BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          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)
                                                                      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 








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                                                      AB 16 (John A. Pérez)
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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  
          ---------------------------
          <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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                                                      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




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                                                      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  




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                                                      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  




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                                                      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).



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                                                      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. . . .














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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  
               ----------------------
          <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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                                                      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.   


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