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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