BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 430 (Kehoe)
As Introduced February 16, 2011
Hearing date: May 3, 2011
Penal Code
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DOMESTIC VIOLENCE:
STRANGULATION AND SUFFOCATION
HISTORY
Source: Family Justice Center Alliance
Prior Legislation: None
Support: San Diego County District Attorney; Alameda County
District Attorney; Stanislaus County District Attorney;
Center for Community Solutions
Opposition:None known
NOTE: THIS ANALYSIS REFLECTS AMENDMENTS THE AUTHOR WILL SUBMIT
IN COMMITTEE.
KEY ISSUE
SHOULD THE "FELONY" DOMESTIC VIOLENCE STATUTE STATE THAT A
"TRAUMATIC CONDITION," AS DEFINED IN THAT LAW, CAN RESULT FROM
STRANGULATION OR SUFFOCATION, AS SPECIFIED?
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SB 430 (Kehoe)
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PURPOSE
The purpose of this bill is to state in statute that a
"traumatic condition," as that term is used in the "felony"
domestic violence statute, can result from strangulation or
suffocation, as specified.
Existing law provides that it is an alternate felony-misdemeanor
(wobbler) for any person to willfully inflict
corporal injury resulting in a traumatic condition upon any of
the following persons: spouse, former spouse, cohabitant, former
cohabitant, or the mother or father of the offender's child.
The offense is punishable by imprisonment in the state prison
for two, three or four years, or in the county jail for up to
one year, or a fine of up to $6,000, or both such fine and
imprisonment. (Pen. Code § 273.5, subd. (a).)
Existing law defines "traumatic condition" 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. (Pen. Code § 273.5, subd. (a).)
This bill , as it will be amended by the author in Committee,
will revise Penal Code section 273.5 to state that a traumatic
condition can include, but not be limited to, injury as a result
of strangulation or suffocation. These amendments will provide
that for purposes of this section, strangulation and
suffocation include impeding a person's normal breathing or
circulation of the blood by applying pressure on the throat or
neck.<1>
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
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<1> See Comment 3 for a mock-up of these amendments.
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SB 430 (Kehoe)
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over California's prisons has intensified.
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 Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill, as proposed to be amended by the author in Committee,
does not appear to aggravate the prison overcrowding crisis
described above.
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COMMENTS
1. Need for This Bill
According to the author:
Almost half of domestic violence homicide victims
experienced at least one episode of attempted
strangulation prior to a lethal or near-lethal violent
incident. Victims of prior attempted strangulation
are seven times more likely to become a homicide
victim. In order to combat this criminal behavior,
thirty states have passed special strangulation
statutes. By providing clear legislation to guide
judges and juries in addressing this extremely lethal
form of violence which occurs particularly often in
domestic violence cases, homicides will be reduced,
lives saved, and surviving victims will enter a more
informed and responsive criminal justice system.
SB 430 simply and explicitly states what is clearly
true -- that strangulation or suffocation can cause a
traumatic condition. SB 430 clarifies for jurors the
proper application of existing law in cases involving
the most dangerous kinds of domestic violence.
2. Background on the Domestic Violence Alternate
Felony-Misdemeanor in Penal Code
Section 273.5
As noted in the "Purpose" section above, this bill amends Penal
Code Section 273.5 for purposes of cases involving strangulation
or suffocation. Section 273.5 is a domestic violence crime
committed where the perpetrator willfully inflicts a corporal
injury on a spouse, cohabitant or other specified victim that
resulted in a traumatic condition. A traumatic condition is any
internal or external injury. A bruise or even skin redness can
constitute a traumatic condition. (People v. Beasley (2003) 105
Cal.App.4th 1078, 1085; People v. Wilkins (1993) 14 Cal.App.4th
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761, 771.)
Penal Code Section 273.5 is commonly described as "felony"
domestic violence, but it is actually an alternate
felony-misdemeanor. As such, the crime can be charged by the
prosecutor as a misdemeanor or a felony. When the crime is
charged as a felony, the court can deem it to be a misdemeanor
under specified circumstances and procedures.
It appears to be clear that a traumatic injury can be caused by
strangulation or suffocation. The prosecutor in such a case
would still need to prove that the defendant's act of strangling
or suffocating the victim did actually cause a traumatic
condition. It thus does not reduce the prosecutor's burden.
This bill is arguably equivalent to a pinpoint instruction
directing the jurors to consider evidence that the defendant
strangled or suffocated the victim in determining whether the
victim suffered a traumatic condition. Such instructions are
commonly given. The prosecution and the defendant are entitled
to such instructions on request when supported by the evidence.
(People v. Sears (1970) 2 Cal.3d 180 - defense instruction
directing jurors' attention to exculpatory evidence; People v.
Pensinger (1991) 52 Cal.3d 1210 - prosecution instruction
directing jurors' about defendant's destruction of evidence.)
The current Judicial Council jury instruction for Section 273.5,
CALCRIM 840 defines a traumatic injury: "A traumatic condition
is a wound or other bodily injury, whether minor or serious,
caused by the direct application of physical force." It clearly
appears that strangulation or suffocation can cause either a
serious or minor injury.
IN ORDER TO CLARIFY THE APPLICATION OF THE FELONY DOMESTIC
VIOLENCE STATUTE IN CASES WHERE THE DEFENDANT STRANGLED OR
SUFFOCATED THE VICTIM, SHOULD THE SECTION SPECIFICALLY PROVIDE
THAT A TRAUMATIC INJURY CAN BE CAUSED BY SUFFOCATION OR
STRANGULATION?
3. Author's Amendments
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The author will offer the following amendments in Committee:
1. Strike the current provisions of the bill;
2. Amend Penal Code section 273.5 as follows (changes
illustrated by underlining and strikeout):
Penal Code section 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, . . .
(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 strangulation 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.
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