BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 545| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 545 Author: Melendez (R) Amended: 4/23/15 in Assembly Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/14/15 AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen ASSEMBLY FLOOR: 80-0, 6/1/15 - See last page for vote SUBJECT: Domestic violenceDomestic violence. SOURCE: Author DIGEST: This bill includes 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 misdemeanor domestic battery conviction, as specified. ANALYSIS: Existing law: 1)Provides that a battery is any willful and unlawful use of AB 545 Page 2 force or violence upon the person of another. (Pen. Code, § 242.) 2)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).) 3)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).) 4)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).) 5)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).) AB 545 Page 3 This bill revises the provision described immediately above to include persons with a previous conviction of felony domestic violence under Penal Code section 273.5. Background "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 leave any mark. (1 Witkin, California Criminal Law Fourth Edition, section 13.) The greater sentence for battery in a domestic violence setting 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 AB 545 Page 4 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 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).) FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes The Senate Appropriations Committee states: Ongoing increase in non-reimbursable local incarceration costs, potentially in excess of $50,000 (General Fund*) annually, to the extent future convictions for domestic battery result in additional county jail costs for individuals with prior DV convictions who otherwise would AB 545 Page 5 not have been subject to the minimum jail sentence. According to DOJ data, there are over 10,000 convictions under PC § 273.5 (DV) each year. It is unknown what portion of the 7,000 annual convictions for domestic battery would potentially be impacted by this measure, but for every 250 individuals (3.5 percent of domestic battery convictions) impacted, would result in increased county jail costs of about $50,000 based on an estimated daily jail rate of $100 and the minimum period of 48 hours. *Proposition 30 (2012) provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency, as specified, apply to local agencies only to the extent the State provides annual funding for the cost increase. Although legislation creating a new crime or revising the definition of an existing crime is exempt from Proposition 30 state funding requirements, legislation that changes the penalty for an existing crime is not similarly specifically exempt. As domestic battery and domestic violence are existing crimes, to the extent the provisions of this measure are determined to change the penalty for these crimes, any increase in costs to local agencies attributable to the provisions of this legislation could potentially require annual funding from the State. SUPPORT: (Verified8/28/15) Crime Victims United of California Los Angeles County District Attorney's Office OPPOSITION: (Verified8/28/15) California Public Defenders Association Legal Services for Prisoners with Children ARGUMENTS IN SUPPORT: The author states, "If an offender is AB 545 Page 6 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. ARGUMENTS IN OPPOSITION: Opponents state, "Although it is a laudable goal to wish to end domestic violence, there is no evidence showing that doubling or increasing the mandatory sentence five-fold is a deterrent. The judge already has the discretion to impose a lengthy county jail sentence in the appropriate case." ASSEMBLY FLOOR: 80-0, 6/1/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins Prepared by:Alison Anderson / PUB. S. / 8/31/15 15:43:45 **** END ****