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  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 




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          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 




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          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 




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          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 




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          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 




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          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 




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          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 













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          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 




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               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.
           
           

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