BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 1 3 6 AB 1360 (John P?rez) 0 As Amended June 2, 2009 Hearing date: July 2, 2009 Penal Code AA:br FELONY DOMESTIC VIOLENCE HISTORY Source: Los Angeles County District Attorney's Office Prior Legislation: AB 45 (Murray) - Ch. 847, Stats. 1997 Support: Los Angeles County Sheriff's Department; Planned Parenthood Affiliates of California; California Communities United Institute; California Partnership to End Domestic Violence; California Commission on the Status of Women; California District Attorneys Association; Rainbow Services, Ltd.; Peace Over Violence; AFSCME, AFL-CIO Opposition:California Public Defenders Association Assembly Floor Vote: Ayes 77 - Noes 1 KEY ISSUE SHOULD THE DEFINITION OF FELONY DOMESTIC VIOLENCE BE EXPANDED TO (More) AB 1360 (John. P?rez) PageB INCLUDE THE OFFENDER'S FIANCE OR SOMEONE WITH WHOM THE OFFENDER HAS, OR PREVIOUSLY HAD, A DATING OR ENGAGEMENT RELATIONSHIP, AS SPECIFIED? PURPOSE The purpose of this bill is to expand the definition of felony domestic violence to include the offender's fiance" or "someone with whom the offender has, or previously had, a dating or engagement relationship," as specified. Current law provides that it is a felony<1> for any person to willfully inflict corporal injury resulting in a traumatic condition<2> upon any of the following persons: spouse; former spouse; cohabitant; former cohabitant; or the mother or father of the offender's child. (Penal Code 273.5.) This bill would expand this section to include the offender's "fiance or fiance," or "someone with whom the offender has, or previously had, a dating or engagement relationship." RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION California continues to face a severe prison overcrowding crisis. The Department of Corrections and Rehabilitation (CDCR) --------------------------- <1> The punishment specified in this section is imprisonment in the state prison for 2, 3, or 4 years, or in a county jail for not more than one year, or by a fine of up to $6000 or by both that fine and imprisonment. <2> As used in this section, "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). (More) AB 1360 (John. P?rez) PageC currently has about 170,000 inmates under its jurisdiction. Due to a lack of traditional housing space available, the department houses roughly 15,000 inmates in gyms and dayrooms. California's prison population has increased by 125% (an average of 4% annually) over the past 20 years, growing from 76,000 inmates to 171,000 inmates, far outpacing the state's population growth rate for the age cohort with the highest risk of incarceration.<3> In December of 2006 plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On February 9, 2009, the three-judge federal court panel issued a tentative ruling that included the following conclusions with respect to overcrowding: No party contests that California's prisons are overcrowded, however measured, and whether considered in comparison to prisons in other states or jails within this state. There are simply too many prisoners for the existing capacity. The Governor, the principal defendant, declared a state of emergency in 2006 because of the "severe overcrowding" in California's prisons, which has caused "substantial risk to the health and safety of the men and women who work inside these prisons and the inmates housed in them." . . . A state appellate court upheld the Governor's proclamation, holding that the evidence supported the existence of conditions of "extreme peril to the safety of persons and property." (citation omitted) The Governor's declaration of the state of emergency remains in effect to this day. ---------------------- <3> "Between 1987 and 2007, California's population of ages 15 through 44 - the age cohort with the highest risk for incarceration - grew by an average of less than 1% annually, which is a pace much slower than the growth in prison admissions." (2009-2010 Budget Analysis Series, Judicial and Criminal Justice, Legislative Analyst's Office (January 30, 2009).) (More) AB 1360 (John. P?rez) PageD . . . the evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions. . . . Although the evidence may be less than perfectly clear, it appears to the Court that in order to alleviate the constitutional violations California's inmate population must be reduced to at most 120% to 145% of design capacity, with some institutions or clinical programs at or below 100%. We caution the parties, however, that these are not firm figures and that the Court reserves the right - until its final ruling - to determine that a higher or lower figure is appropriate in general or in particular types of facilities. . . . Under the PLRA, any prisoner release order that we issue will be narrowly drawn, extend no further than necessary to correct the violation of constitutional rights, and be the least intrusive means necessary to correct the violation of those rights. For this reason, it is our present intention to adopt an order requiring the State to develop a plan to reduce the prison population to 120% or 145% of the prison's design capacity (or somewhere in between) within a period of two or three years.<4> The final outcome of the panel's tentative decision, as well as any appeal that may be in response to the panel's final decision, is unknown at the time of this writing. --------------------------- <4> Three Judge Court Tentative Ruling, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (Feb. 9, 2009). (More) AB 1360 (John. P?rez) PageE This bill appears to aggravate the prison overcrowding crisis outlined above. COMMENTS 1. Stated Need for This Bill The author states: 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. 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). Because of this flaw, a defendant who commits a (More) AB 1360 (John. P?rez) PageF 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 batterer's treatment program. State law also requires that domestic violence crimes resulting in death be annually tracked 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 PC 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. (More) 2. What This Bill Would Do This bill would expand the scope of felony domestic violence to include corporal injury against the following persons: the offender's fiance or fiancee<5>; someone with whom the offender has a dating or engagement relationship; and someone with whom the offender previously had a dating or engagement relationship. 3. Background 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, fiance, or fiancee, 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. Under current law, so-called "simple" battery is punishable by a $2000 fine, up to six months in jail, or both. When "simple" battery is domestic violence, however,<6> the potential jail time is double - a period of not more than one year. In addition, if probation is granted in these cases, or the execution or imposition of the sentence is suspended, the defendant must participate in a batterer's treatment program, as specified. (Penal Code 243 (e).) Even the slightest unprivileged touching can constitute a --------------------------- <5> The bill says "fiance and fiance." This appears to be an error the author may wish to have counsel correct. <6> More specifically, a battery 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, as enumerated in Penal Code Section 243(e). (More) AB 1360 (John. P?rez) PageH battery: It has long been established, both in tort and criminal law, that "the least touching" may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.<7> The greater sentence for battery in a domestic violence setting was created in 1989 by AB 238 (Roybal-Allard) - Ch. 191, Stats. 1989. According to the Senate Judiciary Committee analysis of AB 238, the author's intent was to address the need to "differentiate battery between individuals who are, or were, involved in a special relationship such as couples who have lived together but recently separated, dating couples, formerly married and formerly dating couples and gay couples, as more severe than 'common' battery." (Senate Judiciary Committee Analysis of AB 238, as amended May 30, 1989.) Felony domestic violence first was enacted in California in 1945. As explained in People v. Gutierrez (1985) 171 Cal.App.3d 944: (Former Penal Code Section 273d) prohibited a husband from inflicting upon his wife corporal injury resulting in a traumatic condition and prohibited any person from doing the same to any child. In 1977 the Legislature separated the subject matters of child abuse and wife beating found in the original Section 273d. The child abuse prohibition was retained in exact language with the same section number. The wifebeating provisions were renumbered as Section 273.5 and underwent a transformation which prohibited either spouse from inflicting corporal punishment resulting in a traumatic condition on the other. In addition, cohabiting partners of the opposite -------------------- <7> 1 Witkin, California Criminal Law Third Edition, Crimes Against the Person, 12, pp. 645-646 (emphasis in original). AB 1360 (John. P?rez) PageI sex were added as a category of protected individuals.<8> As explained by the court in Gutierrez, "[i]t is injury resulting in a traumatic condition that differentiates this crime from lesser offenses. Both simple assault and misdemeanor battery are included in a prosecution of Section 273.5."<9> Even "minor" physical injury falls within the scope of Section 273.5: Section 273.5 is violated when the defendant inflicts even "minor" injury. Unlike other felonies, e.g., aggravated battery which require serious or great bodily injury, "the Legislature has clothed persons of the opposite sex in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed."<10> *************** --------------------------- <8> People v. Gutierrez, supra, 171 Cal.App.3d at 948. <9> Id. <10> People v. Wilkins (1993) 14 Cal.App.4th 761, 771 (citations omitted).