BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 1432 (Mitchell)                                          
          As Amended  January 4, 2012
          Hearing date: May 8, 2012
          Penal Code  (URGENCY)
          MK:dl


                                        CRIMES  

                                       HISTORY

          Source:  Author

          Prior Legislation: AB 1422 (Torlakson) - Ch. 477, Stats. 2000

          Support: Crime Victims United of California; Peace Officers 
                   Research Association of California; Los Angeles County 
                   Sheriff's Department; an individual

          Opposition:California Public Defenders Association

          Assembly Floor Vote:  Ayes 67 - Noes 3

                                           
                                     KEY ISSUES
           
          SHOULD IT BE A MISDEMEANOR FOR ANY PARENT OR GUARDIAN TO WITHIN 
          24 HOURS KNOWINGLY FAIL TO REPORT THE DEATH OF A CHILD UNDER THE 
          AGE OF 14 IF THE CHILD DIED UNDER CIRCUMSTANCES THAT WOULD LEAD 
          A REASONABLE PERSON TO BELIEVE THAT THE DEATH OCCURRED AS A 
          RESULT OF A CRIME?





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          SHOULD IT BE A MISDEMEANOR FOR ANY PARENT OR GUARDIAN OF A CHILD 
          UNDER 14 YEARS OLD TO KNOWINGLY FAIL TO NOTIFY LAW ENFORCEMENT 
          WITHIN 24 HOURS OF THE DISAPPEARANCE OF THE CHILD UNDER 
          CIRCUMSTANCES THAT WOULD LEAD A RESONABLE PERSON T0 BELIEVE THE 
          CHILD WAS IN DANGER OF PHYSICAL HARM?
                                                                (CONTINUED)



          SHOULD IT BE A MISDEMEANOR FOR ANY PARENT OR GUARDIAN OF A CHILD 
          UNDER 14 YEARS OLD TO KNOWINGLY FAIL TO NOTIFY LAW ENFORCEMENT 
          WITHIN 24 HOURS OF THE DISAPPEARANCE OF THE CHILD WHEN THERE IS NO 
          REASON TO BELIEVE THE CHILD IS IN DANGER OF PHYSICAL HARM?


                                       PURPOSE

          The purpose of this bill is to make it a misdemeanor for a 
          parent or guardian to fail to report the death or disappearance 
          of a child under the age of 14.


           Existing law  states that the desertion of a child in any place 
          with the intent to abandon the child is prohibited and is 
          punishable by imprisonment for up to one year, a fine of $1,000, 
          or both fine and imprisonment.  (Penal Code § 271.)

           Existing law  states that any person who, under circumstances or 
          conditions likely to produce great bodily harm or death, 
          willfully causes the or permits any child to suffer, or inflict 
          thereupon unjustifiable physical pain or mental suffering, or 
          have the care or custody of any child, willfully causes or 
          permits the person or health of that child to be injured, or 
          willfully causes or permits that child to be placed in a 
          situation where his or her person or health is endangered, shall 
          be punished by imprisonment in jail not exceeding one year, or 
          in the state prison for two, four or six years.  (Penal Code § 
          273a(a).)





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           Existing law  states that any person who, under circumstances or 
          conditions other than those likely to produce great bodily harm 
          or death,  willfully causes the or permits any child to suffer, 
          or inflict thereupon unjustifiable physical pain or mental 
          suffering, or have the care or custody of any child, willfully 
          causes or permits the person or health of that child to be 
          injured, or willfully causes or permits that child to be placed 
          in a situation where his or her person or health is endangered, 
          is guilty of a misdemeanor.  (Penal Code § 273a(b).)

           Existing law  states that any person having the care or custody 
          of a child who is under eight years or age, who assaults the 
          child by means of force that a reasonable person would be likely 
          to produce great bodily injury, resulting in the child's death, 
          shall be punished by imprisonment in the state prison for 25 
          years to life.  (Penal Code § 273ab(a).)

           Existing law  states that every person who, having knowledge of 
          an accidental death actively conceals or attempts to conceal 
          that death, shall be guilty of a misdemeanor punishable by 
          imprisonment in a county jail for up to one year, a fine not 
          less than $1,000 or more than $10,000, or by both fine and 
          imprisonment.  "Actively conceal and accidental death" includes:

                 Performing an overt act that conceals the body or 
               directly impeded the ability of authorities or family 
               members to discover the body;
                 Directly destroying the suppressing evidence of the 
               actual physical body of the deceased, including but not 
               limited to, bodily fluids or tissues; or, 
                 Destroying or suppressing the actual physical 
               instrumentality of death.  (Penal Code § 152.)

           Existing law  generally requires any person who reasonably 
          believes that he or she has observed the commission of a murder, 
          rape or forcible molestation against a child under the age of 14 
          years to notify a peace officer, as specified.  These provisions 
          do not apply to a person who is related to either the victim or 
          the offender, including a husband, wife, parent, child, brother, 




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          sister, grandparent, grandchild, or other person related by 
          consanguinity or affinity; a person who fails to report based on 
          a reasonable mistake of fact; or 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.  Violation of this provision is a 
          misdemeanor punishable by a fine of not more than $1,500, by 
          imprisonment in jail for not more than six months, or by both 
          that fine and imprisonment.  (Penal Code §152.3.)

           This bill  provides that any parent or guardian having the care, 
          custody, and control of a child under 14 years of age who 
          knowingly fails to notify law enforcement within 24 hours of the 
          death of a child if the child died under circumstances that 
          would lead a reasonable person to believe that the death 
          occurred as a result of a crime, or the disappearance of the 
          child if the circumstances of the child's disappearance would 
          lead a reasonable person to believe the child was in danger of 
          physical harm shall be guilty of a misdemeanor, punishable by 
          imprisonment a county jail for up to one year and a fine not to 
          exceed $2,000 or by both fine and imprisonment.

           This bill  provides that any parent or guardian having the care, 
          custody and control of a child under 14 years of age who 
          knowingly fails to notify law enforcement within 24 hours of the 
          disappearance of the child under circumstances where there is no 
          concern for harm shall be guilty of a misdemeanor, punishable by 
          imprisonment in a county jail for up to six months, a fine not 
          to exceed $1,000 or by both fine and imprisonment.

                                          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                      ("ROCA")
          
          In response to the unresolved prison capacity crisis, since 
          early 2007 it has been the policy of the chair of the Senate 
          Committee on Public Safety and the Senate President pro Tem to 
          hold legislative proposals which could further aggravate prison 
          overcrowding through new or expanded felony prosecutions.  Under 
          the resulting policy known as "ROCA" (which stands for 




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          "Receivership/Overcrowding Crisis Aggravation"), the Committee 
          has held measures which create a new felony, expand the scope or 
          penalty of an existing felony, or otherwise increase the 
          application of a felony in a manner which could exacerbate the 
          prison overcrowding crisis by expanding the availability or 
          length of prison terms (such as extending the statute of 
          limitations for felonies or constricting statutory parole 
          standards).  In addition, proposed expansions to the 
          classification of felonies enacted last year by AB 109 (the 2011 
          Public Safety Realignment) which may be punishable in jail and 
          not prison (Penal Code section 1170(h)) would be subject to ROCA 
          because an offender's criminal record could make the offender 
          ineligible for jail and therefore subject to state prison.  
          Under these principles, ROCA has been applied as a 
          content-neutral, provisional measure necessary to ensure that 
          the Legislature does not erode progress towards reducing prison 
          overcrowding by passing legislation which could increase the 
          prison population.  ROCA will continue until prison overcrowding 
          is resolved.

          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          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 




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          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.  Design capacity is the number of inmates a 
          prison can house based on one inmate per cell, single-level 
          bunks in dormitories, and no beds in places not designed for 
          housing.  Current design capacity in CDCR's 33 institutions is 
          79,650.

          On January 6, 2012, CDCR announced that California had cut 
          prison overcrowding by more than 11,000 inmates over the last 
          six months, a reduction largely accomplished by the passage of 
          Assembly Bill 109.  Under the prisoner-reduction order, the 
          inmate population in California's 33 prisons must be no more 
          than the following:

                 167 percent of design capacity by December 27, 2011 
               (133,016 inmates);
                 155 percent by June 27, 2012;
                 147 percent by December 27, 2012; and
                 137.5 percent by June 27, 2013.
               
          This bill does not aggravate the prison overcrowding crisis 
          described above under ROCA.






                                      COMMENTS

          1.   Need for This Bill  

          According to the author:

               Law enforcement has known for years that the first 48 
               hours of a person's disappearance are critical to the 
               chances of finding that child alive and successfully 




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               prosecuting any related criminal behavior.  Recent 
               developments make it clear that we don't have the 
               luxury of leaving the protection of children to others, 
               or ignoring well-founded suspicions.

          2.   Failure to Report a Death of a Child





































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          This bill creates a misdemeanor for a parent or guardian to fail 
          to notify law enforcement within 24 hours of the death of a 
          child under the age of 14 if the child died under circumstances 
          that would lead a reasonable person to believe that the death 
          occurred as a result of a crime.  

          If a person actively conceals an accidental death he or she is 
          already guilty of a misdemeanor under Penal Code Section 152 and 
          if he or she caused the death he or she would be guilty of a 
          crime so this bill would be criminalizing those who neither 
          caused the death nor actively concealed an accidental death.

          Under existing law it is also a misdemeanor for a person who is 
          not a family member to fail to report the murder of a child 
          under the age of 14.  That provision was added by AB 1422 
          (Torlakson) in 2000.  From the Committee on Public Safety 
          Analysis at the time the rationale for exempting family members 
          was:

               This language is similar to a Florida law requiring 
               reporting and addresses one of the concerns raised by 
               opposition that in some inter-familial or domestic 
               violence circumstances there may be reasons other than 
               fear to not report one of these crimes.  There are 
               reasons that a person may hesitate before reporting a 
               crime committed by a family member.  If a person 
               ultimately chooses to come forward, that person should 
               not fear being charged with a crime.

          Would the same concern arise with this bill? Would a parent or 
          guardian who does not report the death of their child within 24 
          hours also fear coming forward later because he or she fears 
          being charged with a crime even if he or she was not the cause 
          of the death?

          The reasonable person standard is a civil standard used in 
          negligent cases.  Is the reasonable person standard appropriate 
          for the notification requirement for a criminal law?  If an 
          apparently healthy child dies in his or her sleep, would a 




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          reasonable person believe a crime has been committed?  What if 
          that child had been in a fight that day and ultimately a fall or 
          punch is found to have caused the death, would a parent who knew 
          about the fight but did not make the connection be found guilty 
          under this bill if the police were not notified?  Furthermore, 
          does a person who may have just experienced the death of their 
          child act rationally or reasonably?

          Is 24 hours after the death of a child reasonable?  Could a 
          parent be too traumatized by the death itself in the first 24 
          hours to think about having to notify the police? 

          3.  Notification of Disappearance  

             a.   In danger of physical harm.

            This bill would make it a misdemeanor for a parent or guardian 
            having the care, custody and control of a child under 14 to 
            knowingly fail to notify law enforcement within 24 hours of 
            the disappearance of the child under circumstances that would 
            lead a reasonable person to believe the child was in danger of 
            physical harm.

            The same issue regarding the concerns of a parent reporting on 
            possibly another parent or relative will arise here.  What if 
            a battered spouse waits more than 24 hours to report that her 
            batterer has taken their children and she is worried about 
            them? What if a grandmother with custody of her grandchild who 
            has been taken by the parent wants to try to locate them first 
            before seeking police help because of past run-ins the child 
            has had with the law?  If the persons subject to this bill 
            wait more than 24 hours and then fail to report, will they not 
            report at all?  

            It is also unclear what "the disappearance" of a child means. 
            Generally, a criminal statute must be clear to be 
            prosecutable, is "disappearance" too vague?

             b.    In any circumstance.











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            This bill also makes it a misdemeanor for a parent or guardian 
            to fail to report to law enforcement a child under 14 who is 
            missing 24 hours in circumstance other than those that would 
            lead a reasonable person to believe that the child was in 
            danger.  Does this mean any time the child's location is 
            unknown for 24 hours the child should be reported missing, 
            even though the 13 year old child is one who will "run away" 
            to a friend's house when he or she gets in a fight with his or 
            her parent, or the child leaves one parent's house to go to 
            the other's without telling the first parent?  At what point 
            should a parent determine the child has disappeared?  If the 
            parent believes the child is likely at a friend or relative's 
            house and after 24 hours discovers they are not and spends 
            time looking for the child, is the parent guilty of a 
            misdemeanor for not calling right away?  Could a parent of an 
            11, 12 or 13 year old make a rational and reasonable decision 
            to wait a while before involving law enforcement, especially 
            if the child has already had contacts with law enforcement?  
            Would this bill more appropriately apply to a child of a 
            younger age?



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