BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 962


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          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.)








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          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;









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             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.









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               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  








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                 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  








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            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  








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            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).









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          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  








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            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                       |
              |               |                   |                  |                        |
              |               |                   |                  |                        |
               ------------------------------------------------------------------------------- 








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              |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                      |
              |               |                   |                  |                        |





                                                                           


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              |               |                   |                  |                        |
              |               |                   |                  |                        |
               ------------------------------------------------------------------------------- 
               ------------------------------------------------------------------------------ 
              |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                      |
              |               |                   |                  |                        |
              |               |                   |                  |                        |
              |               |                   |                  |                        |
              |               |                   |                  |                        |
              |               |                   |                  |                        |
               ------------------------------------------------------------------------------- 








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               ------------------------------------------------------------------------------ 
              |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  








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            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.









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          "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  








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               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


















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