BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 840 (Yee)
As Amended March 8, 2010
Hearing date: March 23, 2010
Penal Code
MK:dl
REPORTING CRIMES
HISTORY
Source: Richmond Improvement Association
Prior Legislation: AB 1422 (Torlakson) - Ch. 477, Stats. 2000
SB 80 (Hayden) - 1999, bill amended to unrelated
issue in Assembly
Public Safety
SB 9 (Rainey) - 1999, not heard in Senate Public
Safety (author joined on
SB 80)
AB 37 (Torlakson) - 1999, failed
Assembly Appropriations
AB 45 (Lempert) - 1999, not heard in
Assembly Public Safety
Support: Police Department of the City and County of San
Francisco; District Attorney of the City and County of
San Francisco; Crime Victims United; Peace Officers
Research Association of California; Children Now; San
Bernardino County Sheriff's Department; CALCASA;
California State Sheriffs' Association; California
Psychiatric Association; Children's Advocacy Institute;
Childhelp; Crime Victims Action Alliance; California
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State PTA; Childrens Hospital Los Angeles; Stockton
Unified School District; California Statewide Law
Enforcement Association
Opposition:California District Attorneys Association; American
Civil Liberties Union
KEY ISSUES
SHOULD THE CURRENT DUTY TO REPORT THE COMMISSION OF A MURDER, RAPE
OR SPECIFIED SEX OFFENSE OF A PERSON UNDER THE AGE OF 14 BE EXTENDED
TO CIRCUMSTANCES WHERE THE VICTIM IS UNDER 18?
SHOULD THE LIST OF SPECIFIED SEX OFFENSES BE EXPANDED?
SHOULD A VICTIM OF THE OFFENSE SUBJECT TO REPORTING BE EXEMPTED FROM
THE DUTY TO REPORT?
SHOULD A CHILD UNDER THE AGE OF 12 BE EXEMPTED FROM THE DUTY TO
REPORT?
PURPOSE
The purpose of this bill is to expand the duty to report the
commission of a murder, rape or specified sex offense on a child
under the age of 18.
Existing law provides that "every person who, after a felony has
been committed, harbors, conceals or aids a principal in such a
felony, with the intent that said principal may avoid or escape
from arrest, trial, conviction or punishment, having knowledge
that said principal has committed such a felony or has been
charged with such a felony or convicted thereof is an accessory
to the felony and is guilty of a wobbler." (Penal Code 32
and 33.)
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Existing law provides that it is a crime for any person having
knowledge of the actual commission of a crime to take money or
property of another, or any gratuity or reward, or any
engagement or promise thereof upon any agreement or
understanding to compound or conceal a crime or abstain from any
prosecution thereof or to withhold any evidence thereof. The
penalty for such crime is a wobbler if the crime being concealed
was punishable by death or life in prison or any other felony
and a six-month misdemeanor if the crime being concealed was a
misdemeanor. (Penal Code 153.)
Existing law imposes specified requirements on a mandated
reporter, as defined, with respect to the observation and
reporting of physical abuse of an elder or dependent adult, with
failure to report punishable as a misdemeanor. (WIC 15630
and 15634.)
Existing law, the Elder Abuse and Dependent Adult Civil
Protection Act, provides for the reporting of actual or
suspected physical or other abuse, as defined, of an elder or
dependent adult by specified persons and entities, including
care custodians, and imposes various requirements on state and
local agencies in processing, investigating, and reporting on
these reports. (Welfare and Institutions Code 15600 et seq.)
Existing law provides that a health care practitioner, child
care provider, child protective agency employee, child
visitation monitor, firefighter, animal control or humane
society officer who reasonably suspects that a child has been
abused must report such suspected child abuse to a child
protective agency. (Penal Code 11166.)
Existing law provides that any person who reasonably believes
that he or she has observed the commission of a murder, rape or
lewd act on a child by force, where the victim is a child under
the age of 14 years shall notify a peace officer. Failure to
notify is a misdemeanor punishable by a fine of not more than
$1,500, up to 6 months in jail, or both fine and jail. The duty
to report does not apply to a person who is related to either
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the victim or offender, a person who fails to report because of
a reasonable mistake of fact or a person who fails to report
based on a reasonable fear for his or her own reasonable fear
for his or her own safety or for the safety of his or her
family. (Penal Code 152.3.)
This bill increases the duty to report to specified crimes
against a victim who is under the age
of 18.
This bill adds to the offenses that must be reported if
committed against a victim under the age of 18 to include
sodomy, lewd acts on a child, oral copulation or sexual
penetration by an unknown object when any of the offenses are
accomplished by use of force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person.
This bill exempts the victim and a person under 12 years of age
from the duty to report.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
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the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
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California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for the Bill
This bill revises this Act in response to the October
24, 2009, alleged rape in Richmond , California , when a
16-year-old female student of Richmond High School was
allegedly raped repeatedly by a group of young males in
a courtyard on the school campus while a homecoming
dance was being held. The existing statutes
could not apply since the victim was older than 14
years old. This bill updates this statute to cover all
children.
It is unconscionable someone could turn its back to a
minor being assaulted; this bill is an attempt to
reassert the collective duty to protect our children.
2. No General Legal Duty to Aid Others
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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Citing LaFave and Scott, a Dayton Law Journal article notes
that generally speaking:
One has no legal duty to aid another person in peril,
even when that aid can be rendered without danger or
inconvenience to himself. He need not shout a warning
to a blind man headed for a precipice or to an
absent-minded one walking into a gunpowder room with a
lighted candle in hand. He need not pull a neighbor's
baby out of a pool of water...though the baby is
drowning? A moral duty to take affirmative actions is
not enough to impose a legal duty to do so.<2>
However, the law review article goes on to say that while LaFave
and Scott are technically correct "[c]riminal law is filled with
obligations ascribing legal duties to all of us based upon the
consensus of our elected officials as to what they believe is
morally appropriate." <3>Seven major areas where a duty to aid
are discussed: a duty to act based upon a relationship of the
parties; a duty to act based upon contract; a duty based upon a
voluntary assumption of care; a duty arising from the fact that
the person created the risk from which the need for protection
arose.; a duty arising from a special relationship that makes a
non-acting partner criminally responsible for the actor's
criminal action; a duty arising from the fact that one owns the
real property upon which the victim is injured, and a duty to
act, and the resulting criminal liability for failing to act,
based upon statute.<4>
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<2> Briggs, David C. "The Good Samaritan is Packing" An Overview
of the Broadened Duty to Aid Our Fellowman, With The Modern
Desire To Possess Concealed Weapons (Winter 1997) 22 Dayton L.
Rev. 225, 227 ( hereafter "The Good Samaritan is Packing")
citing Wayne R. LaFave &Austin W. Scott, Jr. Criminal Law 203
(2nd ed. 1986).
<3> " The Good Samaritan is Packing" supra, at 227.
<4> " The Good Samaritan is Packing" supra, at 227-229.
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The Dayton Law Review article asks the following:
If we have no legal duty based upon any familial,
contractual, consensual or propriety obligation, should
we have an obligation based upon a moral imperative to
come to the aid of another? <5>
A number of different countries and states have chosen to answer
the above question yes and imposed a duty to aid and provide
criminal penalties for failure to do so. These statutes are
divided into three types: duty to aid statutes that cover both
"acts of God" and acts of criminal agents; duty to report a
felony in progress and a victim in need; and duty to report only
specific types of criminal behavior. <6>
3. Existing Duty to Report Specified Offenses When Victim is
Under the Age of 14
In 2000 with AB 1422 (Torlakson), California created a duty to
report a murder, rape or a lewd act on a child by force when the
victim is under 14 years of age. The bill was in response to a
1997 incident in which seven year-old Sherrie Iverson was killed
in a Nevada casino by Jeremy Strohmeyer. Jeremy's best friend
was aware that Strohmeyer was assaulting Sherrie, but did not
contact authorities or try to intervene to save Sherrie or
lessen her injuries. Prior broader bills in response to the
same incident failed to pass the Legislature. Under existing
law, failure to report subjects a person to a misdemeanor
punishable by a fine up to $1,500 (plus penalty assessments)
and/or up to 6 months in jail. There are three exceptions to
the reporting requirement, however: when a person is related to
either the victim or offender; when a person fails to report
based on a reasonable mistake of fact; or, when a person fails
to report based on a reasonable fear for his or her own safety.
4. Changes to Duty to Report
As with the prior bills, this bill is in response to an
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<5> " The Good Samaritan is Packing" supra, at 230.
<6> "The Good Samaritan is Packing" supra, at 230-231.
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incident. As explained by the author, a girl was raped outside
a dance in Richmond, California by a number of people while
others stood around and watched. The victim was over 14 years
of age so the current reporting law did not apply. Witnesses
have come forward and given the police information, although
they did not do so while the crimes were being committed.
According to newspaper articles, some people said they did not
initially report out of fear for their own safety and of being
labeled a "snitch."
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This bill provides that a person shall report one of the
specified offenses when the victim is under the age of 18. It
also increases the list of offenses to include sodomy, oral
copulation and rape by a foreign object when the offenses are
accomplished by use of force, violence, duress, menace or fear
of immediate and unlawful bodily injury on the victim or another
person. Finally, this bill provides that the victim and a child
under 12 years of age have no duty to report.
The author intends to take an amendment in Committee to make the
penalty for this offense a "woblette," punishable by either an
infraction or a misdemeanor.
SHOULD THE CURRENT DUTY TO REPORT THE COMMISSION OF A MURDER,
RAPE OR SPECIFIED SEX OFFENSE OF A PERSON UNDE THE AGE OF 14 BE
EXTENDED TO CIRCUMSTANCES WHERE THE VICTIM IS UNDER 18?
SHOULD THE LIST OF SPECIFIED SEX OFFENSES FOR THIS DUTY BE
EXPANDED?
SHOULD THE VICTIM OF THE OFFENSE SUBJECT TO REPORTING BE
EXEMPTED FROM THE DUTY TO REPORT?
SHOULD A CHILD UNDER THE AGE OF 12 BE EXEMPTED FROM A DUTY TO
REPORT?
SHOULD THE BILL BE AMENDED TO MAKE THE PENALTY A "WOBLETTE"?
5. Opposition
The California District Attorneys Association opposes this bill,
stating:
We appreciate what we perceive to be the implicit goal
of this bill: to increase the frequency with which
terrible crimes are reported to law enforcement.
Unfortunately, we are concerned that this bill could
jeopardize prosecutions for the underlying crimes that
you are seeking to have reported. It is for this reason
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that CDAA opposed the creation of Penal Code Section
152.3 by AB 1422 (Torlakson, Chapter 477, Statutes of
2000) and must now oppose its expansion.
Our specific concern lies with the fact that, if a
prosecutor needs or wants to use a witness who has
failed to report the crime at issue, the prosecutor will
likely have to grant the witness immunity from the
offense of failing to notify a peace officer.
Conferring immunity can damage the People's case because
the immunity agreement will be disclosed to the defense
and could be used as the basis for impeachment despite
the fact that the jury might not know the nature of the
offense for which the witness has been granted immunity.
Additionally, the statute's broad exception from
reporting that applies to a witness who fears for his or
her safety or that of his or her family renders this
law, as currently written and as proposed to be amended
by this bill, essentially toothless. We fear that this
measure will not effectively encourage the reporting of
crimes, but could very likely hinder prosecutions of
horrific offenses by expanding the breadth of the
reporting requirement.
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