BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  AB 1593|
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                                 THIRD READING


          Bill No:  AB 1593
          Author:   Ma (D)
          Amended:  3/29/12 in Assembly
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  4-2, 6/12/12
          AYES:  Hancock, Liu, Price, Steinberg
          NOES:  Anderson, Harman
          NO VOTE RECORDED:  Calderon

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           ASSEMBLY FLOOR  :  51-20, 5/10/12 - See last page for vote


           SUBJECT  :    Parole:  intimate partner battering

           SOURCE  :     Author


           DIGEST  :    This bill requires the Board of Parole Hearings 
          (BPH), when reviewing a prisoners suitability for parole, 
          to give great weight to any information or evidence that, 
          at the time of the commission of the crime, the prisoner 
          had experienced intimate partner battering and provide that 
          they cannot use the fact that the prisoner brought in the 
          evidence to find that a prisoner lacks insight to his or 
          her crime.

           ANALYSIS  :    Existing law provides that at all hearings for 
          the purpose of reviewing a prisoner's parole suitability, 
          or the setting, postponing, or rescinding of parole dates, 
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          with the exception of en banc review of tie votes, the 
          following shall apply:

           At least 10 days prior to any hearing by BPH, the 
            prisoner shall be permitted to review his or her file 
            which will be examined by the BPH and shall have the 
            opportunity to enter a written response to any material 
            contained in the file.

           The prisoner shall be permitted to be present, to ask and 
            answer questions, and to speak on his or her own behalf.  
            Neither the prisoner nor the attorney for the prisoner 
            shall be entitled to ask questions of any person 
            appearing at the hearing.

           Unless legal counsel is required by some other provision 
            of law, a person designated by the Department of 
            Corrections and Rehabilitation shall be present to ensure 
            that all facts relevant to the decision be presented,  
            including, if necessary, contradictory assertions as to 
            matters of fact that have not been resolved by 
            departmental or other procedures.

           The prisoner and any victim or next of kin shall be 
            permitted to request and receive a stenographic record of 
            all proceedings.

           If the hearing is for the purpose of postponing or 
            rescinding of parole dates, the prisoner shall have right 
            to have witnesses called, unless the person conducting 
            the hearing has specific reasons to deny this request, 
            and the prisoner shall have the right to question all 
            witnesses.

           The BPH shall set a date to reconsider whether an inmate 
            should be released on parole that ensures a meaningful 
            consideration of whether the inmate is suitable for 
            release on parole.  (Penal Code (PEN) Section 3041.5(a))

          Existing law requires at any hearing for the purpose of 
          setting, postponing, or rescinding a parole release date of 
          a prisoner under a life sentence, the prisoner shall be 
          entitled to be represented by counsel.  BPH shall provide 
          by rule for the invitation of the prosecutor of the county 







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          from which the prisoner was committed, or his 
          representative, to represent the interests of the people at 
          the hearing.  BPH shall notify the prosecutor and the 
          Attorney General at least 30 days prior to the date of the 
          hearing.  (PEN Section 3041.4)

          Existing law states that the hearing shall be conducted as 
          a de novo hearing.  Findings made and conclusions reached 
          in a prior parole hearing shall be considered in but shall 
          not be deemed to be binding upon subsequent parole hearings 
          for an inmate, but shall be subject to reconsideration 
          based upon changed facts and circumstances.  When 
          conducting a hearing, the BPH shall admit the prior 
          recorded or memorialized testimony or statement of a victim 
          or witness, upon request of the victim or if the victim or 
          witness has died or become unavailable.  At each hearing 
          the BPH shall determine the appropriate action to be taken 
          based on the criteria set forth in paragraph (3) of 
          subdivision (a) of Section 3041.  (PEN Section 3041.5(c))

          Existing law states that BPH, in deciding whether to 
          release the person on parole, shall consider the entire and 
          uninterrupted statements of the victim or victims, next of 
          kin, immediate family members of the victim, and the 
          designated representatives of the victim or next of kin, if 
          applicable, made pursuant to this section and shall include 
          in its report a statement whether the person would pose a 
          threat to public safety if released on parole.  (PEN 
          Section 3043(d))

          Existing law requires BPH to record parole hearings and 
          transcribe recordings of those hearings within 30 days of 
          any hearing.  Those transcripts, including the transcripts 
          of all prior hearings, shall be filed and maintained in the 
          office of the Board of Prison Terms and shall be made 
          available to the public no later than 30 days from the date 
          of the hearing.  No prisoner shall actually be released on 
          parole prior to 60 days from the date of the hearing.  At 
          any hearing, the presiding hearing officer shall state 
          his/her findings and supporting reasons on the record.  
          (PEN Section 3042(b) and (c))

          Existing law states that in a criminal action, expert 
          testimony is admissible by either the prosecution or the 







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          defense regarding intimate partner battering and its 
          effects, including the nature and effect of physical, 
          emotional, or mental abuse on the beliefs, perceptions, or 
          behavior of victims of domestic violence, except when 
          offered against a criminal defendant to prove the 
          occurrence of the act or acts of abuse which form the basis 
          of the criminal charge.  (Evidence Code Section 1107(a))

          Existing law authorizes BPH to report to the Governor, from 
          time to time, the names of any and all persons imprisoned 
          in any state prison who, in its judgment, ought to have a 
          commutation of sentence or be pardoned and set at liberty 
          on account of good conduct, or unusual term of sentence, or 
          any other cause, including evidence of intimate partner 
          battering and its effects. Defines "intimate partner 
          battering and its effects" to include evidence of the 
          nature and effects of physical,  emotional, or mental abuse 
          upon the beliefs, perceptions, or behavior of victims of 
          domestic violence where it appears the criminal behavior 
          was the result of that victimization.  (PEN Section 
          4801(a))

          This bill provides that BPH shall give great weight to any 
          information or evidence that at the time of the commission 
          of the crime, the prisoner had experienced intimate partner 
          battering, but was convicted of an offence that occurred 
          prior to August 29, 1996.

          Existing law requires BPH, in reviewing a prisoner's 
          suitability for parole to consider any information or 
          evidence that, at the time of the commission of the crime, 
          the prisoner had experienced intimate partner battering, 
          but was convicted of the offense prior to the enactment of 
          Evidence Code Section 1107.  The BPH shall state on the 
          record the information or evidence that it considered 
          pursuant to this subdivision, and the reasons for the 
          parole decision.  The BPH shall annually report to the 
          Legislature and the Governor on the cases the BPH 
          considered pursuant to this subdivision during the previous 
          year, including the BPH's decision and the findings of its 
          investigations of these cases.  (PEN Section 4801(b)(1))

          This bill mandates BPH to include in its annual report to 
          the Legislature and the Governor specific and detailed 







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          findings of its investigations of cases where a prisoner 
          had experienced intimate partner battering at the time of 
          the offense.

          This bill states that the fact that a prisoner has 
          presented evidence of intimate partner battering cannot be 
          used to support a finding that the prisoner lacks insight 
          into his/her crime and its causes.

           Prior Legislation

           AB 220 (Assembly Public Safety Committee), Chapter 215, 
          Statutes of 2005
          SB 499 (Burton), Chapter 652, Statutes of 2000
          AB 231 (Kuehl), Chapter 905, Statutes of 1995
          AB 3436 (Friedman), Chapter 1138, Statutes of 1992

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  No

           SUPPORT  :   (Verified  6/25/12)

          California Attorneys for Criminal Justice
          California Catholic Conference, Inc.
          California Habeas Project
          California Public Defenders Association
          Legal Services for Prisoners with Children

           OPPOSITION  :    (Verified  6/25/12)

          California District Attorneys Association

           ARGUMENTS IN SUPPORT  :    According to the author:

            Under current law, the Board of Prison Terms, also known 
            as the Parole Board, has the authority to consider IPB as 
            a factor in the suitability of the prisoner's parole.  
            Under SB 499 (2000), the Board is also required to make a 
            finding in the record on the facts considered by the 
            Parole Board. The Parole Board is then required to report 
            annually to the Legislature and the Governor on the 
            parole decisions involving IPB.  However, the Parole 
            Board's report does not offer concrete details of how the 
            Parole Board evaluates the IPB claims.







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            Currently, when a domestic violence victim is questioned 
            by the parole board on the crimes they committed, the 
            victim often discusses the history of their victimization 
            and their prior abuse.  The Parole Board often considers 
            this acknowledgement of victimization as "lack of 
            insight" and denies their parole. 

            In 2001, California enacted SB 799 to allow domestic 
            violence victims to file habeas corpus claims for crimes 
            relating to IPB before January 1992. However, the 
            California Supreme Court did not hear an IPB case until 
            August 29, 1996, in People v. Humphrey.  Later the 
            Legislature changed Penal Code Section 1473.5 to reflect 
            the date of this decision.  However, Penal Code Section 
            4801 referring to IPB in Parole Board hearings has not 
            been amended to reflect the date of the Court's decision. 


            AB 1593 requires that the parole board give great weight 
            to any information or evidence that proves the prisoner 
            experienced intimate partner battering (IPB) and its 
            effects at the time the crime was committed. 

            AB 1593 ensures the date the crime took place is 
            consistent with date established in current IPB statute 
            (Penal Code 1473.5). 
            AB 1593 will also prohibit the parole board commissioners 
            from using "lack of insight" as evidence to deny 
            suitability in cases involving IPB.

           ARGUMENTS IN OPPOSITION  :    The California District 
          Attorneys Association states:
           
             Under existing law, BPH is required to consider such 
            information or evidence regarding IPB, but no bias toward 
            the impact of such is expressed.  Additionally, existing 
            law (Penal Code section 1473.5) provides a special writ 
            of habeas corpus that may be prosecuted on the basis that 
            expert testimony relating to IPB and its effects was not 
            received in evidence at the trial court proceedings.  In 
            this regard, we feel that existing law adequately 
            addresses the impacts of IPB.








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            This bill effectively gives a person who has previously 
            filed an unsuccessful writ of habeas corpus based on IPB 
            the ability to use the same evidence to attempt gain 
            release from incarceration a second time.  We have not 
            heard a convincing reason why such evidence should be 
            given more consideration than the statute currently 
            provides at a parole suitability hearing when it did not 
            result in habeas relief under existing law.  Further, in 
            this particular case, we feel it is inappropriate to 
            direct BPH operations legislatively by expressing a bias 
            toward evidence of IPB, especially if such evidence was 
            unconvincing to a court in a habeas proceeding.


           ASSEMBLY FLOOR  :  51-20, 5/10/12
          AYES:  Alejo, Allen, Ammiano, Atkins, Beall, Block, 
            Bonilla, Bradford, Brownley, Buchanan, Butler, Charles 
            Calderon, Campos, Carter, Cedillo, Chesbro, Davis, 
            Dickinson, Eng, Feuer, Fong, Fuentes, Galgiani, Gatto, 
            Gordon, Halderman, Hall, Hayashi, Roger Hernández, Hill, 
            Huber, Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, 
            Mendoza, Mitchell, Monning, Nestande, Pan, Perea, 
            Portantino, Skinner, Solorio, Swanson, Torres, 
            Wieckowski, Williams, Yamada, John A. Pérez
          NOES:  Achadjian, Conway, Donnelly, Beth Gaines, Garrick, 
            Grove, Hagman, Harkey, Jones, Knight, Logue, Mansoor, 
            Miller, Morrell, Nielsen, Norby, Silva, Smyth, Valadao, 
            Wagner
          NO VOTE RECORDED:  Bill Berryhill, Blumenfield, Cook, 
            Fletcher, Furutani, Gorell, Jeffries, Olsen, V. Manuel 
            Pérez


          RJG:m  6/25/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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