BILL ANALYSIS Ó
AB 60
Page 1
Date of Hearing: April 12, 2011
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 60 (Jeffries) - As Amended: April 5, 2011
SUMMARY : Makes felony battery against a peace officer, or
felony battery with injury against a firefighter, custodial
officer, emergency medical technician (EMT), lifeguard, process
server, or animal control officer engaged in the performance of
his or her duties, as specified, a "strike" for the purpose of
enhancing a defendant's sentence under the "Three Strikes Law"
for as much as 25-years-to-life in the state prison.
Specifically, this bill :
1)Makes felony battery against a peace officer, or felony
battery with injury requiring medical attention against a
firefighter, custodial officer, emergency medical technician,
lifeguard, process server, or animal control officer engaged
in the performance of his or her duties, as specified, a
"violent" felony, as specified.
2)Makes felony battery against a peace officer, or felony
battery with injury requiring medical attention against a
firefighter, custodial officer, emergency medical technician,
lifeguard, process server, or animal control officer a
"serious" felony, as specified.
3)Revises the "lock in date" of the lists of "serious" and
"violent" felonies to include amendments to those statutes
made during the 2011-12 Legislative Session.
EXISTING LAW :
1)Provides that if a defendant is convicted of a felony offense
and it is pled and proved that the defendant has previously
been convicted of two or more serious or violent offenses as
specified, the term for the current conviction is an
indeterminate term of life in prison with the minimum term
calculated as the greater of 25 years, three times the term
provided for each current felony conviction, or the
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determinate term which would otherwise be imposed including
enhancements. (Penal Code Sections 667 and 1170.12.)
2)Provides that if a defendant is convicted of a felony offense
and it is pled and proved that the defendant has been
convicted of one prior serious or violent offense as defined,
the term of imprisonment is twice the term otherwise imposed
for the current offense. (Penal Code Sections 667 and
1170.12.)
3)Defines "battery" as the willful and unlawful use of force and
violence upon another person, punishable by up to six months
in the county jail; by a fine not to exceed $2,000; or by both
fine and imprisonment. ÝPenal Code Sections 242 and 243(a).]
4)Battery upon a peace officer engaged in the performance of his
or her duties is punishable by imprisonment in a county jail
not to exceed one year, or in the state prison for 16 months,
2 or 3 years; by a fine not to exceed $10,000; or by both a
fine and imprisonment. ÝPenal Code Section 243(c)(2).]
5)Provides that where the victim of a battery is a custodial
officer, firefighter, EMT, physician or nurse providing
emergency care, lifeguard, process server, traffic officer, or
animal control officer, engaged in the performance of his or
her duties, the misdemeanor is punishable by up to one year in
the county jail; a fine of up to $2,000; or both. If the
victim suffers an injury requiring medical care, the crime is
an alternate felony-misdemeanor, punishable by up to one year
in the county jail; a fine of up to $2,000; or both; or by 16
months, 2 or 3 years in state prison. ÝPenal Code Section
243(b) and (c).]
6)Provides that battery resulting in serious bodily injury is an
alternate felony-misdemeanor, punishable by up to one year in
the county jail or two, three, or four years in state prison.
ÝPenal Code Section 243(d).]
7)Battery committed upon a custodial officer where it should
reasonably be known that such victim is a custodial officer in
the performance of his or her duties is punishable by
imprisonment in the state prison for 16 months, 2 or 3 years.
(Penal Code Section 243.1.)
8)Provides that notwithstanding any other law, any person who is
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convicted of a felony that is contained in the "violent"
felony list shall accrue no more than 15% of work-time credit.
ÝPenal Code Section 2933.1(a.)]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "On November
7th, 2010 Officer Ryan Bonaminio was beaten, shot and killed
in the City of Riverside after pursuing a hit and run suspect.
At the age of 27 Officer Bonaminio was a four year veteran of
the Riverside Police Department and a U.S Army war veteran who
served two tours in Iraq. His loss will greatly affect the
community and could have been prevented.
"Two days later Mr. Earl Green was charged with the crime. The
accused has been convicted of half a dozen felonies, including
battery against a peace officer. In one of these assaults he
broke the nose of the peace officer. Yet not one of these
violent felonies was considered a 'strikeable' offense. If
they had been twenty-seven year old Officer Bonaminio would be
alive today.
"This incident brings to light a flaw in the law: A felony
charge of battery on a peace officer is not a strikeable
offense. If one is willing to physically attack an officer
what then are they not willing to do? The current law does
not reflect the escalating nature of this crime.
"In 2010 California saw a significant increase in the death of
law enforcement officers, reaching second in the nation. If
any of these deaths are preventable we are responsible to
protect these men and women who serve and protect our
communities.
"AB 60 will ensure felony charges of battery against a peace
officer are considered a serious and violent offense; making
it a strike. AB 60 recognizes the significance of physically
assaulting an officer, the sign of lack of respect for the
law, and the potential of escalating crime.
"Our officers place themselves at risk in order to ensure the
safety of our communities. It is our responsibility to do
what is in our power to protect them and hold those who commit
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crimes against them responsible for their actions. AB 60 does
just that. Currently a felony charge of battery against a
peace officer is not considered either a serious or a violent
crime. This ensures that it is not considered a strike.
"Current law does not consider a felony charge of battery a
strikeable offense unless "enhancements" can be attached to
the crime. Potential enhancements are vaguely described in
California law and are charged inconsistently. I believe that
the subject, a peace officer, should be an enhancement in
itself. AB 60 places this in law and holds those attacking
peace officers should be held accountable for their crimes.
"Current law also allows for a distinction between a misdemeanor
charge and a felony charge. This allows prosecutors and
judges to distinguish what is not serious enough of a crime to
be charged as a felony. This will remain under AB 60.
"The loss of committed Officer Ryan Bonaminio and many others
like him to those who should have been identified as threats
is a travesty. AB 60 does what is in the legislature's power
to hold those who attack our officers responsible for the
serious crime they are committing."
2)"Violent" Felony Designation : This bill adds felony battery
on a peace officer to the list of "violent" crimes that may
trigger an enhanced penalty under the "Three Strikes" Law, and
causes an offender to receive fewer "custody credits" toward
release on parole.
Battery is the unlawful use of force or violence upon the person
of another. (Penal Code Section 242.) The words "force" and
"violence" are synonymous and mean any application of physical
force against the person of another even though that force
causes no pain or bodily harm or leaves no mark but the
feelings of such person are injured by the act. The slightest
touching, if done in an insolent, rude, or angry manner, is
sufficient. (CALJIC 16.141.)
Since battery only requires the use of force or violence upon
the person of another, battery upon a peace officer can
consist of nothing more than a push or shove of the officer.
For this reason, battery upon a peace officer is punishable as
an alternate felony/misdemeanor, which means that the offense
may be charged as either a misdemeanor or a felony at the
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discretion of the prosecutor. This bill adds the alternate
felony/misdemeanor of battery on a peace officer to the list
of violent felonies. The violent felony list contains the
most serious crimes under California law, including crimes
such as murder, attempted murder, mayhem, forcible sex crimes,
arson, and robbery. The violent felony list does not contain
any crimes classified as alternate felony/misdemeanors as they
are not deemed to be of a serious enough nature if they can
alternatively be charged as a misdemeanor. To add the
alternate felony/ misdemeanor offense of battery on a peace
officer to the list of violent felonies would be
unprecedented.
Battery committed upon any person, including peace officers,
where serious bodily injury is inflicted on the person would
be a violent felony. Penal Code Section 667.5(c)(8) provides
that any felony in which the defendant inflicts great bodily
injury, as defined, upon any person other than an accomplice
is a violent felony. Serious bodily injury and great bodily
injury are synonymous as they both require a significant or
substantial physical injury. ÝPenal Code Sections 12022.7 (f)
and 243 (f)(4).] Thus, it would appear that the murderer of
Officer Bonnaminio could have been previously been charged
with a violent felony for breaking the nose of a peace
officer. A bone fracture of the nose is considered great
bodily injury as a matter of law. (People v. Villarreal
(1985) 173 Cal App. 3rd 1136, 1141).
3)Prison Overcrowding Crisis : One of the effects of designating
a crime as a violent felony is that it reduces an inmate's
work-time credits. Penal Code Section 2933.1(a) provides,
notwithstanding any other law, that any person convicted of a
crime listed in Penal Code 667.5(c), the violent felony list,
shall accrue no more than 15% of work-time credit. Inmates in
the state prison who are not convicted of violent crimes, or
sentenced under the "Three Strikes" Law, receive what is
generally known as "day-for-day" credits. Penal Code Section
2933(b) provides that for every six months of continuous
incarceration a prisoner shall be awarded credit reductions
from his or her term of confinement of six months. Therefore,
at present, a prisoner committed to state prison for the
conviction of felony battery upon a peace officer is required
to serve one-half of his or her sentence. By making felony
battery upon a peace officer a violent felony, this bill
requires that a prisoner serve 85% of his or her sentence.
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Clearly, designating felony battery upon a peace officer as a
violent felony will require persons convicted to serve longer
periods of incarceration.
The California Policy Research Center (CPRC) 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."
ÝPetersilia, Understanding California Corrections, CPRC (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, thirty 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
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
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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 . . . . "
ÝLittle Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out, pg. 1, 2 (2007).]
In January 2010, the Three Judge Panel issued its final ruling
ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. ÝColeman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] The United States
Supreme Court heard oral argument in November 2010 and is
expected to rule by June 2011 on whether the Three Judge
Panel's "prisoner release order" is an appropriate and
narrowly tailored remedy contemplated by the Prison Litigation
Reform Act. ÝDocket No. 09-1233; November 30, 2010.] Given
the immediacy of the final disposition of this landmark case,
great care ought to be paid to any bill that exacerbates
California's already overcrowded prisons.
4)Expands the Three Strikes Law : This bill makes felony battery
upon a peace officer both a serious and violent felony. Under
California's Three Strikes Law, if a defendant is convicted of
a felony offense and it is pled and proved that the defendant
has previously been convicted of two or more serious or
violent offenses, the term for the current conviction is an
indeterminate term of life in prison with the minimum term
calculated as the greater of 25 years, three times the term
provided for each current felony conviction, or the
determinate term which would otherwise be imposed including
enhancements. (Penal Code Sections 667 and 1170.12.).
Further, if a defendant is convicted of a felony offense and
it is pled and proved that the defendant has been convicted of
one prior serious or violent offense as defined, the term of
imprisonment is twice the term otherwise imposed for the
current offense. (Penal Code Sections 667 and 1170.12.)
Clearly, making felony battery upon a peace officer a serious
and violent felony expands the Three Strikes Law and subjects
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a defendant to an enhanced sentence of as much as
25-years-to-life in the state prison.
5)Argument in Support : According to the City of Riverside , "On
November 7, 2010, Riverside Police Officer, Ryan Bonaminio,
was beaten, shot and killed after pursuing a hit and run
suspect. At the young age of 27, Officer Bonaminio was a
four-year veteran of the Riverside Police Department and U.S.
army war veteran who served two tours in Iraq.
"Two days later Mr. Earl Green, previously convicted of a half
dozen other felonies, including felony battery against a
police officer, was charged with the crime against Mr.
Bonaminio. None of his prior violent felonies were considered
a "strikeable" offense. If it had, 27 year old officer
Bonaminio would be alive today.
"AB 60 recognizes the significance of physically assaulting an
officer, the sign of lack of respect for the law, and the
potential of escalating crime against the police and community
members. Our officers place themselves at risk in order to
ensure the safety of our communities. It is our
responsibility to do what is in our power to protect them and
hold those who commit crimes against them responsible for
their actions. AB 60 does just that.
"Current law allows for a distinction between a misdemeanor
charge and felony battery charge. This allows prosecutors and
judges to distinguish what is not serious enough of a crime to
be charged as a felony. This will remain under AB 60."
6)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "The primary purpose of PC 667.5 and PC
1192.7 is to increase punishment on those who commit the most
heinous crimes against our community. These two statutes are
the heart and soul of the California 'Three Strikes, You're
Out' law. AB 60 seeks to raise the crime of battery on
certain groups of people, not just those in law enforcement,
to the same level of offense as murder, child molesting, rape,
robbery, arson and the use of a firearm as it applies to what
is as a 'serious' or 'violent' felony. The 'strike' law, to
maintain its integrity, must be limited to the worst criminal
behavior and not applied to a simple battery which is elevated
to a felony by what position the victim holds rather the
injury or loss to the victim.
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"Penal code section 243c which AB 60 seeks to elevate to a
potential 'strike' provides either misdemeanor or felony
treatment for a violation thereof. Thus, it is known in
criminal law circles as a 'wobbler.' CACJ would point out
that none of the twenty-three crimes currently listed in PC
667.5 (violent felonies) are 'wobblers.' This is no doubt
because, as the paragraph immediately above explains, this
harsher punishment is reserved for the harshest crimes.
Similarly, for the same reasons, only three wobblers (PC
243(c)(2), PC 245.5, and PC 422) out of forty-three are
included in the definition of serious felonies under PC1192.7.
Thus it would appear that over the years the Legislature has
been careful in selecting which crimes merit the additional
punishment reserved under the 'strike' law. The Legislature
should be careful now not to equate battery on a dog catcher
or process server, as proposed in AB 60, with battery on a
peace officer."
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
City of Riverside
City of Riverside Police Department
Riverside County Sheriff
Peace Officers Research Association of California
Riverside Police Officers' Association
Riverside Sheriffs' Association
California Professional Firefighters
16 Private Citizens
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Coalition for Women Prisoners
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
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