BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 545|
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THIRD READING
Bill No: AB 545
Author: Melendez (R)
Amended: 9/4/15 in Senate
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.
Senate Floor Amendments of 9/4/15 are technical, double-jointing
amendments to avoid chaptering problems with AB 172 (Rodriguez).
ANALYSIS:
Existing law:
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1)Provides that a battery is any willful and unlawful use of
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).)
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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
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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 not have been
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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
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
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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. /
9/8/15 17:23:02
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