BILL ANALYSIS Ó
AB 1821
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Date of Hearing: April 6, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
1821 (Maienschein) - As Introduced February 8, 2016
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill adds the crimes of rape, sexual penetration, sodomy,
and oral copulation committed against a person who is incapable
of giving legal consent due to a mental disorder or
developmental or physical disability to the list of offenses
which qualify for (a) application of the "One Strike Sex Law,"
and (b) vulnerable-victim enhancement.
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FISCAL EFFECT:
According to the California Department of Corrections (CDCR),
the contracted out-of-state bed rate is $29,000. Approximately
20 individuals are admitted under the targeted sex crimes
annually. If 10 percent were targeted for the specified
victims, the additional costs to CDCR for the enhancements would
be $87,000 (GF) the first additional year, $174,000 (GF) the
second year, etc. for each additional year added to the original
sentence.
COMMENTS:
1)Background. 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. 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, 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 a second category, or two or more circumstances
listed under the first category, then he or she will receive a
sentence of 25 years to life. The distinction is that the
aggravating circumstances listed in the second category are
more severe than those listed in first category.
Current law provides various sentencing enhancements if a
person commits specific sex crimes against a victim who is
incapable of giving legal consent due to a mental disorder or
developmental or physical disability, or meets specific age
AB 1821
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criteria.
1)Purpose. 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."
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.
2)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."
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3)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
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.
"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."
4)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
people with disabilities, children, elders, or dependent
adults, to the licensing agency. AB 2606 is pending in
Assembly Public Safety Committee.
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5)Prior Legislation:
a) AB 962 (Maienschein), of the 2015 Legislative session
was identical to this bill. AB 962 was held on this
Committee's 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.
Analysis Prepared by:Pedro Reyes / APPR. / (916)
319-2081
AB 1821
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