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  








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            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.








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             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  








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            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  








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               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  








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            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  








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            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.








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          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  








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            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  








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            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  








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            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 
           








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          California Public Defenders Association
           
          Analysis Prepared by :    Gabriel Caswell / PUB. S. / (916)  
          319-3744