BILL ANALYSIS Ó AB 16 Page 1 Date of Hearing: March 12, 2013 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 16 (John A. Pérez) - As Introduced: December 3, 2012 SUMMARY : Expands the categories of relationships that constitute felony domestic violence resulting in a traumatic condition to include former fiancés and fiancées, as well as current and former dating relationships. EXISTING LAW : 1)Provides 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 $6,000 or by both that fine and imprisonment. [Penal Code Section 273.5(a).] 2)States that 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. [Penal Code Section 273.5(b).] 3)Defines a "traumatic condition" 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. [Penal Code Section 273.5(c).] 4)Provides that 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 specified provisions of the California Family Code. [Penal Code Section 273.5(d).] 5)Provides that any person convicted of violating this section for acts occurring within seven years of a specified related AB 16 Page 2 previous conviction 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 $10,000. [Penal Code Section 273.5(e)(1).] 6)States that any person convicted of a violation of this section for acts occurring within seven years of a previous conviction of this section 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 $10,000, or by both that imprisonment and fine. [Penal Code Section 273.5(e)(2).] 7)Specifies probation conditions related to domestic violence counseling. The court shall impose one of the following conditions of probation [Penal Code Section 273.5(g)]: a) If the defendant has suffered one prior conviction within the previous seven years for a violation of this section, it shall be a condition thereof, in addition to specified provisions, that he or she be imprisoned in a county jail for not less than 15 days. b) If the defendant has suffered two or more prior convictions within the previous seven years for a violation of any offense specified in this section, it shall be a condition of probation, in addition to the specified provisions, that he or she be imprisoned in a county jail for not less than 60 days. c) 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. 8)States that if probation is granted upon conviction of a violation of felony domestic violence, the conditions of probation may include, consistent with the terms of specified probation imposed, in lieu of a fine, one or both of the following requirements [Penal Code Section 273.5(h)]: a) That the defendant make payments to a battered women's shelter, up to a maximum of $5,000, pursuant to Penal Code Section 1203.097. AB 16 Page 3 b) 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. c) 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 specified Penal Code provisions, 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. 9)States that upon conviction of this section, 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. [Penal Code Section 273.5(i).] 10)States when a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two $2,000, or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation AB 16 Page 4 is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as defined in Penal Code Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service. [Penal Code Section 243(e)(1).] 11)States that upon conviction of a violation of this subdivision, if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements [Penal Code Section 243(e)(2)]: a) That the defendant make payments to a battered women's shelter, up to a maximum of $5,000. b) 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. c) 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 Penal Code Section 1203.04, as operative on or before August 2, 1995, or Penal Code 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. d) Upon conviction of a violation of this subdivision, if probation is granted or the execution or imposition of the sentence is suspended and the person has been previously AB 16 Page 5 convicted of a domestic violence violation, the person shall be imprisoned for not less than 48 hours in addition to specified conditions. However, the court, upon a showing of good cause, may elect not to impose the mandatory minimum imprisonment as required by this subdivision and may, under these circumstances, grant probation or order the suspension of the execution or imposition of the sentence. e) The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence so as to display society's condemnation for these crimes of violence upon victims with whom a close relationship has been formed. FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "AB 16 eliminates an inconsistency in domestic violence laws by amending Penal Code Section 273.5 to expand the scope of felony domestic violence victims to conform to all other domestic violence laws. Under current law, the list of individuals that qualify to be charged with misdemeanor domestic violence is significantly broader that the individuals that qualify to be charged with felony domestic violence. Specifically, this bill adds to the list of persons who can be charged with felony domestic violence a defendant who is a fiancé or fiancée, or a person with whom he or she currently has, or previously had, a dating or engagement relationship. "Because of this loophole, a person who commits a felony domestic violence on his or her fiancé or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship is not charged and sentenced appropriately. For example, if probation is granted, the conditions of probation may include: (1) payments to a battered woman's shelter, up to a maximum of five thousand dollars ($5,000), pursuant to Penal Code Section 1203.097; reimbursements to the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense; enhanced penalties for multiple convicts within a 7 year period; and AB 16 Page 6 the requirement that an individual participate in an one-year batterers treatment program. "State law requires that domestic violence laws track annual deaths when the deceased was a current or former spouse, current or former fiancé or fiancée, or a current or former dating partner (Penal Code Section 11163.6). This discrepancy in the felony domestic violence statute impacts the reporting domestic violence cases. By not including the same relationships in Penal Code Section 273.5 that are used in annual reporting, the state relies on inaccurate domestic violence statistics. "There is no justifiable reason to exclude these offenders from the felony domestic violence law when they are included in the misdemeanor domestic violence law. The inclusion of fiancés or fiancées, and current or former dating and engagement partners in Penal Code Section 273.5 will make the felony statute consistent with all other domestic violence laws. It will enable all offenders to be charged with the appropriate crimes and sentenced to the appropriate punishments, and it will allow for more accurate statistical reporting of domestic violence occurrences." 2)Background : According to background submitted by the author, "Under existing law, any person who willfully inflicts corporal injury resulting in a traumatic condition upon a person who is his/her spouse, former spouse, cohabitant, former cohabitant, or the other parent of his/her child, is guilty of a felony domestic violence. "California's misdemeanor domestic violence includes the same list of relationships but also includes a fiancé or fiancée, and persons with whom the defendant has, or previously had, a dating or engagement relationship. "This inconsistency with respect to which relationship qualifies for domestic violence creates a serious problem. Because of this loophole, a defendant who commits a felony battery on his/her fiancé or fiancée, or a person with whom the defendant has or has previously had a dating or engagement relationship are not subject to the same punishment and treatment requirements that other domestic abusers are subject to upon conviction. For example, if probation is granted, the conditions of probation may include: that the defendant make AB 16 Page 7 payments to a battered woman's shelter, up to a maximum of five thousand dollars ($5,000), pursuant to Penal Code Section 1203.097; 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; enhanced penalties for multiple convictions within a 7 year period; and that the defendant participate in a one-year batterers treatment program." 3)Felony Battery vs. Domestic Violence : California has created an elaborate scheme for dealing with the problem of domestic violence. Individuals who are arrested, charged, or convicted of domestic violence-related offenses have a variety of conditions mandated and services available which are not in place for simple assault and battery offenses. Individuals arrested and charged with domestic violence offenses may be required to appear in court at times when battery defendants are not and face stiffer rules related to protective orders. Probation conditions include an extensive counseling program for the purpose of deprogramming violent conduct as it relates to domestic scenarios. Additionally, criminal penalties for recidivist conduct are more severe. Finally, additional counseling and victim advocacy services are available for victims of domestic violence. 4)Inconsistent Categorization of Victims in Domestic Violence Cases and Domestic Battery Cases : Current law treats two categories of offenders with differing provisions. Misdemeanor domestic battery includes a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship. Felony domestic violence includes a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child. Proponents argue the differences in these two lists create a discrepancy in current law with respect to the protection of victims. Other relationship categories included in the misdemeanor statute are similarly excluded from the felony provisions. Proponents argue that this bill would correct this inconsistency by creating an increased repeat offense penalty under the broader misdemeanor battery statute. AB 16 Page 8 Legislation has been previously introduced in prior sessions to expand the category of persons to whom the felony domestic violence statute would apply. In 1998, AB 45 (Murray), of the 1997-98 Legislative Session, would have expanded the statute to include non-cohabiting former spouses, a fiancé, fiancée, or a person with whom the defendant currently has, or has previously had, a dating relationship. This provision was amended out of AB 45 before its passage, although this Committee passed AB 45 to expand the felony domestic violence statute to include former spouse and person with whom the defendant had cohabited. During the 1995-96 Legislative Session, AB 720 (Speier) proposed a similar expansion and was held on the Assembly Appropriations Committee's Suspense File. 5)Potential for Prison Overcrowding Due to Recidivist Provisions of Domestic Violence Offenses : Felony assault under Penal Code Section 245 and felony domestic violence both carry punishments of up to four years in prison. However, felony domestic violence have recidivism provisions which increase punishments for up to five years in state prison if the defendant has a one of several specified prior offenses. The prospective prison overcrowding in this scenario is not as significant as in a simple enhancement of sentences. In this case, overcrowded is only implicated when a defendant has a one of the specified prior offenses at the time he or she is convicted of the new felony domestic violence offense. When the offense is currently punishable by a substantial prison term, any proposed increase in that prison term causes concern for additional prison overcrowding. As California's prison crisis worsens, close attention should be paid to legislation increasing prison overcrowding. The California Policy Research Center (CPRC) recently issued a report on the status of California's prisons. The report stated, "California has the largest prison population of any state in the nation, with more than 171,000 inmates in 33 adult prisons, and the state's annual correctional spending, including jails and probation, amounts to $8.92 billion. Despite the high cost of corrections, fewer California prisoners participate in relevant treatment programs than comparable states, and its inmate-to-officer ratio is considerably higher. While the nation's prisons average one correctional officer to every 4.5 inmates, the average California officer is responsible for 6.5 AB 16 Page 9 inmates. Although officer salaries are higher than average, their ranks are spread dangerously thin and there is a severe vacancy rate." [Petersilia, Understanding California Corrections, California Policy Research Center (May 2006).] California's prison population will likely exceed 180,000 by 2010. According to the Little Hoover Commission, "Lawsuits filed in three federal courts alleging that the current level of overcrowding constitutes cruel and unusual punishment ask that the courts appoint a panel of federal judges to manage California's prison population. United States District Judge Lawrence Karlton, the first judge to hear the motion, gave the State until June 2007 to show progress in solving the overpopulation crisis. Judge Karlton clearly would prefer not to manage California's prison population. At a December 2006 hearing, Judge Karlton told lawyers representing the Schwarzenegger administration that he is not inclined 'to spend forever running the state prison system.' However, he also warned the attorneys, 'You tell your client June 4 may be the end of the line. It may really be the end of the line.' "Despite the rhetoric, 30 years of 'tough on crime' politics has not made the state safer. Quite the opposite: today thousands of hardened, violent criminals are released without regard to the danger they present to an unsuspecting public. Years of political posturing have taken a good idea - determinate sentencing - and warped it beyond recognition with a series of laws passed with no thought to their cumulative impact. And these laws stripped away incentives for offenders to change or improve themselves while incarcerated. "Inmates, who are willing to improve their education, learn a job skill or kick a drug habit find that programs are few and far between, a result of budget choices and overcrowding. Consequently, offenders are released into California communities with the criminal tendencies and addictions that first led to their incarceration. They are ill-prepared to do more than commit new crimes and create new victims." [Little Hoover Commission Report, Solving California's Corrections Crisis: Time is Running Out (2007), pg. 1, 2.] On February 9, 2009, a United States District Court three-judge panel issued a tentative ruling mandating the State of California to resolve chronic prison overcrowding. In the AB 16 Page 10 tentative ruling, the judges state "[t]he evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions." With prisons housing twice the population they were built to accommodate, the prospect of early release of inmates appears imminent unless the Legislature relieves the current prison population. Under California's criminal justice realignment in 2011, offenses committed under Penal Code Section 273.5 are excluded from inclusion. 6)Argument in Support : According to the Los Angeles County Sheriff , "Under current law, Penal Code Section 273.5 provides for victims of felony domestic violence. The victim list includes spouse, former spouse, cohabitant, former cohabitant, or someone with whom they had a child. "Penal Code Section 243(e)(1) is the misdemeanor domestic violence section and provides for all the above mentioned victim classes but also includes fiancé or fiancée, or with a person who the victim has or previously had a dating or engagement relationship. This bill seeks to include these victim classes in the felony domestic violence section 273.5 to bring both sections into parity regarding these victim classes. "Currently, if the suspect is a fiancé or fiancée, or a person who the victim has or previously had a dating or engagement relationship, we cannot charge the suspect with the felony domestic violence section 273.5 even if there exists corporal injury that results in a traumatic condition. Currently, we must charge the suspect with the felony assault Section 245(a)(1) of the Penal Code. Penal Code Section 245(a)(1) and Section 273.5 carry the same term of punishment, two, three, or four years in state prison. We would essentially be swapping one felony for another, which would make this essentially a cost neutral bill. "By charging a suspect with felony domestic violence (273.5), there are better provisions and benefits such as a clear record being created of domestic violence to be use in consideration for future domestic violence incidents, domestic violence and anger management classes, and it would provide the victim with the ability to seek a ten year restraining AB 16 Page 11 order. "The scourge of domestic violence is prevalent in our communities. It is the absolute duty of law enforcement to protect victims of this heinous crime. It makes sense to include these victim classes in the felony domestic violence section (273.5) and would create consistency between the misdemeanor section [243(e)(1)] and the felony section (273.5)." 7)Prior Legislation : a) AB 545 (John A. Pérez) of the 2011-2012 Legislative Session, would have expanded the categories of relationships that constitute felony domestic violence resulting in a traumatic condition to include former fiancés/fiancées, as well as current and former dating relationships. AB 545 was never heard in Senate Public Safety Committee. b) AB 1360 (John A. Perez), of the 2009-10 Legislative Session, would have expanded the categories of relationships that constitute felony domestic violence resulting in a traumatic condition to include former fiancés/fiancées, as well as current and former dating relationships. AB 1360 was never heard by the Senate Public Safety Committee. REGISTERED SUPPORT / OPPOSITION : Support American Federation of State, County and Municipal Employees California Conference of Bar Associations California District Attorneys Association California Partnership to End Domestic Violence California Police Chiefs Association California State Sheriffs' Association Crime Victims Action Alliance Los Angeles County Sheriff Los Angeles District Attorney Women Lawyers Association of Los Angeles Opposition AB 16 Page 12 California Public Defenders Association Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) 319-3744