BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 6 AB 16 (John A. Pérez) As Amended June 14, 2013 Hearing date: June 25, 2013 Penal Code AA:mc DOMESTIC VIOLENCE HISTORY Source: Author Prior Legislation: AB 545 (John A. Pérez) - 2011-2012, held in Senate Public Safety (ROCA) AB 1360 (John A. Pérez) - 2009-2010, held in Senate Public Safety (ROCA) AB 45 (Murray) - Ch. 847, Stats. 1997 Support: 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; California Communities United Institute; City of West Hollywood; Crime Victims United of California; Association for Los Angeles Deputy Sheriffs; Riverside Sheriffs' Association; Los Angeles Police Protective League Opposition:California Public Defenders Association (unless amended) (More) AB 16 (John A. Pérez) PageB Assembly Floor Vote: Ayes 78 - Noes 0 KEY ISSUE SHOULD FELONY DOMESTIC VIOLENCE BE EXPANDED TO INCLUDE ACTS AGAINST FIANCÉS AND FIANCÉES, AND PERSONS WITH WHOM AN OFFENDER HAS OR PREVIOUSLY HAD A DATING OR ENGAGEMENT RELATIONSHIP? PURPOSE The purpose of this bill is to expand felony domestic violence to include acts against fiancés and fiancées, and persons with whom an offender has or previously had a dating or engagement relationship. Current law 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 $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 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, as specified. (Penal Code § 243(e)(1).) Current law 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, (More) AB 16 (John A. Pérez) PageC 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 § 273.5(a).) Current law 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 § 273.5(c).) Current law provides that any person convicted of violating this section for acts occurring within seven years of a previous conviction of this offense, battery where serious bodily injury is inflicted on the victim (Penal Code § 243(d)), sexual battery (Penal Code § 243.4), assault with caustic chemicals or flammable substances (Penal Code 244), assault with a stun gun or taser (Penal Code § 244.5), or assault with a deadly weapon or instrument by any means of force likely to produce great bodily injury (Penal Code § 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 $10,000. (Penal Code § 273.5(e)(1).) Current law provides that any person convicted of a violation of this section for acts occurring within seven years of a previous conviction for misdemeanor domestic violence (Penal Code § 243(e)) 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 § 273.5(e)(2).) This bill would expand the categories of relationships that constitute felony domestic violence resulting in a traumatic condition to include fiancés and fiancées, and persons with whom an offender has, or previously had, an engagement or dating relationship, as defined in Section (More) AB 16 (John A. Pérez) PageD 243 (f)(10).<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 relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment --------------------------- <1> "'Dating relationship' means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations." (More) AB 16 (John A. Pérez) PageE went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS (More) AB 16 (John A. Pérez) PageF 1. Stated Need for This Bill The author states: Under Penal Code Section 273.5, 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, Penal Code Section 243 (e), 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 relationships qualify 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 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. Furthermore, state law requires that the state track (More) AB 16 (John A. Pérez) PageG 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 causes inaccurate reporting on domestic violence cases and 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. AB 16 brings conformity to domestic violence law by adding fiancés or fiancées, and current or former dating and engagement partners to the felony domestic violence statutes. It enables offenders to be charged with the appropriate crimes and sentenced to the appropriate punishments, and it allows for more accurate statistical reporting of domestic violence occurrences. 2. What This Bill Would Do As explained above, this bill would expand the scope of felony domestic violence to include acts against the offender's fiancé or fiancée, or someone with whom the offender has, or previously had, an engagement or dating relationship. The bill employs, by cross-reference, the following definition: "Dating relationship" means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. 3. Background Current law contains misdemeanor and felony domestic violence statutes which are not identical in terms of their scope. 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 (More) AB 16 (John A. Pérez) PageH cohabitant, or the mother or father of his or her child - but not a fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship. This bill would add these additional persons to the felony domestic violence statute. Under current law, so-called "simple" battery is punishable by a $2,000 fine, up to six months in jail, or both. When "simple" battery is domestic violence, however,<2> the potential jail time is double - a period of not more than one year. In addition, if probation is granted in these cases, or the execution or imposition of the sentence is suspended, the defendant must participate in a batterer's treatment program, as specified. (Penal Code § 243(e).) Even the slightest unprivileged touching can constitute a battery: It has long been established, both in tort and criminal law, that "the least touching" may constitute battery. In other words, force against the person is enough; it need not be violent or sever, it need not cause bodily harm or even pain, and it need not leave any mark.<3> The greater sentence for battery in a domestic violence setting was created in 1989 by AB 238 (Roybal-Allard) - Ch. 191, Stats. 1989. According to the Senate Judiciary Committee analysis of AB 238, the author's intent was to address the need to "differentiate battery between individuals who are, or were, involved in a special relationship such as couples who have lived together but recently separated, dating couples, formerly --------------------------- <2> More specifically, a battery 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, as enumerated in Penal Code section 243(e). <3> 1 Witkin, California Criminal Law Third Edition, Crimes Against the Person, § 12, pp. 645-646 (emphasis in original). (More) AB 16 (John A. Pérez) PageI married and formerly dating couples and gay couples, as more severe than 'common' battery." (Senate Judiciary Committee Analysis of AB 238, as amended May 30, 1989.) Felony domestic violence was enacted first in California in 1945. As described in People v. Gutierrez (1985) 171 Cal.App.3d 944: (Former Penal Code section 273d) prohibited a husband from inflicting upon his wife corporal injury resulting in a traumatic condition and prohibited any person from doing the same to any child. In 1977 the Legislature separated the subject matters of child abuse and wife beating found in the original section 273d. The child abuse prohibition was retained in exact language with the same section number. The wifebeating provisions were renumbered as section 273.5 and underwent a transformation which prohibited either spouse from inflicting corporal punishment resulting in a traumatic condition on the other. In addition, cohabiting partners of the opposite sex were added as a category of protected individuals.<4> The court in Gutierrez further explained, "[i]t is injury resulting in a traumatic condition that differentiates this crime from lesser offenses. Both simple assault and misdemeanor battery are included in a prosecution of section 273.5. . . . (More) --------------------------- <4> People v. Gutierrez , supra, 171 Cal.App.3d at 952-953. Some other offenses do require higher degrees of harm to be inflicted before the crime denounced by them is committed: felony battery, section 243, subdivision (d), requires "serious bodily injury"; and, felony assault, section 245, subdivision (a), requires "force likely to produce great bodily injury." But, the Legislature has clothed persons of the opposite sex in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed. Those special relationships form a rational distinction which has a substantial relation to the purpose of the statute.<5> Even "minor" physical injury falls within the scope of section 273.5.<6> 4. Opposition The California Public Defenders Association, which opposes this bill, submits in part: This proposed legislation dilutes the policy reasons underlying the additional penalties and protections attendant to crimes of domestic violence. After centuries in which women were regarded as merely the property of men, women's advocates in the twentieth century fought long and hard for domestic violence to be regarded as a crime. Sociological research documents the psychological and economic dependence which bound women to their male abusers. Recently, advances in the neurological sciences have shown that children who witness domestic violence can have their brain development affected. The protections for battered women have been extended in California to males and anyone else in a domestic relationship or who have children in common. Offenders convicted ---------------------- <5> Id (emphasis added). In 1994, the Legislature passed ABx1 93 (Burton) to delete the reference to "opposite sex." <6> People v. Wilkins (1993) 14 Cal.App.4th 761, 771 (citations omitted). (More) AB 16 (John A. Pérez) PageK under the domestic violence statutes face increased prison sentences, fines, fees and 52 week long domestic violence counseling orders. The rationale for the domestic violence laws do not apply to mere friends or people who have a casual dating relationship. If they do not meet the current definition of victims for domestic violence, these friends or romantic partners do not share the economic dependence or vulnerability that are the basis for the domestic violence laws. In this proposed legislation, if the offender ever was engaged to or dated the victim, regardless of when, the offender could be subject to a felony. For example, if 20 years later the offender slapped the victim or got into a barroom brawl or senior citizens center fight, the offender could be prosecuted for a felony and forced to attend a year of domestic violence counseling. For the above reasons, on behalf of CPDA, I respectfully urge your "No" vote on AB 16 when it comes before you in Senate Public Safety Committee unless it is amended to strike out the expansion to include individuals with whom the offender has, or previously had, a dating or engagement relationship. 5. Prison Impact Considerations The Assembly Appropriations Committee's analysis of this bill included the following information concerning its potential to impact the prison system: 1) Unknown, likely minor increased GF costs for initial state prison commitments. As the underlying felony domestic abuse statute this bill amends is excluded from the felonies eligible for local incarceration under 2011 correctional realignment, this bill could result in unknown, AB 16 (John A. Pérez) PageL moderate annual GF costs for increased state prison commitments. In 2011 and 2012, a combined 3,574 persons were committed to state prison under the section amended by this bill. If the definitional expansion in this bill results in a 10% increase in state commitments, assuming a mid-range term, full sentence credits, and the average per capita prison cost, annual costs could exceed $10 million. The same penalty, however, can be achieved by charging under Penal Code Section 245 (assault with a deadly weapon or force likely to cause bodily injury,), which would significantly mitigate, if not eliminate, the cost of new commitments under the new section. 2) Unknown, potentially significant increased GF costs for longer prison terms for recidivists. The section amended by this bill provides for longer state prison sentences (2, 4, or 5 years) for repeat offenses of this section and other specified sections, than under PC 245 (generally 2, 3, or 4 years), which could further increase annual costs in the out-years. These costs would be in the range of $3 million for every 100 offenders subsequently committed under this section who serve six months longer than they would under PC 245. ***************