BILL ANALYSIS Ó
AB 962
Page 1
Date of Hearing: April 14, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
962 (Maienschein) - As Introduced February 26, 2015
SUMMARY: Makes specified sex crimes committed against victims
with mental disorders or physical or developmental disabilities
qualifying crimes for the "One Strike Sex Law" and the
vulnerable victim enhancement. Specifically, this bill:
1)Adds the crimes of rape, sexual penetration, sodomy, and oral
copulation committed against a person who is incapable of
giving legal consent due to of a mental disorder or
developmental or physical disability to the list of offenses
which qualify for application of the "One Strike Sex Law."
2)Adds the crimes of rape, sexual penetration, sodomy, and oral
copulation committed against a person who is incapable of
giving legal consent due to of a mental disorder or
developmental or physical disability to the list of offenses
which qualify for the vulnerable-victim enhancement.
EXISTING LAW:
1)Provides that a person who commits an act of rape against a
victim who is incapable of giving legal consent due to of a
mental disorder or developmental or physical disability, shall
be punished by imprisonment in the state prison for three,
six, or eight years. (Pen. Code, § 264.)
AB 962
Page 2
2)Provides that a person who commits an act of sodomy against a
victim who is incapable of giving legal consent due to a
mental disorder or developmental or physical disability, shall
be punished by imprisonment in the state prison for three,
six, or eight years. (Pen. Code, § 286, subd. (g).)
3)Provides that a person who commits an act of oral copulation
against a victim who is incapable of giving legal consent due
to a mental disorder or developmental or physical disability,
shall be punished by imprisonment in the state prison for a
period of three, six, or eight years. (Pen. Code, § 288a,
subd. (g).)
4)Provides that a person who commits an act of sexual
penetration against a victim who is incapable of giving legal
consent due to a mental disorder or developmental or physical
disability shall be punished by imprisonment in the state
prison for a period of three, six, or eight years. (Pen.
Code, § 289, subd. (b).)
5)Provides an additional punishment of one year when the
defendant knows or reasonably should know that the victim of
an enumerated offense is 65 years of age or older, blind,
deaf, developmentally disabled, a paraplegic, a quadriplegic,
or under 14 years old. (Pen. Code, § 667.9, subd. (a).)
6)Provides an additional punishment of two years when the
defendant knows or reasonably should know that the victim of
an enumerated offense is 65 years of age or older, blind,
deaf, developmentally disabled, a paraplegic, a quadriplegic,
or under 14 years old, and where the defendant also has a
prior conviction for one of those crimes. (Pen. Code, § 667.9,
subd. (b).)
7)Defines "developmentally disabled" for purposes of the
vulnerable victim enhancement as "a severe, chronic disability
of a person, which is all of the following:
a) Attributable to a mental or physical impairment or a
combination of mental and physical impairments;
AB 962
Page 3
b) Likely to continue indefinitely; and
c) Results in substantial functional limitation in three or
more of the following areas of life activity:
i) Self-care;
ii) Receptive and expressive language;
iii) Learning;
iv) Mobility;
v) Self-direction;
vi) Capacity for independent living;
vii) Economic self-sufficiency." (Pen. Code, § 667.9,
subd. (d).)
8)Provides that persons who commit rape, spousal rape, rape in
concert, lewd and lascivious acts on a minor, sexual
penetration, sodomy, oral copulation, continuous sexual abuse
of a child, shall be punished by 25-years-to-life if (Pen.
Code, § 667.61, subd. (a)):
a) One or more of the following circumstances exist:
i) The defendant has been previously convicted of a
specified sex offense.
ii) The defendant kidnapped the victim of the present
offense and the movement of the victim substantially
increased the risk of harm to him or her.
iii) The defendant inflicted aggravated mayhem or torture
on the victim or another person in the commission of the
present offense.
iv) The defendant committed the present offense during
the commission of a burglary of the first degree.
AB 962
Page 4
v) The defendant committed rape by a foreign object,
sodomy in concert, as specified, oral copulation in
concert as specified; or,
b) Two or more of the following circumstances exist:
i) The defendant kidnapped the victim of the present
offense, as specified.
ii) The defendant committed the present offense during
the commission of a burglary, as specified.
iii) The defendant personally used a dangerous or deadly
weapon or a firearm in the commission of the present
offense, as specified.
iv) The defendant has been convicted in the present case
or cases of committing an offense specified against more
than one victim.
v) The defendant engaged in the tying or binding of the
victim or another person in the commission of the present
offense.
vi) The defendant administered a controlled substance to
the victim in the commission of the present offense, as
specified.
9)Provides that persons who commit rape, spousal rape, rape in
concert, lewd and lascivious acts on a minor, sexual
penetration, sodomy, oral copulation, continuous sexual abuse
of a child, shall be punished with 15-years-to-life if one of
the following circumstances exist (Pen. Code, § 667.61, subd.
(b)):
vii) The defendant kidnapped the victim of the present
offense, as specified.
viii) The defendant committed the present offense during
the commission of a burglary, as specified.
ix) The defendant personally used a dangerous or deadly
AB 962
Page 5
weapon or a firearm in the commission of the present
offense, as specified.
x) The defendant has been convicted in the present case
or cases of committing an offense specified against more
than one victim;
xi) The defendant engaged in the tying or binding of the
victim or another person in the commission of the present
offense; or,
xii) The defendant administered a controlled substance to
the victim in the commission of the present offense, as
specified.
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Under AB 962,
the scope of existing penalty enhancements in Penal Code
section 667.9 will be expanded, thus allowing prosecutors to
obtain higher penalties when sex crimes are committed against
vulnerable individuals specifically where it is difficult or
impossible to prove force was used due to the nature of the
victim's disability. In the recent California example, this
was imperative as the victim's disability makes her incapable
of speech or movement.
"Additionally, AB 962 will expand One Strike base crime offenses
to include sex crimes involving a victim who is incapable of
giving consent due to a disability when performed in
conjunction with other aggravating circumstances, such as
kidnapping, restraining or use of a deadly weapon.
"All victims deserve equal protection under the law. AB 962
will allow for more equitable punishment for those who commit
heinous crimes against victims who do not have the ability to
protect themselves."
2)Dual Use of Facts: "Although a single factor may be relevant
to more than one sentencing choice, such dual or overlapping
AB 962
Page 6
use is prohibited to some extent. For example, the court
generally cannot use a single fact both to aggravate the base
term and to impose an enhancement, nor may it use a fact
constituting an element of the offense either to aggravate or
to enhance a sentence." (People v. Scott (1994) 9 Cal.4th 331,
350 & fn. 12.)
For example, Penal Code section 12022.7, the great bodily injury
enhancement, which allows for enhanced punishment for actual
infliction of great bodily injury where a great bodily injury
occurred, can be applied to any offense except those where
serious bodily injury is already an element of the substantive
offense charged. (People v. Parrish (1985) 170 Cal.App.3d
336, 343-344; see also Pen. Code, § 12022.7, subd. (e), and
Cal. Rules of Court, rule 4.420.)
However, "where the facts surrounding the charged offense exceed
the minimum necessary to establish the elements of the crime,
the trial court can use such evidence to aggravate the
sentence." (People v. Castorena (1996) 51 Cal.App.4th 558,
562.) So, for example, where an age is an element of the
offense, the victim's age alone may not be used as a factor in
aggravation (People v. Fernandez (1990) 226 Cal.App.3d 669,
680), unless the victim is extremely young within the given
age range so as to make a victim "particularly vulnerable" in
relation to others within the age range (People v. Ginese
(1981) 121 Cal.App.3d 468, 477).
As pertains to this bill, the victim's developmental or physical
disability is an element of the enhancement. CALCRIM No. 3222
instructs the jury that it must decide whether the victim was,
inter alia, "blind/deaf/developmentally
disabled/paraplegic/[or] quadriplegic." The instruction also
gives a specific definition for a developmental disability.
For a true finding on the enhancement based on this
characteristic, the jury must find developmentally disabled
means a severe, chronic disability of a person that: 1) is
attributable to a mental or physical impairment or a
combination of mental and physical impairments; 2) is likely
to continue indefinitely; and 3) results in substantial
functional limitation in three or more of the following
abilities: to care for one's self; to understand and express
AB 962
Page 7
language; to learn; to be independently mobile; to engage in
self-direction; to live independently; or to be economically
self-sufficient. (CALCRIM No. 3222.)
The instructions on the substantive crimes also reference the
victim's disability. The jury is required to find that a
mental disorder/development or physical disability prevents
the victim from legally consenting. (See e.g., CALCRIM No.
1004 [rape of a disabled woman.) The finding that there is a
disability is limited to whether that disability affects the
victim's ability to consent.
Arguably, the jury would have to make additional findings to
impose the vulnerable-victim enhancement. The jury would be
required to find that the developmental disability satisfied
the criteria listed in the jury instruction. Alternatively,
the jury could find that a victim suffered from one of the
other physical disabilities which would not necessarily have
prevented the person from legally consenting to the sex act.
So, imposing the victim-vulnerability enhancement on a sex
crime committed against a disabled person would not
necessarily constitute impermissible dual use of facts.
3)One Strike Law: The One Strike Sex Crime Law is a separate
sentencing scheme which was enacted to provide life sentences
for certain aggravated sex offenders, even if they do not have
prior convictions. Under this scheme, a first-time offender
who commits a qualifying sex offense under one or more of the
circumstances listed in the statute is subject to a mandatory
sentence of 15 years to life or 25 years to life. (Pen. Code,
§ 667.61.) The facts that bring a defendant within the
provisions of the One Strike Law are grouped into two
categories. If a defendant commits a qualifying crime under
one circumstance listed in subdivision (e), then he or she
will receive a sentence of 15 years to life. If a defendant
commits a qualifying crime under one or more circumstances
listed under subdivision (d), or two or more circumstances
listed under subdivision (e), then he or she will receive a
sentence of 25 years to life. The distinction is that the
aggravating circumstances listed in subdivision (d) are more
severe than those listed in subdivision (e).
AB 962
Page 8
This bill adds crimes to the list of offenses which can be
prosecuted under the One Strike Law. The additional
aggravating circumstances must still be pled and proven to a
jury.
4)Prison Overcrowding: In January 2010, a three-judge panel
issued a ruling ordering the State of California to reduce its
prison population to 137.5% of design capacity because
overcrowding was the primary reason that CDCR was unable to
provide inmates with constitutionally adequate healthcare.
(Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK
JFM P/NO. C01-1351 THE.) The United State Supreme Court
upheld the decision, declaring that "without a reduction in
overcrowding, there will be no efficacious remedy for the
unconstitutional care of the sick and mentally ill" inmates in
California's prisons. (Brown v. Plata (2011) 131 S.Ct. 1910,
1939; 179 L.Ed.2d 969, 999.)
After continued litigation, 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 its most recent status report to the court (February 2015),
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).
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
AB 962
Page 9
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).) Moreover, there
are still approximately 10,500 prisoners being housed in out
of state and in private prisons. (See latest CDCR monthly
population report:
< http://www.cdcr.ca.gov/Reports_Research/Offender_Information_S
ervices_Branch/Monthly/TPOP1A/TPOP1Ad1503.pdf >.)
CDCR has informed this Committee that in in the last four
fiscal years (FY), there were approximately 25 admissions to
prison for the offenses targeted under this bill, as follows:
------------------------------------------------------------------------------
|FY 2010/11 |
| |
| |
------------------------------------------------------------------------------
---------------------------------------------------------------------------
| Principal| Subordinat| Both |
| | e | |
| | | |
| | | |
---------------------------------------------------------------------------
|---------------+-------------------+------------------+------------------------|
|PC § 261(a)(1) |9 |6 |15 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|PC §286(h) |0 |0 |0 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|PC § 286(g) |0 |1 |1 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|PC § 288a(g) |1 |1 |2 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
AB 962
Page 10
|PC § 289(b) |2 |5 |7 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|Totals |12 |13 |25 |
| | | | |
| | | | |
| | | | |
-------------------------------------------------------------------------------
------------------------------------------------------------------------------
|FY 2011/12 |
| |
| |
------------------------------------------------------------------------------
------------------------------------------------------------------------------
| Principal| Subordinate| Both |
| | | |
| | | |
------------------------------------------------------------------------------
-------------------------------------------------------------------------------
|PC § 261(a)(1) |4 |4 |8 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC §286(h) |0 |0 |0 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 286(g) |1 |6 |7 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 288a(g) |3 |8 |11 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 289(b) |1 |0 |1 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|Totals |9 |18 |27 |
| | | | |
AB 962
Page 11
| | | | |
| | | | |
-------------------------------------------------------------------------------
------------------------------------------------------------------------------
|FY 2012/13 |
| |
| |
------------------------------------------------------------------------------
---------------------------------------------------------------------------
| Principal| Subordinate| Both |
| | | |
| | | |
| | | |
---------------------------------------------------------------------------
-------------------------------------------------------------------------------
|PC § 261(a)(1) |9 |4 |13 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC §286(h) |0 |1 |1 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 286(g) |1 |1 |2 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 288a(g) |3 |6 |9 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 289(b) |1 |0 |1 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|Totals |14 |12 |26 |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
-------------------------------------------------------------------------------
AB 962
Page 12
------------------------------------------------------------------------------
|FY 2013/14 |
| |
| |
------------------------------------------------------------------------------
---------------------------------------------------------------------------
| Principal| Subordinate| Both |
| | | |
| | | |
| | | |
---------------------------------------------------------------------------
-------------------------------------------------------------------------------
|PC § 261(a)(1) |5 | | |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 286(h) |0 | | |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 286(g |1 | | |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 288a(g) |1 | | |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 289(b) |3 | | |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|Totals |10 | | |
| | | | |
| | | | |
-------------------------------------------------------------------------------
However, it should be noted that not all of these admissions
would be prosecuted under the One-Strike Law or allege the
vulnerable-victim enhancement. Moreover, in those cases in
AB 962
Page 13
which the vulnerable-victim enhancement is pled and proven,
the court retains the discretion to strike it. (Pen. Code, §
1385.) Therefore, expanding the scope of these provisions to
include the specified crimes would likely result in minor
increased state incarceration.
1)Argument in Support: According to the Arc and United Cerebral
Palsy California Collaboration, "Sexual assault of people with
developmental disabilities can legitimately be called an
epidemic. Your bill will increase penalties for the
relatively few persons who the criminal justice system is able
to convict of this vile crime, keeping them in prison and
preventing their predation of non-incarcerated persons [with]
developmental disabilities for longer periods of time."
2)Argument in Opposition: The California Public Defenders
Association writes, "While well-intended, this proposed bill
has the potential to imprison mentally disordered and disabled
people. Mentally disordered and disabled individuals in group
homes and other settings may not have the legal capacity to
consent since the CALCRIM jury instruction 1004 defines it as
'a woman is prevented from legally consenting if she is unable
to understand the act, its nature, and possible consequences.'
Courts have stated that the definition, as embodied in the
jury instruction, is sufficient to explain inability to
legally consent. People v. Miranda, 199 Cal.App.4th 1403,
1419, fn. 13 (2011).
"However, such individuals are not children. They have sex
drives and are sexually active. Should one mentally disordered
or disabled individual face life in prison for having sex with
another disabled or disordered person? Who is culpable? Is
the person with the borderline mentally retarded I.Q. culpable
for having sex with someone whose I.Q. is lower? Is the
mentally disordered person who is taking his psychotropic
medication culpable for having sex with the mentally
disordered person who refused to take his psychotropic
medications? Under the provisions of this proposed
legislation, no force or other offense would be required if
the individual had done it before and been convicted.
AB 962
Page 14
"This legislation is not needed and is redundant because someone
who in the course of committing a sexual assault kidnaps the
victim, commits a burglary, uses a weapon, inflicts great
bodily injury, or ties the victim up or has a prior sexual
assault is already subject to the enhanced punishment
provisions, 15 or 25 years to life, of Penal Code Section
667.61. What this legislation does is add merely the status
of the disability of the victim. ?
"This proposed legislation would also undermine the Department
of Corrections and Rehabilitation's efforts to comply with the
federal court order regarding prison overcrowding. Increasing
sentences requires additional expenditures for state prisons.
Currently, it costs the state about $50,000 annually per
prisoner. Costs are higher for physically or mentally
disabled inmates."
3)Related Legislation:
a) AB 1272 (Grove) authorizes a judicial officer to issue
an ex parte emergency protective order when an officer has
reason to believe that a developmentally-disabled person is
in immediate danger of sexual exploitation by a
developmental disability residential service provider. AB
1272 is pending hearing in this Committee.
b) SB 164 (Beall) provides that where a defendant has been
convicted of a One-Strike qualifying crime in two separate
cases, he or she is subject to a life term under the law
regardless of the order of the convictions. SB 164 is
pending hearing in the Senate Appropriations Committee.
4)Prior Legislation:
a) AB 1335 (Maienschein), of the 2013-2014 Legislative
Session, would have made sex crimes committed against
developmentally disabled victims qualifying crimes under
the One Strike life-term sentencing scheme, and the
vulnerable victim sentence enhancement. AB 1335 was held
on the Senate Appropriations Committee suspense file.
b) AB 313 (Zettel), Chapter 569, Statutes of 1999, added
AB 962
Page 15
deaf and developmentally disabled persons as qualifying
victims to the existing enhancement statute for serious
crimes committed against the elderly, children under age
14, and persons who are either blind, a paraplegic, or
quadriplegic.
c) SBx1 26 (Bergeson), Chapter 14, Statutes of 1994,
codified the One-Strike Sex Law.
REGISTERED SUPPORT / OPPOSITION:
Support
The Arc and Cerebral Palsy California Collaboration
California District Attorneys Association
California State Lodge, Fraternal Order of Police
Crime Victims United
Junior League of California
Los Angeles County Professional Peace Officers Association
Long Beach Police Officers Association
Sacramento County Deputy Sheriffs' Association
San Diego County District Attorney
Santa Ana Police Officers Association
Opposition
American Civil Liberties Union of California
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744
AB 962
Page 16