BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2088


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          Date of Hearing:  March 29, 2016
          Chief Counsel:     Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                      2088 (Linder) - As Introduced  March 28, 2016




          SUMMARY:  Requires the court to suspend the driving privilege  
          for six months or impose an appropriate period of community  
          service for any person who pleads guilty or nolo contendere to  
          hit and run with property damage if the charge is a substitute  
          or in satisfaction of the charge of hit and run resulting in  
          injury or death.  Specifically, this bill:  

          1)Provides that if the prosecution agrees to a plea of guilty or  
            nolo contendere to a charge of leaving the scene of an  
            accident resulting in property damage without stopping and  
            properly identifying himself or herself, in satisfaction of,  
            or a substitute for the charge of leaving the scene of an  
            accident resulting in injury or death without stopping and  
            properly identifying himself or herself, the prosecutor shall  
            state for the record the factual basis for the satisfaction or  
            substitution, including whether the defendant was involved in  
            an accident in which a person was injured.

          2)States that if the court accepts the defendant's plea of  
            guilty or nolo contendere to a charge of leaving the scene of  
            an accident resulting in property damage without stopping and  
            properly identifying himself or herself, and the prosecutor's  
            states that the driver of the vehicle was involved in an  








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            accident where a person was struck, the court shall  
            immediately suspend the convicted driver's privilege to  
            operate a motor vehicle for a period of six months or require  
            the convicted driver to complete community service as the  
            court deems appropriate.

          EXISTING LAW:  

          1)Provides that a court may suspend, for not more than six  
            months, the privilege of a person  to operate a motor vehicle  
            upon conviction of any of the following offenses:

             a)   Failure of a driver involved in an accident where  
               property is damaged to stop and exchange specified  
               information;

             b)   Reckless driving proximately causing bodily injury;

             c)   Failure of a driver to stop at a railroad crossing as  
               required;

             d)   Evading or fleeing from a peace officer in a motor  
               vehicle or upon a bicycle; and, 

             e)   Knowingly causing or participating in a vehicular  
               collision, or any other vehicular accident, for the purpose  
               of presenting or causing to be presented any false or  
               fraudulent insurance claim.  (Veh. Code, §13201.)   

          2)States that the Department of Motor Vehicles (DMV) immediately  
            shall revoke the privilege of a person to operate a motor  
            vehicle upon receipt of a duly certified abstract of the  
            record of a court showing that the person has been convicted  
            of any of the following crimes or offenses:

             a)   Failure of the driver of a vehicle involved in an  
               accident resulting in injury or death to stop or otherwise  
               comply, as specified;

             b)   A felony in which a motor vehicle is used, except as  
               specified; and,









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             c)   Reckless driving causing bodily injury.  (Veh. Code, §  
               13350, subd. (a).)

          3)Provides that the driver of any vehicle involved in an  
            accident resulting in damage to any property, including a  
            vehicle, shall immediately stop the vehicle and exchange  
            information, as specified, or leave in a conspicuous place on  
            the vehicle or other property damaged written notice giving  
            the name and address of the driver of the vehicle involved.   
            The failure to comply with these requirements is a misdemeanor  
            punishable by imprisonment in a county jail not to exceed six  
            months, or by a fine not to exceed $1,000, or by both a fine  
            and imprisonment.  (Veh. Code, § 20002.)

          4)Requires the driver of any vehicle involved in an accident  
            resulting in injury to any person, other than himself or  
            herself, or in the death of any person to immediately stop the  
            vehicle at the scene of the accident and to fulfill specified  
            requirements.  The failure to comply is  punishable by  
            imprisonment in the state prison for 16 months, two, or three  
            years, or by imprisonment in a county jail not to exceed one  
            year, or by a fine of not less than $1,000 nor more than  
            $10,000, or by both a fine and imprisonment.  If the accident  
            results in death or permanent, serious injury, the offense is  
            punishable by imprisonment in the state prison for two, three,  
            or four years, or in a county jail for not less than 90 days  
            nor more than one year, or by a fine of not less than $1,000  
            nor more than $10,000, or by both a fine and imprisonment.    
            (Veh. Code, § 20001, subds. (a) & (b).)

          5)Provides that a person who flees the scene of the crime after  
            committing vehicular manslaughter with gross negligence or  
            vehicular manslaughter while intoxicated, upon conviction for  
            that offense, in addition and consecutive to the punishment  
            prescribed, shall be punished by an additional term of  
            imprisonment of five years in the state prison.  Existing law  
            provides that this additional term shall not be imposed unless  
            the allegation is charged in the accusatory pleading and  
            admitted by the defendant or found to be true by the trier of  
            fact.  (Veh. Code, § 20001, subd. (c).)  

          6)Provides that every person convicted of vandalism or affixing  








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            graffiti, as specified, may be ordered by the court as a  
            condition of probation to perform community service not to  
            exceed 300 hours over a period not to exceed one year during a  
            time other than his or hers hours of school attendance or  
            employment.  (Pen Code, § 594.6, subd. (a).)

          FISCAL EFFECT:  Unknown



          COMMENTS:  

          1)Author's Statement:  According to the author, "There's no  
            question that hit-and-runs have reached epidemic proportions  
            in our state with California Highway Patrol (CHP) citing  
            nearly 79,000 total hit-and-run collisions in 2015 alone. This  
            is up from the 73,000 collisions reported in 2014. AB 2088 is  
            an effort to reduce the number of hit-and-runs and bring  
            justice to the victims by ensuring that offenders face  
            consequences for their reckless decisions.

          "When committing a hit-and-run carries fewer penalties than  
            driving under the influence, the choice to flee the scene of  
            an accident is tempting for drunk drivers especially since  
            their judgment is already impaired. California's weak penalty  
            structure for hit-and-runs must be corrected to deter  
            potential offenders, protect victims, and create greater  
            highway safety."

          2)Limits Court Discretion:  This bill requires the court to  
            suspend the driving privilege for six months or impose a an  
            appropriate period of community service for any person who  
            pleads guilty or nolo contendere to hit and run with property  
            damage if the charge is a substitute or in satisfaction of the  
            charge of hit and run resulting in injury or death.  

          Vehicle Code Section 13201 authorizes a court to suspend, for  
            not more than six months, the privilege of a person to operate  
            a motor vehicle upon conviction for failure of a driver  
            involved in an accident where property is damaged to stop and  
            exchange specified information.









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          Additionally, the court may impose any condition of probation  
            reasonably related to the offense and aimed at discouraging  
            such conduct in the future. (See People v. Lent (1975) 15 Cal.  
            3d 481, 486.)  The imposition of a period of community service  
            would be considered a valid condition of probation and well  
            within the courts discretion.

            This bill limits the court's discretion in that it requires  
            the court to either suspend the defendant's driving privilege  
            for six months or impose a period of community service.  Both  
            of which options the court may already exercise, in  
            appropriate cases, in the sound exercise of its discretion.

          3)Violates Apprendi v. New Jersey:  In this bill, in order for  
            the court to impose the additional sanction of, either, a six  
            month license suspension or community service, the prosecution  
            must state on the record the factual basis for the  
            substitution for the original charge, including whether the  
            defendant was involved in an accident in which a person was  
            injured.

          The Sixth amendment right to a jury trial applies to any factual  
            finding, other than that of a prior conviction, necessary to  
            warrant any sentence beyond the presumptive maximum. (Apprendi  
            v. New Jersey (2000) 530 U.S. 466, 490; Blakely v. Washington  
            (2004) 524 U.S. 296, 301, 303-304.)

          In Cunningham v. California (2007) 549 U.S. 270, the United  
            States Supreme Court held California's Determinate Sentencing  
            Law (DSL) violated a defendant's right to trial by jury by  
            placing sentence-elevating fact finding within the judge's  
            province.  (Id. at p. 274.)  The DSL authorized the court to  
            increase the defendant's sentence by finding facts not  
            reflected in the jury verdict.  Specifically, the trial judge  
            could find factors in aggravation by a preponderance of  
            evidence to increase the offender's sentence from the  
            presumptive middle term to the upper term and, as such, was  
            constitutionally flawed.  The Court stated, "Because the DSL  
            authorizes the judge, not the jury, to find the facts  
            permitting an upper term sentence, the sentence cannot  
            withstand measurement against our Sixth Amendment precedent."   
            (Id. at p. 293.)








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          In this bill, the additional punishment of a license suspension  
            or community service is triggered by a factual finding by the  
            court, based on a statement by the prosecution that the  
            defendant was involved in an accident and a person was injured  
            clearly violates the defendant's Sixth amendment right to a  
            jury trial as to the finding of that particular fact.

          4)Argument in Support:  According to Santa Monica Spoke, "As you  
            are well aware the number of hit-and-run incidents in  
            California has grown to epidemic proportions in the past few  
            years. In the Los Angeles area alone we know there are about  
            20,000 hit-and-run traffic incidents each year. We have long  
            been in support of legislation to stiffen penalties for this  
            crime that we feel represents a symptom of disconnect to  
            humanity in our communities. Victims of hit-and-runs are not  
            limited to just other motor vehicle drivers, but in fact  
            pedestrians and bicyclists who's injuries are more severe or  
            life threatening as more venerable road users. 

          "Current penalties for hit-and-runs do not reflect the  
            seriousness of the crime nor act as an effective deterrent. It  
            is unconscionable for instance that, under current law, it is  
            possible for hit-and-run drivers who leave their injured  
            victims on the side of the road to enter plea bargain  
            agreements whereby they evade punishment and are able to  
            return to their normal lives like nothing happened. 

          "As a society we must ensuring hit-and-run drivers face  
            consequences for their reckless inhumane decision to flee the  
            scene of an collision. AB 2088 will increase roadway safety,  
            bring justice to victims, and deter others from committing  
            hit-and-run crimes."

          5)Argument in Opposition:  According to the American Civil  
            Liberties Union, "AB 2088 would require a court to either  
            immediately suspend the driving privileges of all defendants  
            who plead guilty or nolo contendere to a violation of Vehicle  
            Code section 20002 under circumstances specified by the bill,  
            or require the convicted driver to complete community service  
            as the court deems appropriate. We believe that this bill  
            unnecessarily removes a court's discretion to suspend a  








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            defendant's driver's privilege in appropriate circumstances. 

          "Specifically, AB 2088 would require courts to immediately  
            suspend, for six months, the driver's privilege of any  
            defendant who pleads guilty or nolo contendere to a violation  
            of Vehicle Code section 20002 (failure to comply with  
            specified requirements in accidents resulting only in damage  
            to property) which was originally charged as a violation of  
            Vehicle Code section 20001 (failure to comply with specified  
            requirements in accidents resulting in injury to a person)  
            when the prosecution states for the record that the driver for  
            the vehicle was involved in an accident in  which a person was  
            struck. (See Vehicle §§ 20001, 20002.) Alternatively, the  
            court must require the convicted driver to complete community  
            service as the court deems appropriate. 

          "However, under current law, courts already have within their  
            discretion the ability to suspend, for six months, the  
            driver's privilege of any defendant convicted of a violation  
            of
            "Vehicle Code section 20002 - regardless of whether the  
            defendant was involved in an accident in which a person was  
            struck. (Vehicle Code § 13201.) Likewise, courts already have  
            discretion to order community service as a term of probation.  
            (Penal Code § 1203.1, subd. (j).) By requiring courts to  
            immediately suspend drivers' privileges in all cases in which  
            a defendant is convicted of a violation of Vehicle section  
            20002 under the circumstances specified by the bill or  
            otherwise order the convicted driver to complete community  
            service, AB 2088 unnecessarily an improperly strips courts of  
            their discretion."

          6)Prior Legislation:

             a)   AB 534 (Linder), of the 2015-2016 Legislative Session,  
               required the court to suspend the driving privilege for six  
               months of any person who pleads guilty or nolo contendere  
               to hit and run with property damage if the charge is a  
               substitute or in satisfaction of the charge of hit and run  
               resulting in injury or death.  AB 534 failed passage in the  
               Assembly Public Safety Committee.









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             b)   AB 1532 (Gatto), of the 2013-2014 Legislative Session,  
               would have required that the privilege to operate a motor  
               vehicle shall be suspended for six months for any person  
               convicted of being a driver of a vehicle involved in an  
               accident where a person is struck, but not injured, and the  
               driver of the vehicle leaves the scene of the accident  
               without exchanging required information, as specified.  AB  
               1532 was vetoed by the Governor.

             c)   AB 2337 (Linder), of the 2013-2014 Legislative Session,  
               would have increased from one to two years the mandatory  
               suspension of the privilege to operate a motor vehicle for  
               any person convicted of leaving the scene of an accident  
               resulting in injury or death without exchanging required  
               identification information.  AB 2337 was vetoed by the  
               Governor. 

          REGISTERED SUPPORT / OPPOSITION:

          Support

          American Motorcyclist Association
          Crime Victims United of California
          Association for Los Angeles Deputy Sheriffs
          Los Angeles Police Protective League
          Riverside Sheriffs' Association
          Walk and Bike Mendocino
          West Hollywood Bicycle Coalition
          Santa Monica Spoke
          Streets Are For Everyone
          Los Angeles Walks
          Los Angeles County Bicycle Coalition
          Forged By Fire Coalition





          Opposition

          American Civil Liberties Union
          California Attorney for Criminal Justice








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          California Public Defenders Association
          
          Analysis Prepared  
          by:              Gregory Pagan / PUB. S. / (916) 319-3744