  is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206,  286, 287,  288, 288a,  or 289, or former Section 288a, or murder that any murder which  is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree. 
(b) All other kinds of murders are of the second degree.
(c) As used in this section, the following definitions apply:
(1) “Destructive device” has the same meaning as in Section 16460.
(2) As  “Explosive” has the same meaning as in Section   used in this section, “destructive device” means any destructive device as defined in Section 12301, and “explosive” means any explosive as defined in Section  12000 of the Health and Safety Code.
(3) “Weapon of mass destruction” means any item defined in Section 11417.
(d)  To prove the killing was “deliberate and premeditated,” it is shall  not be  necessary to prove the defendant maturely and meaningfully reflected upon the gravity of the defendant’s  his or her  act.
(e) A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven:
(1) The person was the actual killer.
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.
(f) Subdivision (e) does not apply to a defendant when the victim is a peace officer who was killed while in the course of the peace officer’s duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer’s duties.

SEC. 3.

 Section 190 of the Penal Code is amended to read:

190.
 (a)   Every person guilty of murder in the first degree shall be punished by death, imprisonment suffer death, confinement  in the state prison for life without the possibility of parole, or imprisonment confinement  in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.  
 Except as provided in subdivision (b), (c),  (b)  or (d), (c),  every person guilty of murder in the second degree shall be punished by imprisonment  suffer confinement  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  (b), Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term of 15, 20, or 25 years  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. imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time. 
(c) (b)   Every person guilty of murder in the second degree shall be punished by imprisonment  suffer confinement  in the state prison for a term of life without the possibility of parole  25 years to life  if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b),  (a)  or (c) (b)  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 such  a peace officer engaged in the performance of his or her duties, and any of the following facts has been charged and found true: duties.  
(1) Article  The defendant specifically intended to kill the peace officer.  2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce any minimum term of 25 years in the state prison when the person is guilty of murder in the second degree and the victim was a peace officer, as defined in this subdivision, and the person shall not be released prior to serving 25 years confinement. 
(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) of Section 12022.
(4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5.
(d) (c)   Every person guilty of murder in the second degree shall be punished by imprisonment  suffer confinement  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  20 years in the state prison when the person is guilty of murder in the second degree and is subject to this subdivision, but the person shall not otherwise  be released on parole prior to serving the minimum term of confinement prescribed by this section. that time. 

SEC. 4.

 Section 12022.5 of the Penal Code is amended to read:

12022.5.
 (a)   Except as provided in subdivision (b),  subdivisions (b) and (c),  any person who personally uses a firearm in the commission or attempted commission  of a felony or attempted felony shall  shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted,  be punished by an additional and consecutive  term of imprisonment in the state prison for 3, 4, three, four,  or 10 five  years, unless use of a firearm is an element of that offense. the offense of which he or she was convicted. The court shall order imposition of the middle term unless there are circumstances in aggravation or mitigation. The court shall state its reasons for its enhancement choice on the record at the time of sentencing.  
(b)  (1)  Notwithstanding subdivision (a), any person who is convicted of a felony or an attempt to commit a felony, including murder or attempted murder, in which that person discharged a firearm at an occupied motor vehicle which caused great bodily injury or death to the person of another, shall, upon conviction of that felony or attempted felony, in addition and consecutive to the sentence prescribed for the felony or attempted felony, be punished by an additional term of imprisonment in the state prison for five years.
(b) (2)   Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section 30510 12276,  or 30515, or  a machinegun, as defined in Section 16880, 12200,  in the commission of a  or attempted commission of a felony, shall, upon conviction of that  felony or attempted felony, shall  in addition and consecutive to the sentence prescribed for the felony or attempted felony,  be punished by an additional and consecutive  term of imprisonment in the state prison for 5, 6, or 10 years. five years.  
(c)   The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law. Notwithstanding the enhancement set forth in subdivision (a), any person who personally uses a firearm in the commission or attempted commission of a violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code, shall, upon conviction of that offense and in addition and consecutive to the punishment prescribed for the offense of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for three, four, or five years in the court’s discretion. The court shall order the imposition of middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record.  
(d) Notwithstanding   the limitation in subdivision (a) relating to being an element of the offense, the  The  additional term provided by this section shall may  be imposed for any violation of Section 245 if a firearm is used, or for  in cases of assault with a firearm under paragraph (2) of subdivision (a) of Section 245, or assault with a deadly weapon which is a firearm under Section 245, or  murder if the killing is 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 or death.  
(e)   When a person is found to have personally used a firearm, an assault weapon, a machinegun,  or a .50 BMG rifle,  machinegun  in the commission or attempted commission  of a felony or attempted felony  as provided in this section and the firearm, assault weapon, machinegun, or a .50 BMG rifle,  or machinegun  is owned by that person, the court shall order that the firearm be deemed a nuisance and disposed of in the manner provided in Sections 18000 and 18005. Section 12028.  
(f)   For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one one,  single enhancement.  

SEC. 5.

 Section 12022.5 of the Penal Code is amended to read:

12022.5.
 (a)   Except as provided in subdivision (b),  subdivisions (b) and (c),  any person who personally uses a firearm in the commission or attempted commission  of a felony or attempted felony shall  shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted,  be punished by an additional and consecutive  term of imprisonment in the state prison for 3, 4, three, four,  or 10 five  years, unless use of a firearm is an element of that offense. the offense of which he or she was convicted. However, if the person has been convicted of carjacking or attempted carjacking, the additional term shall be four, five, or six years. The court shall order imposition of the middle term unless there are circumstances in aggravation or mitigation. The court shall state its reasons for its enhancement choice on the record at the time of sentencing.  
(b)  (1)  Notwithstanding subdivision (a), any person who is convicted of a felony or an attempt to commit a felony, including murder or attempted murder, in which that person discharged a firearm at an occupied motor vehicle which caused great bodily injury or death to the person of another, shall, upon conviction of that felony or attempted felony, in addition and consecutive to the sentence prescribed for the felony or attempted felony, be punished by an additional term of imprisonment in the state prison for five years.
(b) (2)   Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section 30510 12276,  or 30515, or  a machinegun, as defined in Section 16880, 12200,  in the commission of a  or attempted commission of a felony, shall, upon conviction of that  felony or attempted felony, shall  in addition and consecutive to the sentence prescribed for the felony or attempted felony,  be punished by an additional and consecutive  term of imprisonment in the state prison for 5, 6, or 10 years. five years.  
(c)   The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law. Notwithstanding the enhancement set forth in subdivision (a), any person who personally uses a firearm in the commission or attempted commission of a violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code, shall, upon conviction of that offense and in addition and consecutive to the punishment prescribed for the offense of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for three, four, or five years in the court’s discretion. The court shall order the imposition of middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record.  
(d) Notwithstanding   the limitation in subdivision (a) relating to being an element of the offense, the  The  additional term provided by this section shall may  be imposed for any violation of Section 245 if a firearm is used, or for  in cases of assault with a firearm under paragraph (2) of subdivision (a) of Section 245, or assault with a deadly weapon which is a firearm under Section 245, or  murder if the killing is 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 or death.  
(e)   When a person is found to have personally used a firearm, an assault weapon, a machinegun,  or a .50 BMG rifle,  machinegun  in the commission or attempted commission  of a felony or attempted felony  as provided in this section and the firearm, assault weapon, machinegun, or a .50 BMG rifle,  or machinegun  is owned by that person, the court shall order that the firearm be deemed a nuisance and disposed of in the manner provided in Sections 18000 and 18005. Section 12028.  
(f)   For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one one,  single enhancement.  
SEC. 6.
 Section 2 of 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. 7.
 Section 2 of this bill incorporates amendments to Section 189 of the Penal Code proposed by this bill and SB 60. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 1994, (2) each bill amends Section 189 of the Penal Code, and (3) this bill is enacted after SB 60, in which case Section 189 of the Penal Code, as amended by SB 60, shall remain operative only until the operative date of this bill, at which time Section 2 of this bill shall become operative, and Section 1 of this bill shall not become operative.
SEC. 8.
 Section 5 of this bill incorporates amendments to Section 12022.5 of the Penal Code proposed by this bill and SB 60. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 1994, (2) each bill amends Section 189 of the Penal Code, and (3) this bill is enacted after SB 60, in which case Section 12022.5 of the Penal Code, as amended by SB 60, shall remain operative only until the operative date of this bill, at which time Section 5 of this bill shall become operative, and Section 4 of this bill shall not become operative.