BILL NUMBER: SB 430	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 10, 2011

INTRODUCED BY   Senator Kehoe
   (Coauthors: Assembly Members Atkins and Fletcher)

                        FEBRUARY 16, 2011

   An act to  add Section 249 to   amend Section
273.5 of  the Penal Code, relating to strangulation.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 430, as amended, Kehoe. Strangulation.
   Existing law establishes various crimes against the person, such
as assault and battery, and provides that any person who willfully
inflicts upon a person who is his or her spouse, former spouse,
cohabitant, former cohabitant, or the mother or father of his or her
child, corporal injury resulting in a traumatic condition, is guilty
of a felony punishable by imprisonment in the state prison for 2, 3,
or 4 years, or  as a misdemeanor with specified penalties
  by incarceration in a county jail not exceeding one
year, or by a fine, or by both imprisonment and a fine, as specified.
Existing law defines "traumatic condition" for these purposes to
mean a condition of the body, such as a wound or external or internal
injury, whether of a minor or serious nature, caused by a physical
force.  
   This bill would specify that "traumatic injury" includes injury as
a result of strangulation or suffocation and defines the terms
"strangulation" and "suffocation" for those purposes.  
   This bill would provide that any person who willfully and
unlawfully strangles, suffocates, or attempts to suffocate a person
is guilty of a felony punishable by incarceration in the state prison
for a term of 2, 3, or 4 years. The bill would provide that if the
defendant and victim are in a specified relationship, the defendant
would be subject to an enhancement of an additional 2 years in state
prison. The bill would provide that evidence of either an intent to
kill or injure the victim or visible injuries is not required to
convict a defendant of violating these provisions.  

   By creating a new crime, this bill would impose a state-mandated
local program.  
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that no reimbursement is required by this
act for a specified reason. 
   Vote: majority. Appropriation: no. Fiscal committee:  yes
  no  . State-mandated local program:  yes
  no  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 273.5 of the   Penal
Code   is amended to read: 
   273.5.  (a) Any person who willfully inflicts upon a person who is
his or her spouse, former spouse, cohabitant, former cohabitant, or
the mother or father of his or her child, corporal injury resulting
in a traumatic condition, is guilty of a felony, and upon conviction
thereof shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail for not more than one
year, or by a fine of up to six thousand dollars ($6,000) or by both
that fine and imprisonment.
   (b) Holding oneself out to be the husband or wife of the person
with whom one is cohabiting is not necessary to constitute
cohabitation as the term is used in this section.
   (c) As used in this section, "traumatic condition" means a
condition of the body, such as a wound  ,  or external or
internal injury,  including, but not limited to, injury as a
result of strangulat   ion or suffocation,  whether of
a minor or serious nature, caused by a physical force.  For
purposes of this section, "strangulation" and "suffocation" include
impeding the normal breathing or circulation of the blood of a person
by applying pressure on the throat or neck. 
   (d) For the purpose of this section, a person shall be considered
the father or mother of another person's child if the alleged male
parent is presumed the natural father under Sections 7611 and 7612 of
the Family Code.
   (e) (1) Any person convicted of violating this section for acts
occurring within seven years of a previous conviction under
subdivision (a), or subdivision (d) of Section 243, or Section 243.4,
244, 244.5, or 245, shall be punished by imprisonment in a county
jail for not more than one year, or by imprisonment in the state
prison for two, four, or five years, or by both imprisonment and a
fine of up to ten thousand dollars ($10,000).
   (2) Any person convicted of a violation of this section for acts
occurring within seven years of a previous conviction under
subdivision (e) of Section 243 shall be punished by imprisonment in
the state prison for two, three, or four years, or in a county jail
for not more than one year, or by a fine of up to ten thousand
dollars ($10,000), or by both that imprisonment and fine.
   (f) If probation is granted to any person convicted under
subdivision (a), the court shall impose probation consistent with the
provisions of Section 1203.097.
   (g) If probation is granted, or the execution or imposition of a
sentence is suspended, for any defendant convicted under subdivision
(a) who has been convicted of any prior offense specified in
subdivision (e), the court shall impose one of the following
conditions of probation:
   (1) If the defendant has suffered one prior conviction within the
previous seven years for a violation of any offense specified in
subdivision (e), it shall be a condition thereof, in addition to the
provisions contained in Section 1203.097, that he or she be
imprisoned in a county jail for not less than 15 days.
   (2) If the defendant has suffered two or more prior convictions
within the previous seven years for a violation of any offense
specified in subdivision (e), it shall be a condition of probation,
in addition to the provisions contained in Section 1203.097, that he
or she be imprisoned in a county jail for not less than 60 days.
   (3) The court, upon a showing of good cause, may find that the
mandatory imprisonment required by this subdivision shall not be
imposed and shall state on the record its reasons for finding good
cause.
   (h) If probation is granted upon conviction of a violation of
subdivision (a), the conditions of probation may include, consistent
with the terms of probation imposed pursuant to Section 1203.097, in
lieu of a fine, one or both of the following requirements:
   (1) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000), pursuant
to Section 1203.097.
   (2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
   For any order to pay a fine, make payments to a battered women's
shelter, or pay restitution as a condition of probation under this
subdivision, the court shall make a determination of the defendant's
ability to pay. In no event shall any order to make payments to a
battered women's shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution to
the injured spouse, required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents, required by this
section, until all separate property of the offending spouse is
exhausted.
   (i) Upon conviction under subdivision (a), the sentencing court
shall also consider issuing an order restraining the defendant from
any contact with the victim, which may be valid for up to 10 years,
as determined by the court. It is the intent of the Legislature that
the length of any restraining order be based upon the seriousness of
the facts before the court, the probability of future violations, and
the safety of the victim and his or her immediate family. This
protective order may be issued by the court whether the defendant is
sentenced to state prison, county jail, or if imposition of sentence
is suspended and the defendant is placed on probation. 
  SECTION 1.    Section 249 is added to the Penal
Code, to read:
   249.  (a) Any person who willfully and unlawfully strangles,
suffocates, or attempts to suffocate a person is guilty of a felony
punishable by incarceration in the state prison for a term of two,
three, or four years.
   (b) For a defendant to be convicted of a violation of subdivision
(a), evidence of either of the following is not required:
   (1) An intent to kill or injure the victim.
   (2) Visible injuries.
   (c) If the defendant and the victim are in a relationship
described in subdivision (b) of Section 13700, the defendant shall be
subject to an enhanced penalty of two additional years imprisonment
in the state prison.
   (d) (1) "Strangle" for purposes of this section means to
intentionally, knowingly, or recklessly impede the normal breathing
or circulation of the blood of a person by applying pressure on the
throat or neck.
   (2) "Suffocate" for purposes of this section means to
intentionally, knowingly, or recklessly impede the normal breathing
of a person.
   (e) Nothing in this section shall preclude prosecution of a person
under any other provision of this code.  
  SEC. 2.    No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.