BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    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  
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             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  

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             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  

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          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


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          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

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          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  

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            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  

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            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

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