BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 545 Hearing Date: July 14, 2015
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|Author: |Melendez |
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|Version: |April 23, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|AA |
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Subject: Domestic Violence
HISTORY
Source: Author
Prior Legislation:None
Support: Crime Victims United of California; Los Angeles County
District Attorney's Office
Opposition: California Public Defenders Association; Legal
Services for Prisoners with Children
Assembly Floor Vote: 80 - 0
PURPOSE
The purpose of this bill is to include a prior offense for
felony domestic violence in the existing statute that imposes a
mandatory incarceration period of not less than 48 hours when a
person convicted of domestic battery is granted probation and
has a prior domestic battery conviction, as specified.
Existing law includes the following:
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Provides that a battery is any willful and unlawful use
of force or violence upon the person of another. (Pen.
Code, § 242.)
Provides that a battery is punishable by a fine not
exceeding two thousand dollars, or by imprisonment in a
county jail not exceeding six months, or by both that fine
and imprisonment. (Pen. Code, § 243, subd. (a).)
Defines as a crime, any 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. (Pen. Code, § 243(e).)
Imposes punishment for a domestic battery, as defined
above, by a fine not exceeding two thousand dollars
($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 specified, or if none is available,
another appropriate counseling program designated by the
court. (Pen. Code, § 243(e).)
Requires that if probation is granted or the execution
or imposition of the sentence is suspended and the person
has been previously convicted of domestic battery, the
person shall be imprisoned for not less than 48 hours in
addition to the conditions required. However, the court,
upon a showing of good cause, may elect not to impose the
mandatory minimum imprisonment as required by this
subdivision and may, under these circumstances, grant
probation or order the suspension of the execution or
imposition of the sentence. (Pen. Code, § 243(e).)
This bill would revise this provision to include persons with a
previous conviction of felony domestic violence under Penal Code
section 273.5.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
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Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
The author states:
If an offender is convicted of felony domestic
assault, with a prior conviction of domestic battery,
a misdemeanor, the offender is required to serve for
at least two, three or four years in state prison, in
a county jail up to one year, and/or a fine of up to
$10,000.
However, the above scenario does not remain consistent
if the convictions were reverse. The offender would
only face imprisonment in a county jail up to six
months and/or a fine up to $2,000.
2.Background: Misdemeanor and Felony Domestic Violence Offenses
"Simple" battery generally is a misdemeanor punishable by up to
six months in jail. 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 severe, it need
not cause bodily harm or even pain, and it need not
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leave any mark.<1>
The greater sentence for battery in a domestic violence
setting (Penal Code section 243 (e), described above) was
created in 1989 by AB 238 (Roybal-Allard) Chapter 191,
Statutes 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 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 first was enacted in California in
1945. As explained in People v. Gutierrez (1985) 171
Cal.App.3d 944:
[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. (Id. at
171 Cal.App.3d at 948.)
As explained by the court in Gutierrez, "[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." (Id.)
Even "minor" physical injury falls within the scope of section
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<1> 1 Witkin, California Criminal Law Fourth Edition, section
13.
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273.5:
Section 273.5 is violated when the defendant inflicts
even "minor" injury. Unlike other felonies, e.g.
aggravated battery which require serious or great
bodily injury, "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."
(People v. Wilkins (1993) 14 Cal.App.4th
761,771(citations omitted).)
3.What This Bill Does
This bill extends the existing penalty of a minimum period of
imprisonment in county jail of no less than two days for
individuals convicted of domestic battery if probation is
granted where the person has a prior domestic battery conviction
to also apply to persons with a prior felony domestic violence
conviction.
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