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)
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AB 16 (John A. Pérez)
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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,
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AB 16 (John A. Pérez)
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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
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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
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<1> "'Dating relationship' means frequent, intimate
associations primarily characterized by the expectation of
affectional or sexual involvement independent of financial
considerations."
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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
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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
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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
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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
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<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).
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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. . . .
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<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
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<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).
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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,
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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.
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