BILL ANALYSIS Ó
AB 545
Page 1
Date of Hearing: April 5, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 545 (John A. Perez) - As Introduced: February 16, 2011
SUMMARY : Expands the categories of relationships that
constitute felony domestic violence resulting in a traumatic
condition to include former fiancés and fiancées, as well as
current and former dating relationships.
EXISTING LAW :
1)Provides any person who willfully inflicts upon a person who
is his or her spouse, former spouse, cohabitant, former
cohabitant, or the mother or father of his or her child,
corporal injury resulting in a traumatic condition, is guilty
of a felony, and upon conviction thereof shall be punished by
imprisonment in the state prison for two, three, or four
years, or in a county jail for not more than one year, or by a
fine of up to $6,000 or by both that fine and imprisonment.
ÝPenal Code Section 273.5(a).]
2)States that holding oneself out to be the husband or wife of
the person with whom one is cohabiting is not necessary to
constitute cohabitation as the term is used in this section.
ÝPenal Code Section 273.5(b).]
3)Defines a "traumatic condition" 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. ÝPenal Code
Section 273.5(c).]
4)Provides that for the purpose of this section, a person shall
be considered the father or mother of another person's child
if the alleged male parent is presumed the natural father
under specified provisions of the California Family Code.
ÝPenal Code Section 273.5(d).]
5)Provides that any person convicted of violating this section
for acts occurring within seven years of a specified related
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previous conviction shall be punished by imprisonment in a
county jail for not more than one year, or by imprisonment in
the state prison for two, four, or five years, or by both
imprisonment and a fine of up to $10,000. ÝPenal Code Section
273.5(e)(1).]
6)States that any person convicted of a violation of this
section for acts occurring within seven years of a previous
conviction of this section shall be punished by imprisonment
in the state prison for two, three, or four years, or in a
county jail for not more than one year, or by a fine of up to
$10,000, or by both that imprisonment and fine. ÝPenal Code
Section 273.5(e)(2).]
7)Specifies probation conditions related to domestic violence
counseling. The court shall impose one of the following
conditions of probation ÝPenal Code Section 273.5(g)]:
a) If the defendant has suffered one prior conviction
within the previous seven years for a violation of this
section, it shall be a condition thereof, in addition to
specified provisions, that he or she be imprisoned in a
county jail for not less than 15 days.
b) If the defendant has suffered two or more prior
convictions within the previous seven years for a violation
of any offense specified in this section, it shall be a
condition of probation, in addition to the specified
provisions, that he or she be imprisoned in a county jail
for not less than 60 days.
c) The court, upon a showing of good cause, may find that
the mandatory imprisonment required by this subdivision
shall not be imposed and shall state on the record its
reasons for finding good cause.
8)States that if probation is granted upon conviction of a
violation of felony domestic violence, the conditions of
probation may include, consistent with the terms of specified
probation imposed, in lieu of a fine, one or both of the
following requirements ÝPenal Code Section 273.5(h)]:
a) That the defendant make payments to a battered women's
shelter, up to a maximum of $5,000, pursuant to Penal Code
Section 1203.097.
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b) 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.
c) For any order to pay a fine, make payments to a battered
women's shelter, or pay restitution as a condition of
probation under this subdivision, the court shall make a
determination of the defendant's ability to pay. In no
event shall any order to make payments to a battered
women's shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married
person is caused in whole or in part by the criminal acts
of his or her spouse in violation of this section, the
community property may not be used to discharge the
liability of the offending spouse for restitution to the
injured spouse, required by specified Penal Code
provisions, or to a shelter for costs with regard to the
injured spouse and dependents, required by this section,
until all separate property of the offending spouse is
exhausted.
9)States that upon conviction of this section, the sentencing
court shall also consider issuing an order restraining the
defendant from any contact with the victim, which may be valid
for up to 10 years, as determined by the court. It is the
intent of the Legislature that the length of any restraining
order be based upon the seriousness of the facts before the
court, the probability of future violations, and the safety of
the victim and his or her immediate family. This protective
order may be issued by the court whether the defendant is
sentenced to state prison, county jail, or if imposition of
sentence is suspended and the defendant is placed on
probation. ÝPenal Code Section 273.5(i).]
10)States when a battery is 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, fiancé, or
fiancée, or a person with whom the defendant currently has, or
has previously had, a dating or engagement relationship, the
battery is punishable by a fine not exceeding two $2,000, or
by imprisonment in a county jail for a period of not more than
one year, or by both that fine and imprisonment. If probation
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is granted, or the execution or imposition of the sentence is
suspended, it shall be a condition thereof that the defendant
participate in, for no less than one year, and successfully
complete, a batterer's treatment program, as defined in Penal
Code Section 1203.097, or if none is available, another
appropriate counseling program designated by the court.
However, this provision shall not be construed as requiring a
city, a county, or a city and county to provide a new program
or higher level of service. ÝPenal Code Section 243(e)(1).]
11)States that upon conviction of a violation of this
subdivision, if probation is granted, the conditions of
probation may include, in lieu of a fine, one or both of the
following requirements ÝPenal Code Section 243(e)(2)]:
a) That the defendant make payments to a battered women's
shelter, up to a maximum of $5,000.
b) 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.
c) For any order to pay a fine, make payments to a battered
women's shelter, or pay restitution as a condition of
probation under this subdivision, the court shall make a
determination of the defendant's ability to pay. In no
event shall any order to make payments to a battered
women's shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married
person is caused in whole or in part by the criminal acts
of his or her spouse in violation of this section, the
community property may not be used to discharge the
liability of the offending spouse for restitution to the
injured spouse, required by Penal Code Section 1203.04, as
operative on or before August 2, 1995, or Penal Code
Section 1202.4, or to a shelter for costs with regard to
the injured spouse and dependents, required by this
section, until all separate property of the offending
spouse is exhausted.
d) Upon conviction of a violation of this subdivision, if
probation is granted or the execution or imposition of the
sentence is suspended and the person has been previously
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convicted of a domestic violence violation, the person
shall be imprisoned for not less than 48 hours in addition
to specified conditions. However, the court, upon a
showing of good cause, may elect not to impose the
mandatory minimum imprisonment as required by this
subdivision and may, under these circumstances, grant
probation or order the suspension of the execution or
imposition of the sentence.
e) The Legislature finds and declares that these specified
crimes merit special consideration when imposing a sentence
so as to display society's condemnation for these crimes of
violence upon victims with whom a close relationship has
been formed.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "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 victims 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
fiancé or fiancée, 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 felony domestic
violence statute inconsistent with the other domestic violence
laws with respect to who may qualify for that crime. Under
current law, the list of individuals covered by California's
misdemeanor domestic violence law (Penal Code Section 243(e
)(l)) is significantly broader that the individuals covered by
our felony domestic violence law (Penal Code Section 273.5).
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"Because of this loophole, a defendant who commits a felony
battery on his or her fiancé or fiancée, or a person with whom
the defendant currently has, or has previously had, a dating
or engagement relationship is 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) payments to a battered woman's shelter, up to a maximum
of five thousand dollars ($5,000), pursuant to Penal Code
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 convicts
within a 7 year period; and the requirement that an individual
participate in an one-year batterers treatment program.
"State law requires that domestic violence laws track annual
deaths when the deceased was a current or former spouse,
current or former fiancé or fiancée, or a current or former
dating partner (Penal Code Section 11163.6). This discrepancy
in the felony domestic violence statute impacts the reporting
domestic violence cases. By not including the same
relationships in Penal Code Section 273.5 that are used in
annual reporting, the state relies on inaccurate domestic
violence statistics.
"The inclusion of fiancés or fiancées, 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."
2)Background : According to background submitted by the author,
"Under existing law, any person who willfully inflicts
corporal injury resulting in a traumatic condition upon a
person who is his/her spouse, former spouse, cohabitant,
former cohabitant, or the other parent of his/her child, is
guilty of a felony domestic violence.
"California's misdemeanor domestic violence includes the same
list of relationships but also includes a fiancé or fiancée,
and persons with whom the defendant has, or previously had, a
dating or engagement relationship.
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"This inconsistency with respect to which relationship qualifies
for domestic violence creates a serious problem. Because of
this loophole, a defendant who commits a felony battery on
his/her fiancé or fiancée, or a person with whom the defendant
has or has previously had a dating or engagement relationship
are not subject to the same punishment 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 woman's shelter, up to a maximum
of $5,000, pursuant to Penal Code 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; and the requirement that an individual participate in
a one-year batterers treatment program."
3)Felony Battery vs. Domestic Violence : California has created
an elaborate scheme for dealing with the problem of domestic
violence. Individuals who are arrested, charged, or convicted
of domestic violence-related offenses have a variety of
conditions mandated and services available which are not in
place for simple assault and battery offenses. Individuals
arrested and charged with domestic violence offenses may be
required to appear in court at times when battery defendants
are not and face stiffer rules related to protective orders.
Probation conditions include an extensive counseling program
for the purpose of deprogramming violent conduct as it relates
to domestic scenarios. Additionally, criminal penalties for
recidivist conduct are more severe. Finally, additional
counseling and victim advocacy services are available for
victims of domestic violence.
4)Inconsistent Categorization of Victims in Domestic Violence
Cases and Domestic Battery Cases : Current law treats two
categories of offenders with differing provisions.
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, fiancé, or fiancée,
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,
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cohabitant, former cohabitant, or the mother or father of his
or her child.
Proponents argue the differences in these two lists create a
discrepancy in current law with respect to the protection of
victims. Other relationship categories included in the
misdemeanor statute are similarly excluded from the felony
provisions. Proponents argue that this bill would correct
this inconsistency by creating an increased repeat offense
penalty under the broader misdemeanor battery statute.
Legislation has been previously introduced in prior sessions to
expand the category of persons to whom the felony domestic
violence statute would apply. In 1998, AB 45 (Murray), of the
1997-98 Legislative Session, would have expanded the statute
to include non-cohabiting former spouses, a fiancé, fiancée,
or a person with whom the defendant currently has, or has
previously had, a dating relationship. This provision was
amended out of AB 45 before its passage, although this
Committee passed AB 45 to expand the felony domestic violence
statute to include former spouse and person with whom the
defendant had cohabited. During the 1995-96 Legislative
Session, AB 720 (Speier) proposed a similar expansion and was
held on the Assembly Appropriations Committee's Suspense File.
5)Potential for Prison Overcrowding Due to Recidivist Provisions
of Domestic Violence Offenses : Felony assault under Penal
Code Section 245 and felony domestic violence both carry
punishments of up to four years in prison. However, felony
domestic violence have recidivism provisions which increase
punishments for up to five years in state prison if the
defendant has a one of several specified prior offenses. The
prospective prison overcrowding in this scenario is not as
significant as in a simple enhancement of sentences. In this
case, overcrowded is only implicated when a defendant has a
one of the specified prior offenses at the time he or she is
convicted of the new felony domestic violence offense.
When the offense is currently punishable by a substantial prison
term, any proposed increase in that prison term causes concern
for additional prison overcrowding. As California's prison
crisis worsens, close attention should be paid to legislation
increasing prison overcrowding. The California Policy
Research Center (CPRC) recently issued a report on the status
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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, California Policy Research Center (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, 30 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 incentives for 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.
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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 (2007), pg. 1, 2.]
On February 9, 2009, a United States District Court three-judge
panel issued a tentative ruling mandating the State of
California to resolve chronic prison overcrowding. In the
tentative ruling, the judges state "Ýt]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
conditions." With prisons housing twice the population they
were built to accommodate, the prospect of early release of
inmates appears imminent unless the Legislature relieves the
current prison population.
6)Argument in Support : According to the Los Angeles County
Sheriff , "Ýu]nder current law, Penal Code Section 273.5
provides for victims of felony domestic violence. The victim
list includes spouse, former spouse, cohabitant, former
cohabitant, or someone with whom they had a child.
"Penal Code Section 243(e)(1) is the misdemeanor domestic
violence section and provides for all the above mentioned
victim classes but also includes fiancé or fiancée, or with a
person who the victim has or previously had a dating or
engagement relationship. This bill seeks to include these
victim classes in the felony domestic violence section 273.5
to bring both sections into parity regarding these victim
classes.
"Currently, if the suspect is a fiancé or fiancée, or a person
who the victim has or previously had a dating or engagement
relationship, we cannot charge the suspect with the felony
domestic violence section 273.5 even if there exists corporal
injury that results in a traumatic condition. Currently, we
must charge the suspect with the felony assault Section
245(a)(1) of the Penal Code. Penal Code Section 245(a)(1) and
Section 273.5 carry the same term of punishment, two, three,
or four years in state prison. We would essentially be
swapping one felony for another, which would make this
essentially a cost neutral bill.
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"By charging a suspect with felony domestic violence (273.5),
there are better provisions and benefits such as a clear
record being created of domestic violence to be use in
consideration for future domestic violence incidents, domestic
violence and anger management classes, and it would provide
the victim with the ability to seek a ten year restraining
order.
"The scourge of domestic violence is prevalent in our
communities. It is the absolute duty of law enforcement to
protect victims of this heinous crime. It makes sense to
include these victim classes in the felony domestic violence
section (273.5) and would create consistency between the
misdemeanor section Ý243(e)(1)] and the felony section
(273.5)."
7)Argument in Opposition : According to the California Public
Defenders Association , "Ýt]his legislation would ament Penal
Code section 273.5 which provides that anyone who inflicts
corporal injury resulting in a traumatic condition upon
certain people is guilty of a felony. This bill would expand
the definition of people who could be the victims for the
purpose of domestic violence to include '(T)he offender's
fiancé or fiancée, or someone with whom the offender has, or
previously had, a dating or engagement relationship.
"This proposed legislation dilutes the policy reasons underlying
the additional penalties and protections attendant to crimes
of domestic violence. After centuries in which women were
regarded as merely the property of men, women's advocates in
the twentieth century fought long and hard for domestic
violence to be regarded as a crime. Sociological research
documents the psychological and economic dependence which
bound women to their male abusers. Recently, advances in the
neurological sciences have shown that children who witness
domestic violence can have their brain development affected.
The protections for battered women have been extended in
California to males and anyone else in a domestic relationship
or who have children in common. Offenders convicted under the
domestic violence statutes face increased prison sentences,
fines, fees and 52 week long domestic violence counseling
orders.
"The rationale for the domestic violence laws do not apply to
mere friends or people who have a casual dating relationship.
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If they do not meet the current definition of victims for
domestic violence, these friends or romantic partners do not
share the economic dependence or vulnerability that are the
basis for the domestic violence laws. In this proposed
legislation, the offender ever was engaged to or dated the
victim, regardless of when, the offender could be subject to a
felony. For example, if 20 years later the offender slapped
the victim or got into a barroom brawl or senior citizens
center fight, the offender could be prosecuted for a felony
and forced to attend a year of domestic violence counseling."
8)Prior Legislation : AB 1360 (John A. Perez), of the 2009-10
Legislative Session, would have expanded the categories of
relationships that constitute felony domestic violence
resulting in a traumatic condition to include former
fiancés/fiancées, as well as current and former dating
relationships. AB1360 was never heard by the Senate Public
Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Partnership to End Domestic Violence
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Crime Victims United of California
Los Angeles County Sheriff
Opposition
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744