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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