BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 2199 (Campos) - Sexual offenses against minors: persons in a position of authority ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: August 1, 2016 |Policy Vote: PUB. S. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 1, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 2199 would define a two-year sentence enhancement where a defendant who committed a sex crime against a minor held a position of authority over the minor, as specified. Fiscal Impact: State prisons : Potentially significant future increase in state costs (General Fund) for longer prison sentences resulting from imposition of the two-year sentence enhancement, or alternatively, more upper term sentences being imposed. CDCR data indicates over 600 commitments to state prison in 2015 under the specified crimes potentially impacted by this measure. The number of inmates potentially subject to the sentence enhancement is unknown, but for every 5 percent of annual commitments potentially impacted, annual incarceration costs could increase over $500,000, cumulatively increasing to over $1 million annually thereafter. Staff notes the net cost increase due to the enhancement would be somewhat mitigated in part to the extent defendants that AB 2199 (Campos) Page 1 of ? otherwise would have been subject to an upper term sentence under existing law are instead sentenced to lower or middle terms in conjunction with the enhancement. Alternatively, more upper term sentences could result under a court's ability to impose the upper term if the enhancement is struck. County jails : Potential future increase in local incarceration costs (Local Funds/General Fund*) for longer county jail sentences resulting from the two-year sentence enhancement. Trial courts : Potential increase in court costs (General Fund**) for separate court trials as required to impose a sentence enhancement. Proposition 30* : Provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency, as specified, apply to local agencies only to the extent the State provides annual funding for the cost increase. Although legislation creating a new crime or revising the definition of an existing crime is exempt from Proposition 30 state funding requirements, legislation that changes the penalty for an existing crime is not similarly specifically exempt. The offenses specified in this measure are existing crimes against minors under state law. To the extent the two-year sentence enhancement to be imposed in specified cases is determined to change the penalty for these crimes, any increase in costs to local agencies attributable to provisions of this legislation could potentially require annual funding from the State. *Trial Court Trust Fund Background: Existing law provides that 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, punishable in county jail for up to one year or by imprisonment in county jail (or state prison if convicted of a current or prior serious or violent felony or offense requiring registration as a sex offender) for two, three, or four years. (Penal Code (PC) § 261.5 (d).) Existing law additionally provides for the following sex offenses against a minor: Sodomy, oral copulation, or sexual penetration when the AB 2199 (Campos) Page 2 of ? adult is 21 years of age or older, and the minor is under 16 years of age are felony offenses, punishable by imprisonment in state prison for 16 months, two years, or three years. (PC §§ 286(b)(2), 288a(b)(2), 289(i).) Lewd acts with a minor of 14 or 15 years old, when the adult is at least 10 years older than the minor. This offense is punishable as an alternate felony/misdemeanor, punishable in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. (PC § 288(c)(1).) This bill seeks to impose a sentence enhancement for the specific circumstance of holding a position of authority over a minor. Proposed Law: This bill would define a two-year sentence enhancement where a defendant who committed a sex crime against a minor held a position of authority over the minor. Specifically, this bill: Provides that any person who is found guilty of felony statutory rape (when the adult is 21 years of age or older, 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 imprisonment of two years. 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 imprisonment 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/misdemeanors): o Sexual penetration, oral copulation and sodomy when the adult is 21 years of age or older, and the minor is under 16 years of age. AB 2199 (Campos) Page 3 of ? o Lewd acts with a 14-15 year old when the adult is at least 10 years older than the minor. 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, youth leader, recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader, doctor, or employer of one of the aforementioned persons. Provides that for purposes of this measure, "undue influence" includes, but is not limited to, the use of affection, intimidation, coercion, or deceit, the taking, withholding, or bestowing of a reward or benefit, or the promise or threat to take, withhold, or bestow a benefit or reward. Related Legislation: None known. Staff Comments: This bill seeks to impose a sentence enhancement for a specific circumstance (holding a position of authority over a minor) that is in many cases inherent in the underlying crimes (sex offenses against a minor) and the basis for the punishment imposed under existing law. By defining a two-year sentence enhancement on a defendant who committed a sex crime against a minor and held a position of authority over the minor, this bill could potentially result in future increases in state and local incarceration costs should the measure result in longer prison and jail sentences. Statistics from the DOJ indicate nearly 1,500 felony arrests annually for each of the past three years and over 725 felony AB 2199 (Campos) Page 4 of ? convictions for the crimes specified in this measure that could potentially be subject to an additional two-year sentence enhancement. However, conviction data is unavailable on the number of these convictions that involved a defendant who held a position of authority over a minor. CDCR data indicates over 600 commitments to state prison in 2015 under the specified crimes subject to the two-year sentence enhancement. The number of commitments potentially impacted by the establishment of the sentence enhancement cannot be estimated with certainty given the numerous factors involved in charging and sentencing, including but not limited to judicial and prosecutorial discretion, the prior criminal history of the defendant, and the elements specific to each case. As applied in the context of existing sentencing law, it is unclear to what degree the sentence enhancement provided in this measure will have an impact on the prison sentences imposed in these cases. Under California Rule of Court 4.420(d), a fact that is an element of or inherent in an offense cannot be used as a factor in aggravation or an enhancement. As explained in the Senate Committee on Public Safety analysis of this measure, "It is another basic feature of California sentencing law that a fact used to impose an enhancement cannot be used to impose an upper term. An upper term is essentially considered a sentence enhancement. (PC § 1170 (b)) If a defendant was convicted of engaging in sexual conduct with a minor under the age of 16 and the prosecutor proved that the defendant occupied a position of authority, the court could impose the two-year enhancement described by this bill. However, the court could not likely impose an upper term based on the aggravating factor that the defendant "took advantage of a position of trust or confidence" to commit the crime, as that factor greatly overlaps with an enhancement based on the defendant's use of a position of authority to commit the crime. This is particularly likely because this bill defines a position of authority in terms of "undue influence over the minor." Alternatively, the establishment of the two-year sentence enhancement could potentially result in more upper term sentences being imposed. Under California Rule of Court AB 2199 (Campos) Page 5 of ? 4.420(c), "a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term." The Three-Judge Court has ordered the State to reduce its prison population to 137.5 percent of the prison system's design capacity by February 28, 2016. Pursuant to its February 10, 2014 order, the Court has ordered the CDCR to implement several population reduction measures, prohibited an increase in the population of inmates housed in out-of-state facilities, and indicated the Court will maintain jurisdiction over the State for as long as necessary to ensure that the State's compliance with the 137.5 percent final benchmark is durable, and that such durability is firmly established. Any future increases to the State's prison population challenge the ability of the State to reach and maintain such a "durable solution," and could require the State to pursue one of several options, including contracting-out for additional bed space or releasing current inmates earlier onto parole. Recommended Amendments: Staff recommends the following technical amendment to have a consistent definition of "position of authority" under both Penal Code sections being amended by this bill: On page 5, in line 3, strike "employer," On page 5, in line 4, strike "or employee" and insert "or employer" -- END -- AB 2199 (Campos) Page 6 of ?