BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1360
                                                                  Page  1

          Date of Hearing:   April 21, 2009
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                 AB 1360 (Perez) - As Introduced:  February 27, 2009
           

          SUMMARY  :  Expands the categories of relationships that  
          constitute felony domestic violence resulting in a traumatic  
          condition to include former fianc?s/fianc?es, as well as current  
          and former dating relationships.   

           EXISTING LAW  :

          1)Provides 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, is guilty  
            of a felony, and upon conviction thereof shall be punished by  
            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 Section 273.5(a).] 

          2)States that holding oneself out to be the husband or wife of  
            the person with whom one is cohabiting is not necessary to  
            constitute cohabitation as the term is used in this section.   
            [Penal Code Section 273.5(b).] 

          3)Defines a "traumatic condition" 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  
            Section 273.5(c).]  

          4)Provides that for the purpose of this section, a person shall  
            be considered the father or mother of another person's child  
            if the alleged male parent is presumed the natural father  
            under specified provisions of the California Family Code.   
            [Penal Code Section 273.5(d).] 

          5)Provides that any person convicted of violating this section  
            for acts occurring within seven years of a specified related  








                                                                  AB 1360
                                                                  Page  2

            previous conviction shall be punished by imprisonment in a  
            county jail for not more than one year, or by imprisonment in  
            the state prison for two, four, or five years, or by both  
            imprisonment and a fine of up to $10,000.  [Penal Code Section  
            273.5(e)(1).]  

          6)States that any person convicted of a violation of this  
            section for acts occurring within seven years of a previous  
            conviction of this section shall be punished by 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  
            $10,000, or by both that imprisonment and fine.  [Penal Code  
            Section 273.5(e)(2).]  

          7)Specifies probation conditions related to domestic violence  
            counseling.  The court shall impose one of the following  
            conditions of probation [Penal Code Section 273.5(g)]:

             a)   If the defendant has suffered one prior conviction  
               within the previous seven years for a violation of this  
               section, it shall be a condition thereof, in addition to  
               specified provisions, that he or she be imprisoned in a  
               county jail for not less than 15 days.

             b)   If the defendant has suffered two or more prior  
               convictions within the previous seven years for a violation  
               of any offense specified in this section, it shall be a  
               condition of probation, in addition to the specified  
               provisions, that he or she be imprisoned in a county jail  
               for not less than 60 days.

             c)   The court, upon a showing of good cause, may find that  
               the mandatory imprisonment required by this subdivision  
               shall not be imposed and shall state on the record its  
               reasons for finding good cause.

          8)States that if probation is granted upon conviction of a  
            violation of felony domestic violence, the conditions of  
            probation may include, consistent with the terms of specified  
            probation imposed, in lieu of a fine, one or both of the  
            following requirements [Penal Code Section 273.5(h)]:

             a)   That the defendant make payments to a battered women's  
               shelter, up to a maximum of $5,000, pursuant to Penal Code  
               Section 1203.097.








                                                                  AB 1360
                                                                  Page  3


             b)   That the defendant reimburse the victim for reasonable  
               costs of counseling and other reasonable expenses that the  
               court finds are the direct result of the defendant's  
               offense.

             c)   For any order to pay a fine, make payments to a battered  
               women's shelter, or pay restitution as a condition of  
               probation under this subdivision, the court shall make a  
               determination of the defendant's ability to pay.  In no  
               event shall any order to make payments to a battered  
               women's shelter be made if it would impair the ability of  
               the defendant to pay direct restitution to the victim or  
               court-ordered child support.  Where the injury to a married  
               person is caused in whole or in part by the criminal acts  
               of his or her spouse in violation of this section, the  
               community property may not be used to discharge the  
               liability of the offending spouse for restitution to the  
               injured spouse, required by specified Penal Code  
               provisions, or to a shelter for costs with regard to the  
               injured spouse and dependents, required by this section,  
               until all separate property of the offending spouse is  
               exhausted.

          9)States that upon conviction of this section, the sentencing  
            court shall also consider issuing an order restraining the  
            defendant from any contact with the victim, which may be valid  
            for up to 10 years, as determined by the court.  It is the  
            intent of the Legislature that the length of any restraining  
            order be based upon the seriousness of the facts before the  
            court, the probability of future violations, and the safety of  
            the victim and his or her immediate family. This protective  
            order may be issued by the court whether the defendant is  
            sentenced to state prison, county jail, or if imposition of  
            sentence is suspended and the defendant is placed on  
            probation.  [Penal Code Section 273.5(i).]

          10)States when a battery is committed against a spouse, a person  
            with whom the defendant is cohabiting, a person who is the  
            parent of the defendant's child, former spouse, fianc?, or  
            fianc?e, or a person with whom the defendant currently has, or  
            has previously had, a dating or engagement relationship, the  
            battery is punishable by a fine not exceeding two $2,000, or  
            by imprisonment in a county jail for a period of not more than  
            one year, or by both that fine and imprisonment. If probation  








                                                                  AB 1360
                                                                  Page  4

            is granted, or the execution or imposition of the sentence is  
            suspended, it shall be a condition thereof that the defendant  
            participate in, for no less than one year, and successfully  
            complete, a batterer's treatment program, as defined in Penal  
            Code Section 1203.097, or if none is available, another  
            appropriate counseling program designated by the court.   
            However, this provision shall not be construed as requiring a  
            city, a county, or a city and county to provide a new program  
            or higher level of service.  [Penal Code Section 243(e)(1).]  

          11)States that upon conviction of a violation of this  
            subdivision, if probation is granted, the conditions of  
            probation may include, in lieu of a fine, one or both of the  
            following requirements [Penal Code Section 243(e)(2)]:

             a)   That the defendant make payments to a battered women's  
               shelter, up to a maximum of $5,000.

             b)   That the defendant reimburse the victim for reasonable  
               costs of counseling and other reasonable expenses that the  
               court finds are the direct result of the defendant's  
               offense.

             c)   For any order to pay a fine, make payments to a battered  
               women's shelter, or pay restitution as a condition of  
               probation under this subdivision, the court shall make a  
               determination of the defendant's ability to pay.  In no  
               event shall any order to make payments to a battered  
               women's shelter be made if it would impair the ability of  
               the defendant to pay direct restitution to the victim or  
               court-ordered child support.  Where the injury to a married  
               person is caused in whole or in part by the criminal acts  
               of his or her spouse in violation of this section, the  
               community property may not be used to discharge the  
               liability of the offending spouse for restitution to the  
               injured spouse, required by Penal Code Section 1203.04, as  
               operative on or before August 2, 1995, or Penal Code  
               Section 1202.4, or to a shelter for costs with regard to  
               the injured spouse and dependents, required by this  
               section, until all separate property of the offending  
               spouse is exhausted.

             d)   Upon conviction of a violation of this subdivision, if  
               probation is granted or the execution or imposition of the  
               sentence is suspended and the person has been previously  








                                                                  AB 1360
                                                                  Page  5

               convicted of a domestic violence violation, the person  
               shall be imprisoned for not less than 48 hours in addition  
               to specified conditions.  However, the court, upon a  
               showing of good cause, may elect not to impose the  
               mandatory minimum imprisonment as required by this  
               subdivision and may, under these circumstances, grant  
               probation or order the suspension of the execution or  
               imposition of the sentence.

             e)   The Legislature finds and declares that these specified  
               crimes merit special consideration when imposing a sentence  
               so as to display society's condemnation for these crimes of  
               violence upon victims with whom a close relationship has  
               been formed.
           
          FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "AB 1360 seeks  
            to eliminate an inconsistency in domestic violence laws by  
            amending Penal Code Section 273.5 to expand the scope of  
            felony domestic violence to include relationships found in  
            other domestic violence laws.

            "Specifically, this bill adds to the list of persons who  
            can be charged with felony domestic violence a defendant  
            who is a fianc? or fianc?e, or a person with whom he or  
            she currently has, or previously had, a dating or  
            engagement relationship.  

            "The prevalence of domestic violence has been an  
            increasingly important focus of the Legislature and law  
            enforcement as California has witnessed rates of domestic  
            violence increase.  In order to adequately respond to  
            cases of domestic violence, state laws must be consistent  
            with respect to who qualifies for this crime.  

            "The exclusion of these relationships makes the felony  
            domestic violence statute inconsistent with other  
            domestic violence laws with respect to who may qualify  
            for that crime.  Under current law, the list of  
            individuals covered by California's misdemeanor domestic  
            violence law [Penal Code Section 243(e)(1)] is  
            significantly broader than the individuals covered by our  








                                                                  AB 1360
                                                                  Page  6

            felony domestic violence law (Penal Code Section 273.5).

            "Because of this flaw, a defendant who commits a felony  
            battery on his or her fianc? or fianc?e, or a person with whom  
            the defendant currently has, or has previously had, a dating  
            or engagement relationship are not subject to the same  
            punishments and treatment requirements that other domestic  
            abusers are subject to upon conviction.  For example, if  
            probation is granted, the conditions of probation may include:  
             (a) That the defendant make payments to a battered women's  
            shelter, up to a maximum of $5,000, pursuant to Section  
            1203.097, and/or (b) That the defendant reimburse the victim  
            for reasonable costs of counseling and other reasonable  
            expenses that the court finds are the direct result of the  
            defendant's offense; enhanced penalties for multiple  
            convictions within a seven-year period; requirement that an  
            individual participate in a one-year batterers treatment  
            program.

            "State law also requires that domestic violence crimes track  
            annual deaths when the deceased was a current or former  
            spouse, current or former fianc? or fianc?e, or current or  
            former dating partner (Penal Code Section 11163.6).  This  
            discrepancy in the felony domestic violence statute impacts  
            the reporting of domestic violence cases.  By not including  
            the same relationships in the Penal Code Section 273.5 that  
            are used for annual reporting, the state relies on inaccurate  
            domestic violence statistics.  

            "The inclusion of fianc?s or fianc?es, and current or  
            former dating and engagement partners in Penal Code  
            Section 273.5 will make the felony statute consistent  
            with all other domestic violence laws.  It will enable  
            all offenders to be charged with the appropriate crimes  
            and sentenced to the appropriate punishments.  And it  
            will allow for more accurate statistical reporting of  
            domestic violence occurrences."

           2)Background  :  According to the background submitted by the  
            author, "Under existing law, any person who willfully inflicts  
            corporal injury resulting in a traumatic condition upon a  
            person who is his or her spouse, former spouse, cohabitant,  
            former cohabitant, or the mother or father of his or her  
            child, is guilty of a felony domestic violence punishable by  
            up to four years in state prison.  [Penal Code Section  








                                                                  AB 1360
                                                                  Page  7

            273.5(a).]

            "California's misdemeanor domestic violence includes the same  
            list of relationships, but also includes a fianc? or fianc?e,  
            and persons with whom the defendant has, or previously had, a  
            dating or engagement relationship.

            "The inconsistency with respect to which relationship  
            qualifies for domestic violence creates a serious problem.   
            Because of this flaw, a defendant who commits a felony battery  
            on his or her fianc? or fianc?e, or a person with whom the  
            defendant currently has, or has previously had, a dating or  
            engagement relationship are not subject to the same  
            punishments and treatment requirements that other domestic  
            abusers are subject to upon conviction.  (For example, if  
            probation is granted, the conditions of probation may include:  
             (a) that the defendant make payments to a battered women's  
            shelter, up to a maximum of $5,000, pursuant to Section  
            1203.097 and/or (b) that the defendant reimburse the victim  
            for reasonable costs of counseling and other reasonable  
            expenses that the court finds are the direct result of the  
            defendant's offense; enhanced penalties for multiple  
            convictions within a seven-year period; requirement that an  
            individual participate in a one-year batterers treatment  
            program."

           3)Felony Battery vs. Domestic Violence  :  California has created  
            an elaborate scheme for dealing with the problem of domestic  
            violence.  Individuals who are arrested, charged, or convicted  
            of domestic violence-related offenses have a variety of  
            conditions mandated and services available which are not in  
            place for simple assault and battery offenses.  Individuals  
            arrested and charged with domestic violence offenses may be  
            required to appear in court at times when battery defendants  
            are not and face stiffer rules related to protective orders.   
            Probation conditions include an extensive counseling program  
            for the purpose of deprogramming violent conduct as it relates  
            to domestic scenarios.  Additionally, criminal penalties for  
            recidivist conduct are more severe.  Finally, additional  
            counseling and victim advocacy services are available for  
            victims of domestic violence.   
           
           4)Inconsistent Categorization of Victims in Domestic Violence  
            Cases and Domestic Battery Cases  :  Current law treats two  
            categories of offenders with differing provisions.  








                                                                  AB 1360
                                                                  Page  8

           
             Misdemeanor domestic battery includes a spouse, a person with  
            whom the defendant is cohabiting, a person who is the parent  
            of the defendant's child, former spouse, fianc?, or fianc?e,  
            or a person with whom the defendant currently has, or has  
            previously had, a dating or engagement relationship

            Felony domestic violence includes a spouse, former spouse,  
            cohabitant, former cohabitant, or the mother or father of his  
            or her child.  

            Proponents argue the differences in these two lists create a  
            discrepancy in current law with respect to the protection of  
            victims.  Other relationship categories included in the  
            misdemeanor statute are similarly excluded from the felony  
            provisions.  This bill, proponents argue, would correct this  
            inconsistency by creating an increased repeat offense penalty  
            under the broader misdemeanor battery statute.

            Legislation has been previously introduced in prior sessions  
            to expand the category of persons to whom the felony domestic  
            violence statute would apply.  In 1998, AB 45 (Murray), of the  
            1997-98 Legislative Session, would have expanded the statute  
            to include non-cohabiting former spouses, a fianc?, fianc?e,  
            or a person with whom the defendant currently has, or has  
            previously had, a dating   relationship.  This provision was  
            amended out of AB 45 before its passage, although this  
            Committee passed AB 45 to expand the felony domestic violence  
            statute to include former spouse and person with whom the  
            defendant had cohabited.  During the 1995-96 Legislative  
            Session, AB 720 (Speier), which died in the Assembly, proposed  
            a similar expansion.  

           5)Potential for Prison Overcrowding Due to Recidivist Provisions  
            of Domestic Violence Offenses  :  Felony assault under Penal  
            Code Section 245 and felony domestic violence both carry  
            punishments of up to four years in prison.  However, felony  
            domestic violence have recidivism provisions which increase  
            punishments for up to five years in state prison if the  
            defendant has a one of several specified prior offenses.  The  
            prospective prison overcrowding in this scenario is not as  
            significant as in a simple enhancement of sentences.  In this  
            case, overcrowded is only implicated when a defendant has a  
            one of the specified prior offenses at the time he or she is  
            convicted of the new felony domestic violence offense.  








                                                                  AB 1360
                                                                  Page  9


            When the offense is currently punishable by a substantial  
            prison term, any proposed increase in that prison term causes  
            concern for additional prison overcrowding.  As California's  
            prison crisis worsens, close attention should be paid to  
            legislation increasing prison overcrowding.  The California  
            Policy Research Center (CPRC) recently issued a report on the  
            status of California's prisons.  The report stated,  
            "California has the largest prison population of any state in  
            the nation, with more than 171,000 inmates in 33 adult  
            prisons, and the state's annual correctional spending,  
            including jails and probation, amounts to $8.92 billion.   
            Despite the high cost of corrections, fewer California  
            prisoners participate in relevant treatment programs than  
            comparable states, and its inmate-to-officer ratio is  
            considerably higher.  While the nation's prisons average one  
            correctional officer to every 4.5 inmates, the average  
            California officer is responsible for 6.5 inmates. Although  
            officer salaries are higher than average, their ranks are  
            spread dangerously thin and there is a severe vacancy rate."   
            [Petersilia, "Understanding California Corrections,"  
            California Policy Research Center, (May 2006).]  California's  
            prison population will likely exceed 180,000 by 2010.

            According to the Little Hoover Commission, "Lawsuits filed in  
            three federal courts alleging that the current level of  
            overcrowding constitutes cruel and unusual punishment ask that  
            the courts appoint a panel of federal judges to manage  
            California's prison population.  United States District Judge  
            Lawrence Karlton, the first judge to hear the motion, gave the  
            State until June 2007 to show progress in solving the  
            overpopulation crisis.  Judge Karlton clearly would prefer not  
            to manage California's prison population.  At a December 2006  
            hearing, Judge Karlton told lawyers representing the  
            Schwarzenegger administration that he is not inclined 'to  
            spend forever running the state prison system.'  However, he  
            also warned the attorneys, 'You tell your client June 4 may be  
            the end of the line.  It may really be the end of the line.'

            "Despite the rhetoric, 30 years of 'tough on crime' politics  
            has not made the state safer.  Quite the opposite:  today  
            thousands of hardened, violent criminals are released without  
            regard to the danger they present to an unsuspecting public.   
            Years of political posturing have taken a good idea -  
            determinate sentencing - and warped it beyond recognition with  








                                                                  AB 1360
                                                                  Page  10

            a series of laws passed with no thought to their cumulative  
            impact.  And these laws stripped away incentives for offenders  
            to change or improve themselves while incarcerated.  

            "Inmates, who are willing to improve their education, learn a  
            job skill or kick a drug habit find that programs are few and  
            far between, a result of budget choices and overcrowding.  
            Consequently, offenders are released into California  
            communities with the criminal tendencies and addictions that  
            first led to their incarceration.  They are ill-prepared to do  
                                                                        more than commit new crimes and create new victims."  [Little  
            Hoover Commission Report, "Solving California's Corrections  
            Crisis:  Time is Running Out" pg. 1, 2 (2007).]

            On February 9, 2009, a United States District Court  
            three-judge panel issued a tentative ruling mandating the  
            State of California to resolve chronic prison overcrowding.   
            In the tentative ruling, the judges state "[t]he evidence is  
            compelling that there is no relief other than a prisoner  
            release order that will remedy the unconstitutional prison  
            conditions."  With prisons housing twice the population they  
            were built to accommodate, the prospect of early release of  
            inmates appears imminent unless the Legislature relieves the  
            current prison population.  

           6)Argument in Support  :  According to the  Los Angeles District  
            Attorney's Office  , "The Los Angeles County District Attorney's  
            Office is pleased to sponsor Assembly Bill 1360 with the Los  
            Angeles County Sheriff's Department.

          "AB 1360 would expand the definition of felony domestic violence  
            to include current and former fianc?s or fianc?es and persons  
            currently or formerly in a dating or engagement relationship  
            as individuals who may qualify to be charged with this crime.   


          "Under existing law, any person who willfully inflicts corporal  
            injury resulting in a traumatic condition upon a person who is  
            his or her spouse, former spouse, cohabitant, former  
            cohabitant, or the mother or father of his or her child, is  
            guilty of a felony domestic violence punishable by up to 4  
            years in state prison. (Penal Code Section 273.5(a)).

          "California's misdemeanor domestic violence statute provides  
            that a battery committed against a spouse, a person with whom  








                                                                  AB 1360
                                                                  Page  11

            the defendant is cohabiting, a person who is the parent of the  
            defendant's child, former spouse, fianc?, or fianc?e, or a  
            person with whom the defendant currently has, or has  
            previously had, a dating or engagement relationship, the  
            battery is punishable by up to a year in a county jail.   
            [Penal Code Section 243(e)(1).]

          "Under current law the list of individuals covered by  
            California's misdemeanor domestic violence law [Penal Code  
            Section 243(e)(1)] is significantly broader than the  
            individuals covered by our felony domestic violence law (Penal  
            Code Section 273.5).

          "Individuals who are a 'fianc?, or fianc?e, or a person with  
            whom the defendant currently has, or has previously had, a  
            dating or engagement relationship' are covered by our  
            misdemeanor statute but not the felony statute.  

          "AB 1360 would correct this problem by expanding the scope of  
            the felony statute to cover the same list of victims as the  
            misdemeanor statute.

          "Because of this flaw, a defendant who commits a felony battery  
            on his or her fianc?, or fianc?e, or a person with whom the  
            defendant currently has, or has previously had, a dating or  
            engagement relationship are not subject to the same  
            punishments and treatment requirements that other domestic  
            abusers are subject to upon conviction.  (For example, if  
            probation is granted, the conditions of probation may  
            include:(1) That the defendant make payments to a battered  
            women's shelter, up to a maximum of five thousand dollars  
            ($5,000), pursuant to Section 1203.097 and/or (2) That the  
            defendant reimburse the victim for reasonable costs of  
            counseling and other reasonable expenses that the court finds  
            are the direct result of the defendant's offense; Enhanced  
            penalties for multiple convictions within a 7 year period;  
            requirement that an individual participate in a one-year  
            batterers treatment program)."  

          7)Prior Legislation  :  AB 45 (Murray), 1997-1998 Legislative  
            Session, would have allowed judges setting bail to set an  
            amount necessary to protect the victim and victim's family  
            from further abuse, and requires interested parties shall  
            receive a copy of domestic violence restraining orders.  At  
            the time it was heard in this Committee, AB 45 contained the  








                                                                  AB 1360
                                                                  Page  12

            provisions of this bill.  The provisions adding fianc?s and  
            fianc?es, as well as dating relationships, were removed in the  
            Senate.  

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Los Angeles County Sheriff's Department (Co-Sponsor)
          California Commission on the Status of Women
          California Communities United Institute 
          California District Attorneys Association
          California Partnership to End Domestic Violence 
          Planned Parenthood Affiliates of California 

           Opposition 
           
          California Public Defenders Association
           

          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744