BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 16| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 16 Author: John A. Pérez (D), et al. Amended: 6/14/13 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/25/13 AYES: Hancock, Anderson, Block, De León, Knight, Liu, Steinberg SENATE APPROPRIATIONS COMMITTEE : 7-0, 8/30/13 AYES: De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg ASSEMBLY FLOOR : 78-0, 5/30/13 - See last page for vote SUBJECT : Domestic violence: corporal injury SOURCE : Author DIGEST : This bill expands 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. ANALYSIS : Existing law: 1. 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 CONTINUED AB 16 Page 2 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 (PEN) Section 1203.097, or if none is available, another appropriate counseling program designated by the court, as specified. (PEN Section 243(e)(1)) 2. Provides any person who willfully inflicts upon a person who is his/her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his/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. (PEN Section 273.5(a)) 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. (PEN Section 273.5(c)) 4. Provides that any person convicted of violating the specified acts occurring within seven years of a previous conviction of this offense, battery where serious bodily injury is inflicted on the victim, sexual battery, assault with caustic chemicals or flammable substances, assault with a stun gun or taser, or assault with a deadly weapon or instrument by any means of force likely to produce great bodily injury 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. (PEN Section 273.5(e)(1)) 5. Provides that any person convicted of a violation of the specified acts occurring within seven years of a previous conviction for misdemeanor domestic violence shall be CONTINUED AB 16 Page 3 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. (PEN Section 273.5(e)(2)) This bill: 1. Adds former fiances/fiancees and current and former dating relationships to the types of relationships - spouse/former spouse, cohabitant/former cohabitant, mother/father of the offender's child - that constitute felony domestic violence when corporal injury results in a traumatic condition. 2. States that this offense is a wobbler, punishable by up to one year in county jail and/or a fine of up to $6,000, or two, three, or four years in state prison. Background Existing 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 cohabitant, or the mother or father of his/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. Under existing 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, 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. The greater sentence for battery in a domestic violence setting was created in 1989 by AB 238 (Roybal-Allard, Chapter 191). According to the Senate Judiciary Committee analysis of AB 238, the author's intent was to address the need to "differentiate CONTINUED AB 16 Page 4 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 married and formerly dating couples and gay couples, as more severe than 'common' battery." 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. 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. . . . 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes CONTINUED AB 16 Page 5 According to the Assembly Appropriations Committee: 1. Unknown, likely minor increased General Fund (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, 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 PEN 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 (two, four, or five years) for repeat offenses of this section and other specified sections, than under PEN Section 245 (generally two, three, or four 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 PEN Section 245. 3. Unknown nonreimbursable local probation costs for programs and treatment, offset to a degree by offender reimbursements. SUPPORT : (Verified 8/30/13) Association for Los Angeles Deputy Sheriffs California Communities United Institute California Conference of Bar Associations California District Attorneys Association CONTINUED AB 16 Page 6 California Partnership to End Domestic Violence California Police Chiefs Association California State Sheriffs' Association City of West Hollywood Crime Victims Action Alliance Crime Victims United of California Los Angeles County Sheriff Los Angeles District Attorney Los Angeles Police Protective League Riverside Sheriffs' Association Women Lawyers Association of Los Angeles OPPOSITION : (Verified 8/30/13) California Public Defenders Association ARGUMENTS IN SUPPORT : 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 CONTINUED AB 16 Page 7 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 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. ARGUMENTS IN OPPOSITION : The California Public Defenders Association (CPDA) 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 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 CONTINUED AB 16 Page 8 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. ASSEMBLY FLOOR : 78-0, 5/30/13 AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom, Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox, Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Grove, Hagman, Hall, Harkey, Roger Hernández, Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein, Mansoor, Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting, Wagner, Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Holden, Vacancy JG:k 8/31/13 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED