BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                    AB 2199


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          Date of Hearing:  April 19, 2016
          Counsel:               Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                        2199 (Campos) - As Amended  April 7, 2016


                       As Proposed to be Amended in Committee 


          SUMMARY:  Specifies that persons who commit specified sex  
          offenses involving minors shall be subject to an additional  
          two-year sentence enhancement if the offender is a person in a  
          "position of authority" over the victim, as specified.   
          Specifically, this bill:  


          1)Defines an offender in a "position of authority" over a victim  
            as "a person, by reason of that position, is able to exercise  
            undue influence over a minor."  A position of authority  
            includes, but is not limited to, a stepparent, foster parent,  
            partner of the parent, caretaker, youth leader, recreational  
            director, athletic manager, coach, teacher, counselor,  
            therapist, religious leader, doctor, employer, or employee of  
            one of the aforementioned persons.  


          2)Provides that any person who is found guilty of felony  
            statutory rape (when the adult is 21 years of age or older,  











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            and the minor is under 16 years of age) who holds a "position  
            of authority" over the minor is subject to an additional term  
            of two-years.  


          3)Provides that any person who is found guilty of the following  
            acts who holds a "position of authority" over the victim is  
            subject to an additional term of two-years in state prison if  
            convicted of the felony offense in lieu of the alternate  
            misdemeanor offense (when the offenses are alternate  
            felony/misdemeanor "wobblers"):


             a)   Sexual penetration (when the adult is 21 years of age or  
               older, and the minor is under 16 years of age)  


             b)   Sodomy (when the adult is 21 years of age or older, and  
               the minor is under 16 years of age).    


             c)   Lewd acts (with a 14-15 year old when the adult is 10  
               years older or more).  


             d)   Oral copulation (when the adult is 21 years of age or  
               older, and the minor is under 16 years of age).    


          EXISTING LAW:  


          1)Specifies that "unlawful sexual intercourse" is an act of  
            sexual intercourse accomplished with a person who is not the  
            spouse of the perpetrator, if the person is a minor. For the  
            purposes of this section, a "minor" is a person under the age  
            of 18 years and an "adult" is a person who is at least 18  
            years of age.  (Pen. Code, § 261.5, subd. (a).)  












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             a)   Any person who engages in an act of unlawful sexual  
               intercourse with a minor who is not more than three years  
               older or three years younger than the perpetrator, is  
               guilty of a misdemeanor.  (Pen. Code, § 261.5, subd. (b),  
               emphasis added.)  

             b)   Any person who engages in an act of unlawful sexual  
               intercourse with a minor who is more than three years  
               younger than the perpetrator is guilty of either a  
               misdemeanor or a felony, and shall be punished by  
               imprisonment in a county jail not exceeding one year, or by  
               imprisonment for 16 months, two, or three years in the  
               county jail for a violation of the felony provision.  (Pen.  
               Code, § 261.5, subd. (c), emphasis added.)  

             c)   Any person 21 years of age or older who engages in an  
               act of unlawful sexual intercourse with a minor who is  
               under 16 years of age is guilty of either a misdemeanor or  
               a felony, and shall be punished by imprisonment in a county  
               jail not exceeding one year, or by imprisonment in county  
               jail for two, three, or four years.  (Pen. Code, § 261.5,  
               subd. (d), emphasis added.)  

          2)Provides that any person who willfully and lewdly commits any  
            lewd or lascivious act, including any of the acts constituting  
            other crimes as provided, upon or with the body, or any part  
            or member thereof, of a child who is under the age of 14  
            years, with the intent of arousing, appealing to, or  
            gratifying the lust, passions, or sexual desires of that  
            person or the child, is guilty of a felony and shall be  
            punished by imprisonment in the state prison for three, six,  
            or eight years.  (Pen. Code § 288, subd. (a).)  Any person  
            convicted shall be imprisoned in the state prison for life  
            with the possibility of parole if the defendant personally  
            inflicted bodily harm upon the victim.  The penalty provided  
            in this subdivision shall only apply if the fact that the  
            defendant personally inflicted bodily harm upon the victim is  
            pled and proved.  As used in this subdivision, "bodily harm"  
            means any substantial physical injury resulting from the use  











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            of force that is more than the force necessary to commit the  
            offense.  (Pen. Code § 288 subd. (i).)  

             a)   States that any person who commits these acts by use of  
               force, violence, duress, menace, or fear of immediate and  
               unlawful bodily injury on the victim or another person, is  
               guilty of a felony and shall be punished by imprisonment in  
               the state prison for 5, 8, or 10 years.  (Pen. Code § 288,  
               subd. (b)(1).)  

             b)   Provides that any person who is a caretaker and commits  
               these acts upon a dependent person by use of force,  
               violence, duress, menace, or fear of immediate and unlawful  
               bodily injury on the victim or another person, with the  
               intent described in is guilty of a felony and shall be  
               punished by imprisonment in the state prison for 5, 8, or  
               10 years.  (Pen. Code § 288, subd. (b)(2).)  

             c)   Provides that any person who commits a lewd or  
               lascivious act with the intent described, and the victim is  
               a child of 14 or 15 years, and that person is at least 10  
               years older than the child, is guilty of a public offense  
               and shall be punished by imprisonment in the state prison  
               for one, two, or three years, or by imprisonment in a  
               county jail for not more than one year. In determining  
               whether the person is at least 10 years older than the  
               child, the difference in age shall be measured from the  
               birth date of the person to the birth date of the child.   
               (Pen. Code § 288, subd. (c)(1).)  

             d)   States that any person who is a caretaker and a lewd or  
               lascivious act with the intent described upon a dependent  
               person, is guilty of a public offense and shall be punished  
               by imprisonment in the state prison for one, two, or three  
               years, or by imprisonment in a county jail for not more  
               than one year.  (Pen. Code § 288, subd. (c)(2).)  

          FISCAL EFFECT:  Unknown












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          COMMENTS: 


          1)Author's Statement:  According to the author, "Statutory rape  
            cases are often misconceived as a consensual relationship  
            between an adult and a minor.  The perpetrator often has great  
            influence over his or victim; this is especially true when the  
            offender is in a position of authority, particularly a coach  
            or a teacher.  And although the victims may deny harm,  
            researchers argue that many of these youth often have delayed  
            reactions and later come to realize the inherent power  
            difference in the relationship.  These situations can lead to  
            negative effects for the victims.  This includes an increased  
            risk for unintended pregnancies, contraction of sexually  
            transmitted infections, delinquency, and long-term  
            psychological effects among adolescents.  


            "People in a position of authority know their victims ages as  
            well as their vulnerability.  Therefore, when perpetrators are  
            in a position of authority, they should be punished  
            accordingly.  AB 2199 would assist in this effort by providing  
            prosecutors the discretion of a sentence enhancement for  
            adults charged with felony statutory rape." 

          2)Existing Penalties for these Offenses:  Under existing law  
            "unlawful sexual intercourse" (also known as "statutory rape")  
            and lewd and lascivious acts are both punished on a scale  
            depending on the conduct of the perpetrator, and the  
            respective ages of the defendant and the victim of the crime.   



            The entire concept of making these non-forcible crimes illegal  
            is that the minors involved do not have the capacity to  
            consent to sexual acts.  The purpose of these laws is to  
            protect children from adults, who are by their age in a  
            position of authority over the minors involved.  The reason  











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            that these crimes are punished as severely as they are under  
            existing law is that these offenders are taking advantage of  
            minors who are too young to make the decision to engage in  
            sexual acts.  This bill seeks to add a sentence enhancement  
            for persons in a position of authority, but the underlying  
            legislation and the prescribed punishments as they currently  
            exist were created for that very reason.  


            Additionally, there are a number of criminal offenses from  
            forcible rape to simple sexual assault which carry a wide  
            range of penalties from misdemeanor to life in state prison.   
            For the specific sections this bill is seeking to add a  
            sentence enhancement to, the following penalties apply:  


             a)   Non-forcible, unlawful sexual intercourse (between a  
               defendant 21 years or older, and a victim under 16 years)  
               is punishable as a misdemeanor (year in the county jail) or  
               a felony carrying two, three, or four years in county jail.  
                This bill would add an additional two years in county jail  
               to any felony sentence if the defendant is in a position of  
               authority over the victim.  


             b)   Sexual penetration (when the adult is 21 years of age or  
               older, and the minor is under 16 years of age) is  
               punishable as a felony carrying 16 months, two, or three  
               years in state prison.  This bill would add an additional  
               two years in state prison if the defendant is in a position  
               of authority over the victim.  


             c)   Sodomy (when the adult is 21 years of age or older, and  
               the minor is under 16 years of age) is punishable as a  
               felony carrying 16 months, two, or three years in state  
               prison.   This bill would add an additional two years in  
               state prison to any felony sentence if the defendant is in  
               a position of authority over the victim.  











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             d)   Lewd acts (with a 14-15 year old when the adult is 10  
               years older or more) is punishable as a misdemeanor (year  
               in the county jail) or a felony carrying one, two, or three  
               years in state prison.  This bill would add an additional  
               two years in state prison to any felony sentence if the  
               defendant is in a position of authority over the victim.  


             e)   Oral copulation (when the adult is 21 years of age or  
               older, and the minor is under 16 years of age) is  
               punishable as a felony carrying 16 months, two, or three  
               years in state prison.   This bill would add an additional  
               two years in state prison to any felony sentence if the  
               defendant is in a position of authority over the victim.  


          3)On-Going Concerns for Prison Overcrowding: 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. 





            In February of last year the administration reported that as  
            "of February 11, 2015, 112,993 inmates were housed in the  
            State's 34 adult institutions, which amounts to 136.6% of  











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            design bed capacity, and 8,828 inmates were housed in  
            out-of-state facilities.  This current population is now below  
            the court-ordered reduction to 137.5% of design bed capacity."  
             (Defendants' February 2015 Status Report In Response To  
            February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
            Court, Coleman v. Brown, Plata v. Brown (fn. omitted).





            While significant gains have been made in reducing the prison  
            population, the state now must stabilize these advances and  
            demonstrate to the federal court that California has in place  
            the "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, even though the state has complied with the federal  
            court order, the prison population needs to be maintained, not  
            increased.  And according to the Legislative Analyst's Office  
            (LAO), "CDCR is currently projecting that the prison  
            population will increase by several thousand inmates in the  
            next few years and will reach the cap by June 2018 and exceed  
            it by 1,000 inmates by June 2019."  
            (  http://www.lao.ca.gov/reports/2014/budget/criminal-justice/cri 
            minal-justice-021914.aspx  .)  The LAO also notes that  
            predicting the prison population is "inherently difficulty"  
            and subject to "considerable uncertainty."  (Ibid.)   
            Nevertheless, creating a new exclusion for county jail  
            sentences when the prison population is already expected to  
            increase seems imprudent.
            This bill would add a two-year sentence enhancement to  
            violations of Pen. Code § 288, which are served in state  
            prison.  These sentence enhancements are to be served after  











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            the underlying criminal penalties which range from three years  
            in state prison, to ten years in state prison.  Additionally,  
            if the victim sustains bodily harm during the commission of  
            the offense, than the defendant can already receive a life  
            sentence.  


          4)Criminal Penalty Increases:  Over the last few years, Governor  
            Brown has vetoed bills that create new crimes or particularize  
            otherwise prohibited conduct.  This bill would go much  
            farther, by actually creating sentence enhancements which are  
            served after the time prescribed by the underlying offense.   
            Additionally, depending on the offense, some of these  
            enhancements are intended to be served in the county jail, and  
            others in state prison.  Both our jails and prisons are  
            currently overcrowded.  
            Governor Brown said, in a blanket veto message sent October 3,  
            2015 which returned nine bills, "Each of these bills creates a  
            new crime - usually by finding a novel way to characterize and  
            criminalize conduct that is already proscribed.  This  
            multiplication and particularization of criminal behavior  
            creates increasing complexity without commensurate benefit.



            "Over the last several decades, California's criminal code has  
            grown to more than 5,000 separate provisions, covering almost  
            every conceivable form of human misbehavior.  During the same  
            period, our jail and prison populations have exploded.

            "Before we keep going down this road, I think we should pause  
            and reflect on how our system of criminal justice could be  
            made more human, more just and more cost-effective."
          5)Argument in Support:  According to the California Police  
            Chiefs Association, "AB 2199 would subject any person 21 years  
            of age or older who engages in an act of unlawful sexual  
            intercourse with a minor who is under 16 years of age to a  
            sentence enhancement of 2 years, if the perpetrator holds a  
            position of authority over the minor with whom he or she  











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            engaged in the act of unlawful sexual intercourse.  


            "By strengthening our laws to protect children from those who  
            would use their influence and authority for exploitive  
            purposes, our judicial system will now have an added tool to  
            combat these crimes."   


          6)Argument in Opposition:  According to The American Civil  
            Liberties Union, "The American Civil Liberties Union of  
            California regrets to inform you of our opposition to AB 2199,  
            a bill that provides additional sentence enhancements for  
            individuals convicted of certain crimes involving minors if  
            the accused person was "in a position of authority" as  
            defined. In light of existing law regulating such conduct, the  
            changes proposed by AB 2199 appear unnecessary and  
            counterproductive.  


            "While the intent of AB 2199 appears to be to provide greater  
            protection for minors, research has shown that more severe  
            sentences do not actually enhance public safety.<1> Studies  
            have concluded that the severity of punishment does not  
            generally have an increased effect on deterrence.<2> Rather,  
            researchers have found that certainty of punishment - that  
            someone will be punished for a particular crime - has a  
            greater deterrent effect than the severity of the punishment  
            itself.<3>  


            "California law already provides significant punishments for  
            --------------------------


          <1> Valerie Wright, Deterrence in Criminal Justice: Evaluating  
          Certainty vs. Severity of Punishment (Sentencing Project 2010)  
          available at  
          http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf 

          <2> Id. 
          <3> Id.








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            the crimes listed in AB 2199. Under existing statutes, a  
            person who is 21 years of age or older that has unlawful  
            sexual intercourse with a person who is under age 16 can be  
            punished with up to four years in custody.  (Penal Code,  
            §261.5(d).)  If the conduct involves evidence of force, duress  
            or coercion, then the offense is punished under other statutes  
            with much lengthier sentences. Similarly, under existing law,  
            a person who commits a lewd act on a minor under 14 years of  
            age can be punished with up to eight years in state prison and  
            more if duress, force or coercion are involved. (Penal Code,  
            §288(a) and (b).) These punishments can be further enhanced by  
            a myriad of existing sentence enhancements. 


            "Indeed, Governor Brown has criticized our state's criminal  
            laws, particularly the number of sentencing enhancements,  
            observing, "[t]here are now 400 separate enhancements that can  
            add up to 25 years, each one of them, and now you have over  
            5,000 separate criminal provisions."<4> As the Governor stated  
            in his veto message of several bills last fall, "[t]his  
            multiplication and particularization of criminal behavior  
            creates increasing complexity without commensurate  
            benefit."<5>


            "Additionally, now is not the time for California to be adding  
            longer prison sentences to crimes, particularly when it is not  
            clear that these longer sentences will have any greater  
            deterrent effect.  Corrections spending remains high; the  
            --------------------------


          <4> Scott Shafer, Prosecutors Cry Foul Over Jerry Brown's Ballot  
          Measure, KQED, Feb. 12, 2016, available at  
           http://ww2.kqed.org/news/2016/02/12/prosecutors-cry-foul-over-jer 
          ry-browns-ballot-measure  
          <5>Patrick McGreevy, With Strong Message Against Creating New  
          Crimes, Gov. Brown Vetoes Drone Bills, LA Times, Oct. 3, 2015,  
          available at  
           http://www.latimes.com/politics/la-me-pc-gov-brown-vetoes-bills-r 
          estricting-hobbyist-drones-at-fires-schools-prisons-20151003-stor 
          y.html  








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            Governor's proposed 2016-17 provides $11.2 billion for adult  
            corrections and an additional $1.2 billion for other parts of  
            the state corrections system.<6>  Rather than enacting new,  
            longer penalties, the Legislature should strive to simplify  
            the state's complex Penal Code, unless longer sentences are  
            truly necessary.  While protecting minors from victimization  
            is an extremely important objective, we believe that  
            lengthening sentences for the offenses referenced in this bill  
            will not accomplish that goal.  For these reasons, we must  
            oppose AB 2199." 





          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Police Chiefs Association 


          Child Abuse Prevention Center 


          Crime Victims United of California 


          ---------------------------
          <6> Scott Graves, Corrections Spending Remains High Under  
          Governor's Proposed Budget, Despite Big Drop in Correctional  
          Populations (California Budget and Policy Center 2016) available  
          at  
          http://calbudgetcenter.org/wp-content/uploads/Corrections-Spendin 
          g-Remains-High-Under-the-Governor%E2%80%99s-Proposed-Budget-Despi 
          te-Big-Drop-in-Correctional-Populations.pdf










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          Opposition


          American Civil Liberties Union 


          Legal Services for Prisoners with Children 
            
          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744