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
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|Version: August 1, 2016 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 1, 2016 |Consultant: Jolie Onodera |
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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
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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
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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.
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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
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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
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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"
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