BILL NUMBER: AB 16 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member John A. Pérez
DECEMBER 3, 2012
An act to amend Section 273.5 of the Penal Code, relating to
domestic violence.
LEGISLATIVE COUNSEL'S DIGEST
AB 16, as introduced, John A. Pérez. Domestic violence: corporal
injury.
Under existing law, any person who willfully inflicts corporal
injury resulting in a traumatic condition upon a person who is his or
her spouse, former spouse, cohabitant, former cohabitant, or the
mother or father of his or her child, is guilty of a crime,
punishable as specified.
This bill would make those provisions apply to the infliction of
that type of injury on the fiancé or fiancée of that person or on
someone with whom the person has, or previously had, a dating or
engagement relationship. By expanding the scope of a crime, the 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.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 273.5 of the Penal Code, as amended by Section
16 of Chapter 867 of the Statutes of 2012, 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 upon a victim
described in subdivision (b) 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) Subdivision (a) shall apply if the victim is or was one or
more of the following:
(1) The offender's spouse or former spouse.
(2) The offender's cohabitant or former cohabitant.
(3) The offender's fiancé or fiancée, or someone with whom the
offender has, or previously had, a dating or engagement relationship.
(4) The mother or father of the offender's child.
(b)
( c) 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)
( d) 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.
(d)
( e) 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)
( f) (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)
( g) 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)
( h) 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) (f)
, 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) (f) , 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) (f) , 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)
(i) 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) (A) 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
(B) 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)
( j) 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.
(j)
( k) If a peace officer makes an arrest for
a violation of this section, the peace officer is not required to
inform the victim of his or her right to make a citizen's arrest
pursuant to subdivision (b) of Section 836.
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.