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 May 25, 2012 Hearing date: June 12, 2012 Penal Code (URGENCY) MK:dl VOTE ONLY 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:None known Assembly Floor Vote: Ayes 67 - Noes 3 KEY ISSUES SHOULD IT BE A MISDEMEANOR FOR ANY PARENT OR GUARDIAN HAVING THE CARE, CUSTODY, OR CONTROL OF A CHILD UNDER 14 YEARS OF AGE WHO KNOWS OR SHOULD HAVE KNOWN THAT THE CHILD HAS DIED TO FAIL TO (More) AB 1432 (Mitchell) Page 2 NOTIFY A PUBLIC AGENCY WITHIN 24 HOURS OF THE TIME THAT THE PARENT OR GUARDIAN KNEW OR SHOULD HAVE KNOWN THAT THE CHILD HAS DIED? SHOULD IT BE A MISDEMEANOR FOR ANY PARENT OR GUARDIAN HAVING THE CARE CUSTODY OR CONTROL OF A CHILD UNDER 14 YEARS OF AGE TO NOTIFY LAW ENFORCEMENT WITHIN 24 HOURS OF THE TIME THAT THE PARENT OR GUARDIAN KNOWS OR SHOULD HAVE KNOWN THAT THE CHILD IS A MISSING PERSON, AS DEFINED, AND THAT THERE IS EVIDENCE THAT THE CHILD IS A PERSON AT RISK, AS DEFINED? 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 under specified circumstances. 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).) 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 (More) AB 1432 (Mitchell) Page 3 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, 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 (More) AB 1432 (Mitchell) Page 4 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.) Existing law defines a "Public safety agency," as a functional division of a public agency which provides firefighting, police, medical, or other emergency services. (Government Code § 53102.) Existing law provides that "missing person" includes, but is not limited to, a child who has been taken, detained, concealed, enticed away, or retained by a parent in violation of Chapter 4 (commencing with Section 277) of Title 9 of Part 1. It also includes any child who is missing voluntarily or involuntarily, or under circumstances not conforming to his or her ordinary habits or behavior and who may be in need of assistance. (Penal Code § 14213(a).) Existing law provides that "evidence that the person is at risk" includes, but is not limited to, evidence or indications of any of the following: The person missing is the victim of a crime or foul play. The person missing is in need of medical attention. The person missing has no pattern of running away or disappearing. The person missing may be the victim of parental abduction. The person missing is mentally impaired. (Penal Code § 14213 (b).) This bill provides that any parent or guardian having the care, custody or control of a child under 14 years of age who knows or should have known that the child has died shall notify a public agency, as defined in Government Code Section 53102 within 24 hours of the time the parent or guardian knew or should have known that the child has died. However, this shall not apply when the child is otherwise under the immediate care of a (More) AB 1432 (Mitchell) Page 5 physician at the time of death, or if a public agency, a coroner, or a medical examiner is otherwise aware of the death. This bill provides that any parent or guardian having the care, custody or control of a child under 14 years of age shall notify law enforcement within 24 hours of the time that the parent or guardian knows or should have known that the child is a missing person and there is evidence that the child is a person at risk, as those terms are defined in Penal Code Section 14213. However, this shall not apply if law enforcement is otherwise aware of the missing person. This bill provides that a violation of either of the above is a misdemeanor punishable by imprisonment in the county jail for not more than one year or by a fine not exceeding $1,000 or by both that 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 "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 (More) AB 1432 (Mitchell) Page 6 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 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 (More) AB 1432 (Mitchell) Page 7 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 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) As it has been amended since the May 8th hearing in this Committee, this bill creates a misdemeanor for a parent or guardian to fail to notify a public agency within 24 hours of the death of a child under the age of 14. The definition of public agency includes calling a firefighting agency or hospital as well as the police so that a person who discovers that his or her child is dead will not be violating the law if he or she calls medical personnel or 911 before thinking to call the police. This section will also not apply if the child is already in a doctor's care or a public safety agency, medical examiner or coroner has already been notified of the death. The penalty for violating this new section would be a misdemeanor with up to one year in county jail and/or up to a $1,000 fine. These amendments are intended to address concerns raised in Committee that because of some of the vague terms in the prior version of the bill, a person could mistakenly violate this section. They are also intended to address concerns raised that the first instinct may not be to call the police but to call a hospital or paramedic if a person were to find a child injured. Finally, they are intended to address the concern that law enforcement would receive too many calls by eliminating the need to call when the child is otherwise in a doctor's care when he or she dies. 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 (More) AB 1432 (Mitchell) Page 9 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. 3. Notification of Disappearance As amended since it was heard on May 8th in this Committee, 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 time that a parent or guardian knows or should have known the child is missing and there is evidence that the person is at risk. The bill uses the existing definitions for "missing person" and "person at risk" that law enforcement uses when taking a report on a missing person. This section would not apply if law enforcement is already aware that the child is a missing person. The penalty for violating this new section would be a misdemeanor with up to one year in county jail and/or up to a $1,000 fine. These amendments are intended to address concerns raised in Committee about the vagueness of some of the terms in the earlier version of the bill. ***************