BILL ANALYSIS
SB 840
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Date of Hearing: June 15, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 840 (Yee) - As Amended: April 13, 2010
SUMMARY : Expands the requirement that witnesses report the
murder, rape, or specified sexual offense upon minors under the
age of 18. Specifically, this bill :
1)Increases the age triggering a reporting requirement from 14
years of age to 18 years.
2)Expands the sex crimes that witnesses must report to include
sodomy, oral copulation, and sexual penetration, as specified,
where those crimes are accomplished by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
3)Creates an alternative infraction to the existing misdemeanor
violation of failing to report.
4)Specifies that victims cannot be prosecuted for failing to
report crimes against themselves.
5)Includes domestic partners to the list of relations that are
not required to report one another for committing a specified
crime.
6)Specifies that minors under the age of 12 may not be
prosecuted for failing to report as specified.
EXISTING LAW :
1)States that any person who reasonably believes that he or she
has observed the commission of any of the following offenses
where the victim is a child under the age of 14 years shall
notify a peace officer: murder, rape, and specified lewd and
lascivious acts committed by force or fear. (Penal Code
Section 152.3).
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a) The reporting shall not be construed to affect
privileged relationships as provided by law.
b) The duty to notify a peace officer imposed is satisfied
if the notification or an attempt to provide notice is made
by telephone or any other means.
c) Failure to notify as required is a misdemeanor and is
punishable by a fine of not more than $1,500, by
imprisonment in a county jail for not more than six months,
or by both that fine and imprisonment.
d) The requirements of this section shall not apply to the
following:
i) A person who is related to either the victim or the
offender, including a husband, wife, parent, child,
brother, sister, grandparent, grandchild, or other person
related by consanguinity or affinity.
ii) A person who fails to report based on a reasonable
mistake of fact.
iii) A person who fails to report based on a reasonable
fear for his or her own safety or for the safety of his
or her family.
2)Provides that in any case in which the defendant, voluntarily
acting in concert with another person, by force or violence
and against the will of the victim, committed an act of rape
or sexual assault, either personally or by aiding and abetting
the other person, that fact shall be charged in the indictment
or information and if found to be true by the jury, upon a
jury trial, or if found to be true by the court, upon a court
trial, or if admitted by the defendant, the defendant shall
suffer confinement in the state prison for five, seven, or
nine years. (California Penal Code Section 264.1).
3)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 an alternate
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felony/misdemeanor. (Penal Code Sections 32 and 33.)
4)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 an alternate felony/misdemeanor 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 Section 153.)
5)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. (California Welfare and
Institutions Code Sections 15630 and 15634.)
6)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.)
7)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. Any
commercial film and photographic print processor who observes
photographic material which depicts a child under age 16
engaged in an act of sexual conduct must report the instance
of suspected child abuse. (Penal Code Section 11166.)
8)Provides that any person who commits a lewd or lascivious act
with the intent of arousing sexual desires by use of force,
violence, menace or fear of immediate and unlawful bodily
injury on the victim or another person is guilty of a felony.
[Penal Code Section 288(b)(1).]
9)Defines "assault" as an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of
another. (Penal Code Section 240.)
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill would
update the Sherrie Iverson Child Victim Protection Act in the
light of the alleged rape in Richmond.
"This bill requires, with specified exceptions, any person who
reasonably believes that he or she has observed the commission
of either a murder, rape, or a lewd or lascivious act with a
child under the age of 18 years to notify a peace officer by
telephone or by any other means. The failure to notify as
required would be a misdemeanor punishable by a fine of
$1,500, or by imprisonment in a county jail for up to six
months, or both.
"Six other states have similar statutes requiring aid to
victims or reporting crimes (Massachusetts, Minnesota, Ohio,
Rhode Island, Washington, and Wisconsin).
"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)Rape in Concert : "Penal Code Section 264.1 provides that in
any case in which the defendant, voluntarily acting in concert
with another person, by force or violence and against the will
of the victim, committed an act of rape or sexual assault,
either personally or by aiding and abetting the other person,
that fact shall be charged in the indictment or information
and if found to be true by the jury, upon a jury trial, or if
found to be true by the court, upon a court trial, or if
admitted by the defendant, the defendant shall suffer
confinement in the state prison for five, seven, or nine
years."
3)No General Legal Duty to Aid Others : Under the current legal
system dating back to the foundation of common law in the
Magna Carta, there has been no legal duty to aid others in
peril. The entire system of criminal laws and civil laws have
been developed with that principal in mind. Creating a legal
duty to aid others can have significant impacts on other
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aspects of criminal and civil law which should not be ignored.
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."
[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, citing Wayne R. LaFave &Austin W. Scott, Jr.
Criminal Law 203 (2nd ed. 1986).]
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." Seven major areas where a
duty to aid are discussed:
a) A duty to act based upon a relationship of the parties;
b) A duty to act based upon contract;
c) A duty based upon a voluntary assumption of care;
d) A duty may arise from the fact that the person created
the risk from which the need for protection arose;
e) A duty can arise from a special relationship that makes
a non-acting partner criminally responsible for the actor's
criminal action;
f) A duty can arise from the fact that one owns the real
property upon which the victim is injured; and,
g) The duty to act and the resulting criminal liability for
failing to act, based upon statute.
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This bill imposes the last of the above duties. 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?"
A number of different countries and states have chosen to
answer the above question with "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, duty
to report only specific types of criminal behavior.
4)Exceptions to the Reporting Requirement : This bill specifies
several additional exceptions to the reporting requirement.
Specifically:
a) Domestic Partnerships : This bill adds domestic partners
to the list of relationships that are not required to
report the specified crimes. The law often takes into
consideration certain relationships that society feels
should permit candid communication such as doctors and
patients, priests and followers, as well as husbands and
wives. Including domestic partnerships in this group of
relationships is consistent with existing law.
b) Minors under the Age of 12 : This bill exempts minors
under the age of 12 from having to report the specified
crimes. Often, the law takes into consideration the lack
of ability of young minors to exercise sufficient judgment
to make decisions of a legal nature. It is perfectly
reasonable to believe that a minor 10 to 11 years of age
may not fully understand what he or she has witnessed or
that he or she indeed had a duty to report; exempting
minors under the age of 12 from these provisions seems good
public policy.
c) Victims of the Offense : This bill exempts victims from
being prosecuted for failing to report crimes committed
against themselves. This is a common-sense approach that
will prevent victims from being discouraged from reporting
crimes against them.
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5)Impacts on Effective Law Enforcement :
a) Effect on Investigation by a Peace Officer : The Fifth
Amendment to the United States Constitution includes a
privilege against self-incrimination. Under the Miranda
rules, law enforcement officers must inform an in custody
criminal "suspect" of his or her right to remain silent and
to have an attorney. [Miranda v. Arizona (1966) 384 U.S.
436.] A "suspect" is a person upon whom investigating
officers have focused their attention as the likely
perpetrator of a crime. [People v. Stansbury (1993) 4
Cal.4th 1017, 1050-1054.] "Custody" generally means
detention by the police such that the person is not free to
leave. [Id. at 1053-1054; People v. Esqueda (1993) 17
Cal.App.4th 1450.]
A person who is talking to a peace officer to report a crime
under this statute becomes a "suspect"- a likely
perpetrator of a crime. Thus, once a person becomes a
suspect, he or she cannot disclose what it was he or she
witnessed and when without incriminating himself or
herself.
Likewise, if a witness is located during the course of an
investigation who failed to report the crime, initially he
or she will be unable to provide law enforcement with a
statement without violating his or her Fifth Amendment
right against self-incrimination, for instance when a
person witnesses a rape and fails to report the incident to
law enforcement and is later located. If law enforcement
later questions that person about what he or she saw
related to the incident, the witness potentially becomes
another defendant as he or she has committed a crime under
this bill. Any statement taken by the police would have to
be after a Miranda warning from the investigating officers.
And, the witness could legally refuse to provide
information by invoking his or her right against
self-incrimination under the Fifth Amendment.
As stated above, the system of laws has been established
around NOT having a duty to aid others. By imposing a duty
to aid, other areas of the criminal justice system will be
impacted and potentially conflict. By potentially
requiring law enforcement to Mirandize all witnesses and by
making potential witnesses potential defendants, criminal
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investigations into the most serious of crimes will be
significantly impacted.
6)Effect on the Credibility of a Potential Witness : If a
district attorney uses a witness who did not report one of
these crimes, the district attorney will have to give the
witness immunity or charge him or her with a crime. The
district attorney will be required to inform defense counsel
of any immunity deal and the witness will then be subject to
impeachment on cross-examination. Any effective criminal
defense attorney will utilize the fact that a witness was
given immunity for testimony to color the testimony of the
witness, thereby reducing the witness's credibility.
7)Argument in Support : According to Crime Victims United of
California , "SB 840 would expand those provision to apply when
the victim of the offense observed is under 18 years of age,
and would specify that this obligation to report crimes to a
peace officer applies to sodomy, oral copulation, and sexual
penetration, as specified, where those crimes are accomplished
by use of force, violence, duress, menace, or fear from
immediate and unlawful bodily injury on the victim or another
person.
"This bill removes the senseless provision that limits the
reporting requirement by individuals witnessing violent crimes
against victims to only those victims under the age of 14.
Victims of violent crime should be able to expect that
regardless of one's age, witnesses to their crimes will report
the atrocities to law enforcement and provide the relevant
information to assist in apprehending the victim's
attacker(s)."
8)Related Legislation: AB 984 (Nava) eliminates the requirement
that a victim be under the age of 14 when making it a crime
for a person to fail to report to police an instance when he
or she witnesses a murder, rape, or specified lewd and
lascivious acts. AB 984 is pending hearing by the Senate
Public Safety Committee.
9)Prior Legislation : AB 1422 (Torlakson), Chapter 477, Statutes
of 2000, created a misdemeanor offense after observing the
following crimes against a child under the age of 14: (a) a
lewd act on a child by force or fear, (b) rape, and (c)
murder.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Coalition Against Sexual Assault
California District Attorney's Association
California Narcotic Officers Association
California Peace Officers' Association
California Police Chiefs Association
California Psychiatric Association
California State PTA
California State Sheriffs' Association
California Statewide Law Enforcement Association
California Teacher's Association
Child Abuse Prevention Center
Childhelp
Children Now
Children's Advocacy Institute
Childrens Hospital Los Angeles
City and County of San Francisco
Community Violence Solutions
Crime Victims Action Alliance
Crime Victims United of California
Peace Officers Research Association of California
Richmond Improvement Association
San Bernardino County Sheriff's Department
San Francisco District Attorney
Stockton Unified School District
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744