BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 545 (John A. Pérez)
As Introduced February 16, 2011
Hearing date: June 28, 2011
Penal Code
AA:mc
DOMESTIC VIOLENCE
HISTORY
Source: Author
Prior Legislation: AB 1360 (John A. Pérez) - 2009-2010 session
(died in Senate Public Safety)
AB 45 (Murray) - Ch. 847, Stats. 1997
Support: Los Angeles County District Attorney's Office; Office
of the California Attorney General; Conference of
California Bar Associations; California State Sheriffs'
Association; California Partnership to End Domestic
Violence
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD FELONY DOMESTIC VIOLENCE BE EXPANDED TO INCLUDE ACTS AGAINST
FORMER FIANCÉS AND FIANCÉES, AND CURRENT AND FORMER DATING
RELATIONSHIPS?
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PURPOSE
The purpose of this bill is to expand felony domestic violence
to include acts against former fiancés and fiancées, and current
and former dating relationships.
Current law 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 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, as
specified. (Penal Code § 243(e)(1).)
Current law 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. (Penal Code
§ 273.5(a).)
Current law defines a "traumatic condition in the context of
felony domestic violence as" 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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Current law provides that any person convicted of violating this
section for acts occurring within seven years of a previous
conviction of this offense, battery where serious bodily injury
is inflicted on the victim (Penal Code § 243(d)), sexual battery
(Penal Code § 243.4), assault with caustic chemicals or
flammable substances (Penal Code § 244), assault with a stun gun
or taser (Penal Code § 244.5), or assault with a deadly weapon
or instrument by any means of force likely to produce great
bodily injury (Penal Code § 245) 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. (Penal
Code § 273.5(e)(1).)
Current law provides that any person convicted of a violation of
this section for acts occurring within seven years of a previous
conviction for misdemeanor domestic violence (Penal Code §
243(e)) 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. (Penal Code § 273.5(e)(2).)
This bill would expand the categories of relationships that
constitute felony domestic violence to include former fiancés
and fiancées, and current and former dating relationships.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
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District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill would appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. What This Bill Would Do
The author states:
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
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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.
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 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 convictions within a 7 year period; and the
requirement that an individual participate in a
one-year batterers treatment program.
2. What This Bill Would Do
As explained above, this bill would expand the scope of felony
domestic violence to include acts against the offender's fiancé
or fiancée, or someone with whom the offender has, or previously
had, a dating or engagement relationship.
3. Background
Current law contains misdemeanor and felony domestic violence
statutes which are not identical in terms of their scope.
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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, cohabitant, former
cohabitant, or the mother or father of his or her child - but
not a fiancé, or fiancée, or a person with whom the defendant
currently has, or has previously had, a dating or engagement
relationship. This bill would add these additional persons to
the felony domestic violence statute.
Under current law, so-called "simple" battery is punishable by a
$2,000 fine, up to six months in jail, or both. When "simple"
battery is domestic violence, however,<1> 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
battery:
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<1> 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, fiancé, or
fiancée, 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).
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
sever, it need not cause bodily harm or even pain,
and it need not leave any mark.<2>
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 described 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
sex were added as a category of protected
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<2> 1 Witkin, California Criminal Law Third Edition, Crimes
Against the Person, § 12, pp. 645-646 (emphasis in original).
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individuals.<3>
The court in Gutierrez further explained, "Ýi]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. . . .
Some other offenses do require higher degrees of harm
to be inflicted before the crime denounced by them is
committed: felony battery, section 243, subdivision
(d), requires "serious bodily injury"; and, felony
assault, section 245, subdivision (a), requires "force
likely to produce great bodily injury." But, 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. Those special relationships form a
rational distinction which has a substantial relation
to the purpose of the statute.<4>
Even "minor" physical injury falls within the scope of section
273.5.<5>
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<3> People v. Gutierrez , supra, 171 Cal.App.3d at 952-953.
<4> Id (emphasis added).
<5> People v. Wilkins (1993) 14 Cal.App.4th 761, 771 (citations
omitted).