BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 835        Hearing Date:    June 23, 2015    
          
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          |Author:    |Gipson                                               |
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          |Version:   |April 14, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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              Subject:  Vehicular Manslaughter: Statute of Limitation 



          HISTORY

          Source:   Crime Victims United

          Prior Legislation:AB 184 (Gatto), Chapter 765, Statutes of 2013 
                           SB 387 (LaMalfa) held SCoPS ROCA 2012
                           AB 2484 (Davis) not heard SCoPS ROCA 2012


          Support:  The California Association of Highway Patrolman;  
                    California District Attorneys Association; California  
                    Police Chiefs Association, Inc.; Los Angeles County  
                    District Attorney's Association

          Opposition:American Civil Liberties Union; California Attorneys  
                    for Criminal Justice; Legal Services for Prisoners  
                    with Children


          Assembly Floor Vote:                 75 - 0
          

          PURPOSE
          
          The purpose of this bill is to allow for a longer statute of  








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          limitations when a person flees the scene of an accident where  
          vehicular manslaughter has occurred.
          
          Existing law states that vehicular manslaughter is the unlawful  
          killing of a human being without malice while driving a vehicle  
          in the commission of an unlawful act, not amounting to a felony,  
          and with gross negligence or driving a vehicle in the commission  
          of a lawful act which might produce death, in an unlawful  
          manner, and with gross negligence. (Penal Code,  192 (c)(1).) 

          Existing law states that violation of vehicular manslaughter is  
          punishable by either imprisonment in the county jail for not  
          more than one year or by imprisonment in the state prison for  
          two, four or six years. (Penal Code,  193 (c)(1).) 

          Existing law states that vehicular manslaughter also is the  
          unlawful killing of a human being without malice while (i)  
          driving a vehicle in the commission of an unlawful act, not  
          amounting to a felony, but without gross negligence or (ii)  
          driving a vehicle in the commission of a lawful act which might  
          produce death, in an unlawful manner, but without gross  
          negligence.  States that violation of this offense is punishable  
          by imprisonment in the county jail for not more than one year.  
          (Penal Code  192(c)(2) and  193 (c) (2).) 

          Existing law requires that prosecution for an offense punishable  
          by imprisonment in the state prison or county jail pursuant to  
          realignment be commenced within three years after commission of  
          the offense, except as specified. (Penal Code,  801.) 

          Existing law states that the driver of a vehicle involved in an  
          accident resulting in injury to a person, other than himself or  
          herself, or in the death of a person shall immediately stop the  
          vehicle at the scene of the accident and provide assistance and  
          information. (Vehicle Code,  20001 (a).) 

          Existing law specifies that if the results is death or  
          permanent, serious injury, a person who violates subdivision  
          shall be punished by imprisonment in the state prison for two,  
          three, or four years, or in a county jail for not less than 90  
          days nor more than one year, or by a fine of not less than one  
          thousand dollars ($1,000) nor more than ten thousand dollars  
          ($10,000), or by both that imprisonment and fine.  However, the  
          court, in the interests of justice and for reasons stated in the  









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          record, may reduce or eliminate the minimum imprisonment.  
          (Vehicle Code,  20001  (b)(2).) 

          Existing law states that a person who flees the scene of the  
          crime after committing a violation of vehicular manslaughter  
          while intoxicated of, or gross vehicular manslaughter upon  
          conviction of any of those sections, in addition and consecutive  
          to the punishment prescribed, shall be punished by an additional  
          term of imprisonment of five years in the state prison.  This  
          additional term shall not be imposed unless the allegation is  
          charged in the accusatory pleading and admitted by the defendant  
          or found to be true by the trier of fact.  The court shall not  
          strike a finding that brings a person within the provisions of  
          this subdivision or an allegation made pursuant to this  
          subdivision. (Vehicle Code,  20001 (c).) 

          Existing law requires that prosecution for a misdemeanor offense  
          be commenced within one year after commission of the offense,  
          except as specified. (Penal Code,  802 (a).) 

          Existing law allows a criminal complaint to be filed within the  
          standard period, or one year after the person is initially  
          identified by law enforcement as a suspect in the commission of  
          the offense, whichever is later, but in no case later than six  
          years after the commission of the offense, if a person flees the  
          scene of an accident that caused death or permanent, serious  
          injury. (Penal Code,  803 (j).) 

          This bill provides that notwithstanding any other limitation of  
          time, if a person flees the scene of an accident where the  
          person is charged with vehicular manslaughter, the statute of  
          limitation is one year after the person is initially identified  
          by law enforcement as a suspect in the offense or the existing  
          statute of limitations, whichever is later.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          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  









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          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;
              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  









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               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS
                                          

          1.  Need for This Bill
          
          According to the author:

          Assembly Bill 835 will ensure those who commit vehicular  
          homicide and flee the scene of a fatality are held  
          accountable for their crime. By tolling - or suspending -  
          the statute of limitations so it does not begin to expire  
          until a suspect is identified, AB 835 would give law  
          enforcement a one year period to file charges against those  
          who commit this crime. In LA County alone, there is an  
          average of 6,000 hit and run accidents that result in death  
          or injury every year. We need to give law enforcement the  
          tools to prosecute these cases, and provide justice for the  
          families shattered by these crimes."

          2.The Statute of Limitations Generally; Law Revision Commission  
          Report
          
          The statute of limitations requires commencement of a  
          prosecution within a certain period of time after the commission  
          of a crime.  A prosecution is initiated by filing an indictment  
          or information, filing a complaint, certifying a case to  
          superior court, or issuing an arrest or bench warrant.  (Penal  
          Code  804.)  The failure of a prosecution to be commenced  
          within the applicable period of limitation is a complete defense  
          to the charge.  The statute of limitations is jurisdictional and  
          may be raised as a defense at any time, before or after  
          judgment.  People v.   Morris (1988) 46 Cal.3d 1, 13.  The defense  
          may only be waived under limited circumstances.  (See Cowan v.  
          Superior Court (1996) 14 Cal.4th 367.)

          The Legislature enacted the current statutory scheme regarding  
          statutes of limitations for crimes in 1984 in response to a  
          report of the California Law Revision Commission:

              The Commission identified various factors to be  









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              considered in drafting a limitations statute.  These  
              factors include:  (a) The staleness factor.  A person  
              accused of crime should be protected from having to face  
              charges based on possibly unreliable evidence and from  
              losing access to the evidentiary means to defend.  (b)  
              The repose factor.  This reflects society's lack of a  
              desire to prosecute for crimes committed in the distant  
              past.  (c) The motivation factor.  This aspect of the  
              statute imposes a priority among crimes for  
              investigation and prosecution.  (d) The seriousness  
              factor.  The statute of limitations is a grant of  
              amnesty to a defendant; the more serious the crime, the  
              less willing society is to grant that amnesty.  (e) The  
              concealment factor.  Detection of certain concealed  
              crimes may be quite difficult and may require long  
              investigations to identify and prosecute the  
              perpetrators.

              The Commission concluded that a felony limitations  
              statute generally should be based on the seriousness of  
              the crime.  Seriousness is easily determined based on  
              classification of a crime as felony or misdemeanor and  
              the punishment specified, and a scheme based on  
              seriousness generally will accommodate the other factors  
              as well.  Also, the simplicity of a limitations period  
              based on seriousness provides predictability and  
              promotes uniformity of treatment.<1>

          3.  Existing Statute of Limitations for Fleeing a Scene
          
          AB 184 (Gatto) in 2013 extended the statute of limitations when  
          a person flees the scene of an accident and causes death or  
          permanent serious injury.  The law now allows a case to be filed  
          within the applicable time period or one year after the person  
          was initially identified by law enforcement, but in no case  
          later than six years. The six year limitation was put in AB 184  
          (Gatto) to strike a balance between not letting a case get  
          stale, encouraging law enforcement to continue to pursue leads  
          and the difficulty a person facing in defending a years old  
          case.




                             ---------------------------
          <1>  1 Witkin Cal. Crim. Law Defenses, Section 214 (3rd Ed.  
          2004), citing 17 Cal. Law Rev. Com. Reports, pp.308-314.








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          4.  Expanding Statute of Limitations for Vehicular Manslaughter
          
          This bill would allow for an extension of the statute of  
          limitations for vehicular manslaughter when a person flees the  
          scene. The existing statute of limitations is 3 years for a  
          felony and one year for a misdemeanor.  This bill would provide  
          that the statute of limitations would be one year after the  
          person is initially identified by law enforcement as a suspect  
          or the existing statute of limitations, whichever is later.

          5.  Support

          In support the Los Angeles District Attorney's Office states:

               AB 835 provides that, in addition to filing a criminal  
               complaint within the existing statute of limitations,  
               if a person flees the scene of an accident that  
               results in a vehicular manslaughter a criminal  
               complaint may be filed within one year after the  
               person is initially identified by law enforcement as a  
               suspect in the commission of the offense, whichever is  
               later.

               Although these cases are rare, when they do occur, it  
               is a terrible injustice. AB 835 will give law  
               enforcement one year after the subject is identified  
               to arrest and charge that individual.  Unfortunately,  
               current law gives hit and run drivers and incentive to  
               evade law enforcement in cases where they have caused  
               the death of the victim. The defendant should not be  
               permitted the benefit of the current statute of  
               limitations since it is the defendant's own action in  
               fleeing from the scene of the accident and then  
               evading law enforcement that caused the statute of  
               limitations to expire.

               Under current law, there are similar statutes for  
               other offenses where the identity of the perpetrator  
               may not be learned within the regular statute of  
               limitation.  For example, in fraud cases, the statute  
               of limitation does not begin to run until the  
               discovery of the offense, even if the crime was  









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               committed years before it was discovered. Similarly,  
               in sex crime cases involving minors, a criminal case  
               may be filed within one year after it is reported to  
               law enforcement after the minor turns 18, regardless  
               of when the crime was committed. Similar states of  
               limitation exist for welfare fraud, bribery of a  
               public official and certain environmental crimes.  
               Victims killed in cases involving vehicular  
               manslaughter should be entitled to the same  
               protection.
           
          6.  Opposition

          The ACLU opposes this bill unless the six-year limit that was  
          put in for the statute of limitations where a person flees the  
          scene of an accident is added to this bill. Specifically they  
          state:

               AB 835 would effectively eliminate the statute of  
               limitations for charges under Penal Code section  
               192(c)(1) or (2) in cases where a person flees the  
               scene of an accident. The bill would permit the  
               prosecution to pursue charges within one year of  
               identifying a suspect, without any outer-limit on when  
               charges may be filed. Practically speaking, this is  
               effectively the same as no statute of limitations, as  
               the prosecution may pursue charges decades after the  
               events at issue. In contrast, Penal Code section  
               803(j) currently provides that, in cases where a  
               person flees the scene of an accident causing death,  
               the prosecution may file charges within one year of  
               identifying a suspect "but in no case later than six  
               years after the commission of the offense."

               Creating two different statutes of limitations for  
               these offenses will create confusion. A prosecutor may  
               choose to charge the more severe offense of Penal Code  
               section 192(c) for the specific purpose of evading the  
               six year statute of limitations provided for the  
               offense of fleeing the scene of an accident causing  
               death. People charged with this more severe crime more  
               than six years after the events may raise legitimate  
               due process and equal protection concerns. 










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               Moreover, statutes of limitations promote one of the  
               core principles of our justice system: that crimes are  
               solved and brought to trial quickly, to ensure that a  
               person accused of a crime faces reliable evidence and  
               has a fair opportunity to mount a defense. The United  
               States Supreme Court stated that statutes of  
               limitations are the primary guarantee against bringing  
               overly stale criminal charges. (United States v. Ewell  
               (1966) 383 U.S. 116, 122.) People should not face  
               criminal charges based on evidence that may be  
               unreliable or after they have lost access to evidence  
               to defend against the charge. With time memory fades,  
               witnesses become unavailable, and physical evidence  
               becomes unobtainable or contaminated. 

               Offenses that charged under Penal Code section 192(c)  
               are particularly likely to raise these concerns. These  
               offenses do not require intent but, rather, a finding  
               of gross negligence. Determining whether the accused  
               person committed an act with gross negligence requires  
               a careful assessment of all of the circumstances of  
               the accident and many of the circumstances leading up  
               to the accident. A person facing charges of gross  
               vehicular manslaughter decades after the event will  
               have lost the ability to identify and interview key  
               witnesses and to collect physical evidence that may be  
               relevant to his or her defense. 

               For these reasons, we oppose AB 835 unless amended to  
               provide an outer-limit of six years for filing these  
               charges.

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