BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 1280|
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                                 THIRD READING


          Bill No:  AB 1280
          Author:   Villines (R), et al
          Amended:  7/15/10 in Senate
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE :  7-0, 6/29/10
          AYES:  Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,  
            Wright
           
          SENATE APPROPRIATIONS COMMITTEE  :  11-0, 8/12/10
          AYES:  Kehoe, Ashburn, Alquist, Corbett, Emmerson, Leno,  
            Price, Walters, Wolk, Wyland, Yee
           
          ASSEMBLY FLOOR  :  Not relevant


           SUBJECT  :    Child abuse sentencing: child becoming comatose  
          or suffering

           SOURCE  :     Author


           DIGEST  :    This bill provides that where a person with care  
          and custody of a child assaults the child through force  
          likely to produce great bodily injury and the child becomes  
          comatose due to brain injury or suffers permanent  
          paralysis, as defined, the person shall be punished by a  
          prison term of life with the possibility of parole.  This  
          bill is contingent on the passage of AB 1844 (Fletcher).

           ANALYSIS  :    Existing law states that any person having  
          care and custody of a child under the age of eight, who  
                                                           CONTINUED





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          assaults the child by means of force that to a reasonable  
          person would be likely to produce great bodily injury,  
          resulting in the child's death, is guilty of a felony  
          punishable by 25-years-to-life in the state prison.   
          (Section 273ab of the Penal Code [PEN])

          Existing law provides that any person who under  
          circumstances likely to cause great bodily harm or death  
          willfully causes any child to suffer or inflicts  
          unjustifiable pain or mental suffering on a child, causes  
          the health of a child to be injured, or causes a child to  
          be placed in a situation where his or her health may be  
          endangered shall be imprisoned in a county jail not  
          exceeding one year or in the state prison for two, four or  
          six years.  (PEN Section 273a, subd. (a))

          Existing law articulates that any person who under  
          circumstances other than those likely to cause great bodily  
          harm or death willfully causes any child to suffer or  
          inflicts unjustifiable pain or mental suffering on a child,  
          causes the health of a child to be injured, or causes a  
          child to be placed in a situation where his/her health may  
          be endangered is a misdemeanor, punishable by up to six  
          months in the county jail.  (PEN Section 273a, subd. (b))

          Existing law declares any person who willfully inflicts  
          upon any child any cruel or inhuman corporal punishment or  
          injury resulting in a traumatic condition shall be punished  
          by imprisonment in the state prison for two, four, or six  
          years, or in the county jail not exceeding one year; by a  
          fine up to $6,000; or by both that imprisonment and fine.   
          (PEN Section 273, subd. (d))

          Existing law provides that any person convicted of child  
          abuse, who under circumstances likely to cause great bodily  
          harm or death, willfully inflicts injury resulting in  
          death, or having care and custody of a child, under  
          circumstances likely to cause great bodily injury or death,  
          causes that child to suffer injury resulting in death shall  
          receive a four-year sentence enhancement for each  
          violation.  (PEN Section 12022.95)

          Existing law states that any person who personally inflicts  
          great bodily injury on any person under the age of five in  







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          the commission of a felony offense shall be punished by an  
          additional and consecutive term of four, five, or six years  
          in the state prison.  (PEN Section 12022.7, subd. (d))

          Existing law declares that any person who personally  
          inflicts great bodily injury on any person other than an  
          accomplice in the commission of a felony or attempted  
          felony which causes the victim to become comatose due to  
          brain injury or to suffer paralysis of a permanent nature,  
          shall be punished by an additional and consecutive term of  
          imprisonment in the state prison for five years.  As used  
          in this subdivision, "paralysis" is defined as a major or  
          complete loss of motor function resulting from injury to  
          the nervous system or to a muscular mechanism.  (PEN  
          Section 12022.7, subd. (b))

          This bill creates a felony, punishable by imprisonment for  
          life with the possibility of parole, for any person who,  
          having the care and custody of a child who is under eight  
          years of age, inflicts great bodily injury which causes the  
          victim to become comatose due to brain injury or to suffer  
          paralysis of a permanent nature.

          This bill defines "paralysis" as a major or complete loss  
          of motor function resulting from injury to the nervous  
          system or to a muscular mechanism.

          This bill is contingent upon the enactment of AB 1844  
          (Fletcher).

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

             Major Provisions                2010-11     2011-12     
             2012-13               Fund  

            New felony          Unknown; potentially  
            substantialGeneral
                                incarceration costs beginning in  
            2020







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           SUPPORT  :   (Verified  8/16/10)

          Child Abuse Prevention Center
          Crime Victims United of California

           OPPOSITION  :    (Verified  8/16/10)

          California Attorneys for Criminal Justice
          Taxpayers for Improving Public Safety

           ARGUMENTS IN SUPPORT  :    According to the California  
          District Attorneys Association:

            "The punishment for the crime of felony child abuse,  
            under circumstances or conditions likely to produce great  
            bodily injury is two, four, or six years in prison.   
            (Pen. Code  273a, subd. (a).)  The penalty is the same  
            even when the crime results in permanent injury or  
            disability to a child.  In contrast, the penalty for the  
            crime of felony child abuse, under the same  
            circumstances, resulting in death is 25 years to life.   
            The chasm between these punishments ignores the reality  
            that some child victims experience permanent injury or  
            disability but do not perish.

            "This past summer a defendant received 10 years in state  
            prison for felony child abuse under Section 273a,  
            subdivision (a), with a great bodily injury enhancement  
            under PC Section 12022.7, subdivision (d).  The defendant  
            shook the then one-year-old child so violently that the  
            child (now four) suffers from permanent brain damage and  
            permanent partial paralysis.

            "The current maximum punishment for felony child abuse  
            that results in permanent injury or disability is  
            outrageously inadequate considering the unconscionable  
            nature of the crime and the impact the perpetrator's  
            actions have on their victim's future quality of life.   
            In order to respond to this abhorrent crime, California  
            needs a statute with a penalty that more justly reflects  
            the severity of an assault on a child resulting in the  
            greatest degree of injury short of death.  A punishment  
            of 15 years to life for this crime is appropriate; it is  







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            less than the punishment for an assault that results in  
            the death of a child, but more than the punishment for  
            the crime of felony child abuse that results in  
            nonpermanent injury."

           ARGUMENTS IN OPPOSITION  :    According to the California  
          Attorneys for Criminal Justice (CACJ):
           
             "By creating a new crime, the proposed amendments would  
            punish these assaults on the same level as an assault  
            resulting in death, a second-degree murder.  We believe  
            that this escalation in criminal liability is  
            unacceptable and inappropriate, given the definition of  
            the crime.  'Force that to a reasonable person would be  
            likely to produce great bodily injury' is a vague  
            standard and makes no distinction between different  
            varieties of intent.  Under this standard, accidental  
            infliction of disabling injury could come within the  
            statute, and be punished with a life sentence as if the  
            act were intentional.  This does not make sense.

            "Acknowledging the tragedy of physical abuse of children,  
            CACJ and its members do not support creating new crimes  
            and augmenting punishment where the standard of proof  
            does not justify the increase in punishment.  In  
            addition, we believe that existing laws already provide a  
            framework to punish child abuse according to the  
            individual circumstances of the crime.  Nothing in this  
            proposed legislation indicates that making a new crime  
            which dramatically increases punishment would deter or  
            prevent the physical abuse of children in the future."


          RJG:mw  8/16/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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