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