BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          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  




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                                                      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).



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                                                      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).)



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                                                      AB 1360 (John. P?rez)
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               . . .  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).



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                                                      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  




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                                                      AB 1360 (John. P?rez)
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               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.







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          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).



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                                                      AB 1360 (John. P?rez)
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          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  


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          <7>  1 Witkin, California Criminal Law Third Edition, Crimes  
          Against the Person,  12, pp. 645-646 (emphasis in original).











                                                      AB 1360 (John. P?rez)
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                 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>



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          ---------------------------
          <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).