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, AB 1821 Page 2 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; AB 1821 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 1821 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. AB 1821 Page 5 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 Page 6 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 AB 1821 Page 7 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 AB 1821 Page 8 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 AB 1821 Page 9 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: ------------------------------------------------------------------------------- | | | | | | | | | | | | | | | ------------------------------------------------------------------------------- ------------------------------------------------------------------------------ |FY 2011/12 | | | | | ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ | Principal| Subordinate| Both | | | | | | | | | ------------------------------------------------------------------------------ |---------------+-------------------+------------------+------------------------| |PC § 261(a)(1) |4 |4 |8 | | | | | | AB 1821 Page 10 | | | | | |---------------+-------------------+------------------+------------------------| |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 | | | | | | | | | | | | | | | | ------------------------------------------------------------------------------- ------------------------------------------------------------------------------ |FY 2012/13 | | | | | ------------------------------------------------------------------------------ --------------------------------------------------------------------------- | Principal| Subordinate| Both | | | | | | | | | | | | | --------------------------------------------------------------------------- ------------------------------------------------------------------------------- |PC § 261(a)(1) |9 |4 |13 | | | | | | | | | | | ------------------------------------------------------------------------------- |PC §286(h) |0 |1 |1 | | | | | | | | | | | AB 1821 Page 11 ------------------------------------------------------------------------------- |PC § 286(g) |1 |1 |2 | | | | | | | | | | | ------------------------------------------------------------------------------- |PC § 288a(g) |3 |6 |9 | | | | | | | | | | | ------------------------------------------------------------------------------- |PC § 289(b) |1 |0 |1 | | | | | | | | | | | |---------------+-------------------+------------------+------------------------| |Totals |14 |12 |26 | | | | | | | | | | | | | | | | | | | | | | | | | | ------------------------------------------------------------------------------- ------------------------------------------------------------------------------ |FY 2013/14 | | | | | ------------------------------------------------------------------------------ --------------------------------------------------------------------------- | Principal| Subordinate| Both | | | | | | | | | | | | | --------------------------------------------------------------------------- ------------------------------------------------------------------------------- |PC § 261(a)(1) |5 |4 |9 | | | | | | | | | | | ------------------------------------------------------------------------------- |PC § 286(h) |0 |0 |0 | | | | | | | | | | | ------------------------------------------------------------------------------- |PC § 286(g) |1 |0 |1 | | | | | | AB 1821 Page 12 | | | | | ------------------------------------------------------------------------------- |PC § 288a(g) |1 |9 |10 | | | | | | | | | | | ------------------------------------------------------------------------------- |PC § 289(b) |3 |5 |8 | | | | | | | | | | | |---------------+-------------------+------------------+------------------------| |Totals |10 |18 |28 | | | | | | | | | | | | | | | | | | | | | | | | | | ------------------------------------------------------------------------------- ------------------------------------------------------------------------------ |FY 2014/15 | | | | | ------------------------------------------------------------------------------ --------------------------------------------------------------------------- | Principal| Subordinat| Both | | | e | | | | | | | | | | --------------------------------------------------------------------------- ------------------------------------------------------------------------------- |PC § 261(a)(1) |1 |7 |8 | | | | | | | | | | | ------------------------------------------------------------------------------- |PC §286(h) |0 |0 |0 | | | | | | | | | | | ------------------------------------------------------------------------------- |PC § 286(g) |0 |0 |0 | | | | | | | | | | | ------------------------------------------------------------------------------- |PC § 288a(g) |2 |1 |3 | AB 1821 Page 13 | | | | | | | | | | ------------------------------------------------------------------------------- |PC § 289(b) |3 |1 |4 | | | | | | | | | | | |---------------+-------------------+------------------+------------------------| |Totals |6 |9 |15 | | | | | | | | | | | | | | | | ------------------------------------------------------------------------------- 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 AB 1821 Page 14 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 AB 1821 Page 15 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 Page 16 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