BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1280| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 AB 1280 Page 2 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 AB 1280 Page 3 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 AB 1280 Page 4 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 AB 1280 Page 5 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 **** END ****