BILL ANALYSIS Ó
AB 1821
Page 1
Date of Hearing: March 15, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1821 (Maienschein) - As Introduced February 8, 2016
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,
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six, or eight years. (Pen. Code, § 264.)
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.
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ix) The defendant personally used a dangerous or deadly
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:10) Unknown
COMMENTS:
1)Author's Statement: According to the author, "Under AB 1821,
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 1821 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 1821
will allow for more equitable punishment for those who commit
heinous crimes against victims who do not have the ability to
protect themselves."
AB 1821
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2)Dual Use of Facts: "Although a single factor may be relevant
to more than one sentencing choice, such dual or overlapping
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
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functional limitation in three or more of the following
abilities: to care for one's self; to understand and express
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
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severe than those listed in subdivision (e).
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.
A recent report on the status of corrections notes:
"The Department's total adult inmate population as of December
9, 2015, was 127,468, of which 112,510 were housed in the
Department's adult institutions, and the remaining
14,958 were housed in fire camps or contract beds. The
December 9, 2015 institution
population was 136.0 percent of design capacity, or 1,212
inmates below the 137.5-percent
population cap based on currently constructed capacity. While
the activation of three infill
facilities will add capacity of 3,267, fall 2015 population
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projections estimate the total inmate
population will increase to 131,092 by June 2020, an increase
of 3,624 inmates over the
December 9, 2015 population. Therefore, without further
population reduction measures
or capacity, the state will not be able to further reduce the
use of contract beds, or close
state-owned facilities." (An Update to the Future of
California Corrections, January 2016, p. 25,
< http://www.cdcr.ca.gov/Blueprint-Update-2016/An-Update-to-the-
Future-of-California-Corrections-January-2016.pdf >.)
In other words, the state needs a "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).) However, the prison population is
currently projected to increase.
CDCR has informed this Committee that in in the last four
fiscal years (FY), there were the following admissions to
prison for the offenses targeted under this bill:
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|FY 2011/12 |
| |
| |
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| Principal| Subordinate| Both |
| | | |
| | | |
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|---------------+-------------------+------------------+------------------------|
|PC § 261(a)(1) |4 |4 |8 |
| | | | |
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| | | | |
|---------------+-------------------+------------------+------------------------|
|PC §286(h) |0 |0 |0 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|PC § 286(g) |1 |6 |7 |
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|PC § 288a(g) |3 |8 |11 |
| | | | |
| | | | |
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|PC § 289(b) |1 |0 |1 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|Totals |9 |18 |27 |
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| | | | |
| | | | |
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|FY 2012/13 |
| |
| |
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| Principal| Subordinate| Both |
| | | |
| | | |
| | | |
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|PC § 261(a)(1) |9 |4 |13 |
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| | | | |
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|PC §286(h) |0 |1 |1 |
| | | | |
| | | | |
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|PC § 286(g) |1 |1 |2 |
| | | | |
| | | | |
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|PC § 288a(g) |3 |6 |9 |
| | | | |
| | | | |
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|PC § 289(b) |1 |0 |1 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|Totals |14 |12 |26 |
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|FY 2013/14 |
| |
| |
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| Principal| Subordinate| Both |
| | | |
| | | |
| | | |
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|PC § 261(a)(1) |5 |4 |9 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC § 286(h) |0 |0 |0 |
| | | | |
| | | | |
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|PC § 286(g) |1 |0 |1 |
| | | | |
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| | | | |
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|PC § 288a(g) |1 |9 |10 |
| | | | |
| | | | |
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|PC § 289(b) |3 |5 |8 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|Totals |10 |18 |28 |
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|FY 2014/15 |
| |
| |
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| Principal| Subordinat| Both |
| | e | |
| | | |
| | | |
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|PC § 261(a)(1) |1 |7 |8 |
| | | | |
| | | | |
-------------------------------------------------------------------------------
|PC §286(h) |0 |0 |0 |
| | | | |
| | | | |
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|PC § 286(g) |0 |0 |0 |
| | | | |
| | | | |
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|PC § 288a(g) |2 |1 |3 |
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| | | | |
| | | | |
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|PC § 289(b) |3 |1 |4 |
| | | | |
| | | | |
|---------------+-------------------+------------------+------------------------|
|Totals |6 |9 |15 |
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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
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: According to the California Attorneys
for Criminal Justice (CACJ), "CACJ understands the needs to
protect those in our community who are handicapped or disabled
in some manner. Current law imposes very long prison
sentences on any individual who sexually assaults another
person, and Penal Code § 667.9 currently aggravates that
prison sentence if the victim is developmentally disabled.
"AB 1821 would dramatically increase the prison sentence for an
individual who sexually assaults the victim who is
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developmentally disabled as defined in section 667.9. There
is no requirement the defendant know he/she is assaulting a
person who is developmentally disabled. Hence, the new life
sentences in prison authorized by AB 1821 will be imposed on a
strict liability offense - a suspect's honest and legitimate
ignorance that the victim is developmentally disabled makes no
difference. Even if the crime is deemed to require the
suspect reasonably should have known that the victim was
developmentally disabled, plainly the suspect need not know -
it is enough that some imaginary 'reasonable' person would
have known.
"Some individuals who are developmentally disabled live in
community settings - institutional or otherwise - with other
developmentally disabled individuals. As occasional press
accounts have reported, one developmentally disabled resident
has sometimes engaged in sexual relations with another. As
the law provides that a developmentally disabled generally
cannot legally consent to sex, such sexual relations will
subject the developmentally disabled person who initiates sex
to life in prison. Indeed, under the amendment of section
667.61 proposed by AB 1821, if that developmentally disabled
person enters the separate room of the second developmentally
disabled person in a residential facility to have sex, the
'offender' will be subject to 'imprisonment in state prison
for life without the possibility of parole' as provided in
section 667.61, subdivision (l). There is no demonstrated need
for the changes proposed and no evidence the targeted crimes
will be deterred or that others will be any better protected."
3)Related Legislation:
a) AB 1272 (Grove) requires the court to make reasonable
efforts to avoid scheduling a case involving a crime
committed against a person with a developmental disability
when the prosecutor has another trial set. AB 1272 is
pending in the Senate Public Safety Committee.
b) AB 2606 (Grove) requires law enforcement agencies to
forward reports of alleged sexual assault and abuse
committed by individuals to whom state agencies issue
credentials, licenses, or permits to provide services to
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people with disabilities, children, elders, or dependent
adults, to the licensing agency. AB 2606 is pending
hearing in this Committee.
4)Prior Legislation:
a) AB 962 (Maienschein), of the 2015 Legislative session
was identical to this bill. AB 962 was held on the
Assembly Appropriations Committee suspense file.
b) AB 1335 (Maienschein), of the 2013-2014 Legislative
Session, also contained the same provisions as this bill.
AB 1335 was held on the Senate Appropriations Committee
suspense file.
c) AB 313 (Zettel), Chapter 569, Statutes of 1999, added
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.
d) SBx1 26 (Bergeson), Chapter 14, Statutes of 1994,
codified the One-Strike Sex Law.
REGISTERED SUPPORT / OPPOSITION:
Support
Arc and United Cerebral Palsy California Collaboration
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
Easter Seals
Los Angeles Police Protective League
Los Angeles Probation Officers Union
Los Angeles Professional Peace Officers Association
Riverside Sheriffs Association
San Diego County District Attorney
Opposition
AB 1821
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American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744