BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 1 4 3 2 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? (More) AB 1432 (Mitchell) Page 2 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).) (More) AB 1432 (Mitchell) Page 3 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, (More) AB 1432 (Mitchell) Page 4 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 (More) AB 1432 (Mitchell) Page 5 "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 (More) AB 1432 (Mitchell) Page 6 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 (More) AB 1432 (Mitchell) Page 7 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 (More) 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 (More) AB 1432 (Mitchell) Page 9 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. AB 1432 (Mitchell) Page 10 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? ***************