BILL ANALYSIS Ó AB 2088 Page 1 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 AB 2088 Page 2 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, AB 2088 Page 3 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 AB 2088 Page 4 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. AB 2088 Page 5 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.) AB 2088 Page 6 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 AB 2088 Page 7 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. AB 2088 Page 8 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 AB 2088 Page 9 California Public Defenders Association Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744