BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair S
2001-2002 Regular Session B
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SB 564 (Speier)
As Amended April 16, 2001
Hearing date: April 24, 2001
Penal Code
AA:mc
DOMESTIC VIOLENCE PENALTIES :
PREGNANT VICTIMS
HISTORY
Source: Junior Leagues of California
Prior Legislation: AB 1764 (Cunneen) - 1995-96 session - held in
Senate
Support: Committee on Moral Concerns; Crime Victims United of
California; California Peace Officers' Association;
California Police Chiefs Association; Campaign for
California Families; Junior League of San Jose, Inc.
Opposition:California Public Defenders Association; ACLU
KEY ISSUES
SHOULD CURRENT DATING RELATIONSHIPS, AS DEFINED, BE INCLUDED IN THE
FELONY DOMESTIC VIOLENCE STATUTE WHERE THE PERSON KNOWS OR
REASONABLY SHOULD KNOW THE OTHER PERSON IS PREGNANT?
SHOULD THE PENALTY FOR FELONY DOMESTIC VIOLENCE BE INCREASED WHERE
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THE VICTIM IS PREGNANT, AS SPECIFIED?
SHOULD THE INCREASED SENTENCE FOR REPEAT FELONY DOMESTIC VIOLENCE BE
EXPANDED TO INCLUDE ADDITIONAL CRIMES, AS SPECIFIED?
PURPOSE
The purpose of this bill is to 1) include dating relationships
in the felony domestic violence statute where the offender knows
or reasonably should have known the other person was pregnant;
2) provide for increased felony domestic violence penalties
where the victim is pregnant, as specified; and 3) expand the
prior offenses triggering the penalties for a repeat felony
domestic violence offense, as specified.
Scope of Felony Domestic Violence Statute: Persons Included
Under current law , any "person who willfully inflicts upon a
person who is his or her spouse, former spouse, cohabitant,
former cohabitant, or the mother or father of his or her child,
corporal injury resulting in a traumatic condition<1>, is guilty
of a felony, as specified. (Penal Code 273.5.)
This bill would expand this provision to include within its
scope acts against "a person with whom they are currently in a
dating relationship and the person knows or reasonably should
know is pregnant."
This bill would define dating relationships as, "frequent,
intimate associations primarily characterized by the expectation
of affectional or sexual involvement independent of financial
considerations."
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<1> "Traumatic condition" means a condition of the body, such as
a wound or external or internal injury, whether of a minor or
serious nature, caused by a physical force. (Penal Code
273.5(c).)
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Punishment for Felony Domestic Violence
Under current law , the punishment for felony domestic violence
is imprisonment in the state prison for two, three, or four
years, or in a county jail for not more than one year, or by a
fine of up to . . . ($6,000) or by both that fine and
imprisonment." (Penal Code 273.5.)
Under current law , any "person who, during the commission or
attempted commission of a felony, knows or reasonably should
know that the victim is pregnant, and who, with intent to
inflict injury, and without the consent of the woman, personally
inflicts injury upon a pregnant woman that results in the
termination of the pregnancy shall, in addition and consecutive
to the punishment prescribed by the felony or attempted felony
of which the person has been convicted, be punished by an
additional term of five years in the state prison. The
additional term provided in this subdivision shall not be
imposed unless the fact of that injury is charged in the
accusatory pleading and admitted or found to be true by the
trier of fact." (Penal Code 12022.9.)
Current law generally provides that circumstances in aggravation
may justify imposition of the upper of three possible prison
terms. (Penal Code 170(b).) Particular vulnerability of a
victim is a circumstance in aggravation. (Rules of Court, Rule
421.)
This bill would increase the penalty for felony domestic
violence where the offense is committed against a victim the
offender knows or reasonably should know is pregnant, to a fine
not exceeding $8,000, imprisonment in the state prison for two,
four, or five years, or in a county jail for not more than one
year, or by both that fine and imprisonment. This bill would
expressly provide that the felony domestic violence statute
"shall not preclude" the sentence enhancement cited above.
Current law imposes an increased sentence (jail or prison,
2/4/5) for persons convicted of violating the domestic violence
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felony statute within seven years of a previous conviction under
specified provisions including, with respect to the battery
statute, battery where serious bodily injury is inflicted.
(Penal Code 273.5(e).)
This bill would expand this provision to count as priors the
proposed new provision concerning pregnant victims, and
misdemeanor domestic battery.<2>
Current law imposes specified probation conditions for persons
convicted of felony domestic violence. (Penal Code 273.5(f).)
Current law also imposes specified probation conditions for
persons with prior convictions, as specified. (Penal Code
273.5(g).)
This bill would include within these subdivisions a
cross-reference to the provision the bill proposes concerning
pregnant victims.
COMMENTS
1. Stated Need for This Bill
The author states in part:
This legislation is intended to increase
protection for the most vulnerable victims of
domestic abuse - pregnant women. Conservative
estimates indicate that up to eight percent of
pregnant women are abused - possibly as many as
330,000 women nationwide each year. Pregnant
women are more vulnerable physically, emotionally
and economically, and they are more likely to stay
in an abusive relationship because of their
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<2> Misdemeanor domestic battery as set forth in paragraph (1)
of subdivision (e) of section 243. This bill also sets forth
provisions in this regard that appear to be technical errors;
see Comment 7.
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pregnancy.
Abuse during pregnancy not only harms the woman,
it is highly dangerous for her fetus as well.
Studies have shown that pregnant women who are
abused are twice as likely to deliver low
birthweight babies and are more likely to delay
seeking proper prenatal care. Low birthweight
babies are more likely than normal weight babies
to have medical and developmental complications.
2. What This Bill Would Do
As set forth above, California law generally punishes domestic
violence in two statutes: the battery statute, which imposes a
misdemeanor penalty, and the felony domestic violence statute,
which imposes a fine, jail or prison time, or both a fine and
imprisonment. This bill would amend the felony domestic
violence statute to do essentially three things:
Expand felony domestic violence to include current dating
relationships, as defined, where the person knows or
reasonably should know the victim is pregnant;
Impose a higher prison term for felony domestic violence where
the victim is pregnant, or reasonably should have been known
to be pregnant, from a 2/3/4 year wobbler to a 2/4/5 year
wobbler; and
Expand the list of prior offenses triggering a repeat domestic
violence sentence to include misdemeanor domestic battery.
3. Expanded Scope to Include Dating Relationships Where Victim is
Pregnant
Currently, the felony domestic violence statute applies to the
following relationships:
spouse;
former spouse;
cohabitant;
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former cohabitant; and
the mother or father of the offender's child.
This bill would expand felony domestic violence to include
current dating relationships where the offender knows or
reasonably should know the victim is pregnant. Dating
relationships would have the same definition as that employed in
existing California law.<3>
SHOULD CURRENT DATING RELATIONSHIPS, WHERE THE OFFENDER KNOWS OR
REASONABLY SHOULD KNOW THE VICTIM IS PREGNANT, BE INCLUDED IN
THE FELONY DOMESTIC VIOLENCE STATUTE?
4. Increased Sentence for Pregnant Victims
As set forth in more detail above, the penalty for felony
domestic violence - where corporal injury results in a traumatic
condition - is an alternate misdemeanor/felony, with the felony
carrying a prison term of two, three or four years. Felony
domestic violence applies where the victim is the offender's
spouse, former spouse, cohabitant, former cohabitant, or the
mother or father of his or her child.
Courts generally are required to impose the middle term of a
felony sentence unless there are circumstances in aggravation or
mitigation of the crime. (Penal Code 1170(b).) The
particular vulnerability of a victim is an aggravating
circumstance. (Rules of Court, Rule 421.)
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<3> Penal Code 243 (e)(10)(domestic battery).
Under current law a felony domestic violence prison term
generally would be three years, unless the victim is found to be
"particularly vulnerable," an aggravating factor, in which case
the term would be four years. In addition, if the crime results
in the termination of the pregnancy, an additional five years
would be added and made consecutive to the base term imposed by
the court. (Penal Code 12022.9.) A person convicted of
felony domestic violence against a pregnant victim thus may
receive a four-year sentence under current law, enhanced by
another five years in state prison if the crime results in the
termination of the pregnancy.
This bill would increase the penalty for felony domestic
violence against a victim the offender knew or reasonably should
have known to be pregnant, as follows:
Increases the fine from $6,000 to $8,000; and
Increases the prison term from a 2/3/4 year triad to a 2/4/5
year triad.
DOES CURRENT LAW PROVIDE COURTS IN DOMESTIC VIOLENCE CASES WITH
ADEQUATE SENTENCING TOOLS TO FACTOR IN UNIQUE VICTIM
CIRCUMSTANCES, SUCH AS PREGNANCY?
SHOULD A VICTIM'S PREGNANT STATUS BE THE BASIS FOR AN INCREASED
PRISON TERM IN FELONY DOMESTIC VIOLENCE CASES?
ARE PREGNANT VICTIMS IN FELONY DOMESTIC VIOLENCE CRIMES
APPRECIABLY DISTINGUISHABLE FROM OTHER VICTIMS WHO ARE
PARTICULARLY VULNERABLE?
WOULD THIS BILL ENHANCE PUBLIC SAFETY BY REDUCING THE INCIDENCE
OF FELONY DOMESTIC VIOLENCE?
5. Expansion of Priors Triggering Greater Sentence for Repeat
Offenses
Current law generally imposes an increased sentence for repeat
domestic violence offenses. Qualifying priors under current law
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are:
Felony domestic violence;
Battery where serious bodily injury is inflicted;
Sexual battery;
Assault with caustic chemicals;
Assault with a stun gun; and
Assault with a deadly weapon or force likely to produce great
bodily injury.
This bill would expand this provision by adding the following
additional qualifying priors:
Misdemeanor domestic battery; and
Domestic battery against a pregnant person, as proposed by
this bill.
SHOULD MISDEMEANOR DOMESTIC BATTERY, WHERE NO PHYSICAL INJURY IS
REQUIRED, QUALIFY AS A PRIOR REPEAT OFFENSE?
6. Technical Drafting Concern
As currently drafted, this bill has two proposed components
regarding pregnant victims of domestic violence: it adds dating
relationships where there is a pregnant victim to subdivision
(a) of the felony domestic violence statute. This subdivision
establishes the requisite relationships to trigger the statute,
and also includes the basic penalty provisions for this crime.
The bill additionally creates a new subdivision (b) that would
impose a discrete, higher penalty for felony domestic violence
where the victim is known to be pregnant.
As currently drafted, it is somewhat vague to include the new
class of relationship in a subdivision containing a punishment
not intended to apply to that new class. The author and/or the
Committee may wish to consider revising this language to more
clearly set forth these provisions.
For example, if the author and Committee agree that both
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components should be adopted - adding both the new class of
victim and the increased sentence for this new class - they may
wish to consider deleting the bill's amendment to subdivision
(a) and instead providing for a separate subdivision (b) which
includes both this new class of victim and the increased
sentence.
In the alternative, if the author and Committee agree that the
new class should be added to this offense without an increased
penalty, subdivision (b) should be deleted, and subdivision (a)
should be retained as currently proposed.
SHOULD THIS PROVISION BE CLARIFIED?
7. Technical Drafting Error
As currently drafted, this bill appears to include a duplicative
provision concerning the punishment for repeat domestic violence
offense. (See page 7, lines 26 - 33, and page 8, lines 19 -
26.) It would appear the author would intend to delete the
provisions at page 8, lines 19 - 26, to correct this error.
SHOULD THIS AMENDMENT BE MADE?
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