BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2888       Hearing Date:    June 28, 2016    
          
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          |Author:    |Low, Dodd                                            |
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          |Version:   |June 21, 2016                                        |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|AA                                                   |
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                  Subject:  Sex Crimes:  Mandatory Prison Sentence



          HISTORY

          Source:   Santa Clara County District Attorney

          Prior Legislation:None

          Support:  Crime Victims United of California

          Opposition:American Civil Liberties Union; California Public  
          Defenders Association

          Assembly Floor Vote:                 Not Applicable


          PURPOSE

          The purpose of this bill is to prohibit probation in certain  
          felony sex crimes.

          Current law provides that probation shall not be granted to, nor  
          shall the execution or imposition of sentence be suspended for,  
          any person who is convicted of violating the following crimes:

                 Forcible sexual intercourse (Penal Code  261(a)(2) or  
               (6); 







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                 In concert sexual assault (Penal Code  264.1);
                 Pimping and pandering (Penal Code  266h and 266i);
                 Procuring or obtaining a minor under the age of 16 for  
               lewd and lascivious act (Penal Code  266j)
                 Aggravated sexual assault of a child under 14 (Penal  
               Code  269)
                 Forcible or in concert sodomy( Penal Code  286(c)(2),  
               (3) or (d)); 
                 Forcible or in concert oral copulation (Penal Code   
               288a(c)(2),(3) or (d)); 
                 Sexual intercourse or sodomy of a child 10 or younger  
               (Penal Code  288.7);
                 Forcible foreign object sexual penetration (Penal Code   
               289(a)); or
                 Making child pornography (Penal Code  311.4 (b)).

          (Penal Code  1203.065(a).)

          Current law provides that "(e)xcept in unusual cases where the  
          interests of justice would best be served if the person is  
          granted probation, probation shall not be granted to any person  
          who is convicted of" the following crimes:



                 Rape by threat of use of public official authority  
               (Penal Code  261 (a)(7)); 
                 Sodomy by threat of use of public official authority  
               (Penal Code  286(k));
                 Oral copulation by threat of use of public official  
               authority (Penal Code  28a(k));  subdivision Foreign  
               object sexual penetration by threat of use of public  
               official authority (Penal Code  289(g)); or 
                 Assault with intent to commit a specified sexual  
               offender (Penal Code  220).

          (Penal Code  1203.056(b)(1).)

          Current law provides that when probation is granted under this  
          subdivision, "the court shall specify on the record and shall  
          enter on the minutes the circumstances indicating that the  
          interests of justice would best be served by the disposition.)   
          (Penal Code  1203.065(b)(2).









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          This bill would provide that the following additional crimes  
          would be ineligible for probation under subdivision (a) of Penal  
          Code section 1203.065, cited above:

                 Forcible sexual intercourse where the victim is  
               prevented from resisting by any intoxicating or anesthetic  
               substance, or any controlled substance, and this condition  
               was known, or reasonably should have been known by the  
               accused (Penal Code  261(a)(3));
                 Forcible sexual intercourse where the victim is at the  
               time unconscious of the nature of the act, and this is  
               known to the accused (Penal Code  261(a)(3));
                 Sodomy where the victim is at the time unconscious of  
               the nature of the act and this is known to the person  
               committing the act (Penal Code  286(f));
                 Sodomy where the victim is prevented from resisting by  
               an intoxicating or anesthetic substance, or any controlled  
               substance, and this condition was known, or reasonably  
               should have been known by the accused (Penal Code   
               286(i));
                 Oral copulation where the victim is at the time  
               unconscious of the nature of the act and this is known to  
               the person committing the act (Penal Code  288a(f));
                 Oral copulation where the victim is prevented from  
               resisting by any intoxicating or anesthetic substance, or  
               any controlled substance, and this condition was known, or  
               reasonably should have been known by the accused (Penal  
               Code  288a(i));
                 Foreign object sexual penetration when the victim is  
               prevented from resisting by any intoxicating or anesthetic  
               substance, or any controlled substance, and this condition  
               was known, or reasonably should have been known by the  
               accused (Penal Code  289(e)); or
                 Foreign object sexual penetration when the victim  
               submits under the belief that the person committing the act  
               or causing the act to be committed is someone known to the  
               victim other than the accused, and this belief is induced  
               by any artifice, pretense, or concealment practiced by the  
               accused (Penal Code  289(f).)

          This bill would make additional technical revisions to this  
          section, as specified.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION








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          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing 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 December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 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).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 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 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  








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          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).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

                 Whether a proposal erodes a measure which has  
               contributed to reducing the prison population;

                 Whether a proposal addresses a major area of public  
               safety or criminal activity for which there is no other  
               reasonable, appropriate remedy;

                 Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 

                 Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and

                 Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.



          COMMENTS

          1.Stated Need for This Bill

          The author states:

               In March 2015, a Stanford University student was  
               convicted on 3 felony counts of sexual assault of an  
               intoxicated and unconscious woman. Despite the fact  
               that the defendant was eligible for a sentence of up  
               to 14 years in prison, the trial judge sentenced the  
               defendant to 6 months in jail and 3 years' probation.  
               The sentence has been justifiably criticized by many  
               as unethically lenient, given the horrific nature of  
               the crime. However, while the judge's decision has  
               been viewed as morally wrong and inappropriate, such a  
               decision was within the judge's legal discretion, and  
               therefore complied with the rules of court.








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               Each year, nearly 300,000 people are sexually  
               assaulted in the United States. Unfortunately, many of  
               these assaults involve individuals who are under the  
               influence of alcohol or other substances. Women in  
               college are 3 times more likely to experience sexual  
               violence than women not enrolled, and at least 50% of  
               sexual assaults involve alcohol intoxication.  Studies  
               have shown more than 55% of those assaulted consumed  
               alcohol at the time of the assault, and more than 75%  
               of those perpetrating the assault also consumed  
               alcohol. 

               The majority of felony sexual assault crimes fall into  
               two sentencing categories: "Presumptive Ineligibility  
               of Probation" [PIP] or "Mandatory Denial of Probation"  
               [MDP]. If a crime triggers a PIP situation, the court  
               may grant probation if it finds and notes on the  
               record an unusual circumstance, out of those listed  
               under Judicial Rule 4.413.

               However, not all forms of sexual assault involving  
               penetration are included in the list of offenses that  
               would trigger a mandatory denial of probation. Current  
               law clarifies that a defendant's use of force triggers  
               a mandatory prison sentence. However, when a victim is  
               unconscious or severely intoxicated, the victim is  
               unable to resist, and the perpetrator does not have to  
               use force. This distinction between assault  
               accomplished through force or predatory behavior  
               provides courts the discretion to sentence  
               perpetrators of sexual assault against intoxicated and  
               unconscious victims to probation, which may include  
               little or no jail time. 

               Under this interpretation of the law, a perpetrator at  
               a college party who chooses to forcibly rape a  
               conscious victim will go to prison.  However, a  
               different perpetrator at the same party who chooses to  
               watch and wait for a victim to pass out from  
               intoxication before sexually assaulting her may get  
               probation. Whether penetration is accomplished through  
               physical aggression [force] or predatory behavior is a  
               distinction without a difference. Both perpetrators  








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               seek prey that are vulnerable; disadvantaged by  
               his/her capacity to resist. Both perpetrators  
               represent a danger to the community.  Additionally,  
               the aftermath suffered by an unconscious victim or a  
               victim incapable of giving consent due to intoxication  
               is not ameliorated by the absence of memory.  Indeed,  
               the fear and terror that accompanies the absence of  
               memory of a known sexual assault should not be viewed  
               as less serious than the fear and terror that a victim  
               experiences during a recalled forcible sexual assault.

               AB 2888 would amend Penal Code  1203.065 to include  
               to the list of offenses that are ineligible for  
               probation, all sexual assaults felonies perpetrated  
               against intoxicated and unconscious victims.

          



          2.  Recent Gut and Amend

          Until June 16th and as passed out of the Assembly, this  
          bill pertained to the Department of Food and Agriculture,  
          concerning the expenditure of $100,000 "for any exhibit or  
          exhibits located on any state-supported fair demonstrating,  
          in a creative and innovative manner, the process of  
          production and use of food and fiber from the producer to  
          the consumer in this state," and the annual provision of a  
          "conference of fair judges" to help the department with  
          regulations, as specified.

          On June 16th, the bill was amended to the general subject  
          matter of the bill now before the Committee.  

          The bill before the Committee was amended on June 21st.

          3.  What This Bill Would Do; Policy Considerations

          As explained in detail above, this bill would prohibit  
          probation for certain sex offenses.  Under current law, the  
          crimes affected by this bill are prison felonies.  Current  
          law generally authorizes judges to suspend imposition of a  
          felony sentence and impose terms and conditions of  








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          probation.  If any of those terms or conditions is  
          violated, probation is revoked and the defendant is  
          committed to prison.  There are several crimes,  
          particularly sex crimes, for which probation is prohibited,  
          or for which probation is granted only if the court makes  
          certain findings.  These provisions are not set forth in  
          one section, although one of them is the section this bill  
          would amend.   

          Members and the authors may wish to discuss whether  
          prohibiting probation as a matter of law in crimes targeted  
          by this bill - where, for example, a victim may not have  
          witnessed the crime because they were unconscious - could  
          make it more difficult for prosecutors to obtain  
          convictions in cases that might be difficult to prevail in  
          at trial.  In other words, members may wish to consider  
          whether a statutory prohibition could result in justice not  
          being done in some cases - for example, charges having to  
          be dropped in order to be able to reach a plea, or a  
          defendant being acquitted at trial.   

          WOULD THIS BILL LIMIT THE ABILITY OF PROSECUTORS TO  
          NEGOTIATE PLEAS IN DIFFICULT CASES? 

          WOULD THIS BILL RESULT IN PLEAS THAT DO NOT FULLY REFLECT  
          WHAT HAPPENED TO A VICTIM?

          WOULD THIS BILL PROMOTE THE INTERESTS OF JUSTICE?

          Members also may wish to discuss whether there would be no  
          conceivable set of facts and circumstances where in a  
          felony conviction for the crimes targeted by this bill the  
          suspension of the execution of judgment and the imposition  
          of terms and conditions of probation could be appropriate.

          IS THERE NO CONCEIVABLE SET OF FACTS AND CIRCUMSTANCES  
          WHERE JUDICIAL DISCRETION IN THESE CASES WOULD BE  
          APPROPRIATE?   



          As noted above, current law provides what is essentially a  
          presumption against the granting of probation in certain  
          cases unless the court makes certain findings.  That  








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          mechanism is in subdivision (b) of the section this bill  
          would amend.  Members may wish to consider whether this  
          approach, notwithstanding the application of this  
          subdivision in any particular case, would better address  
          the broader concerns of policymakers without risking the  
          inadvertent consequences described above.

          SHOULD THIS BILL BE AMENDED TO PROVIDE THAT THESE CRIMES  
          CAN ONLY BE GRANTED PROBATION IN "UNUSUAL CASES WHERE THE  
          INTERESTS OF JUSTICE WOULD BE BEST SERVED IF THE PERSON IS  
          GRANTED PROBATION"?

          4.  Drafting Error?

          As noted by the author, in the Stanford swimmer case the  
          defendant was convicted of three felonies: assault with  
          intent to commit a felony, foreign object rape (victim  
          intoxicated) and foreign object rape (victim unconscious).

          This bill adds several crimes to the list of offenses for  
          which probation is prohibited.  It does not add the crime  
          of foreign object rape where the victim is unconscious  
          (Penal Code  289(d).)  It is assumed that this is a  
          drafting error the authors would intend to correct in  
          Committee.  

          5.  Support

          The Crime Victims United of California supports this bill,  
          stating in part:

               CVUC was dismayed earlier this year when a Stanford  
               University student was convicted on three felony  
               counts of sexual assault of an intoxicated and  
               unconscious woman, but only sentenced to six months in  
               jail and probation for three years. This deplorable  
               act was eligible - and deserving - of a sentence of up  
               to 14 years in prison; however, the trial judge  
               ultimately imposed the less onerous sentence. 

               While the sentence was indeed within the legal  
               discretion of the judge, CVUC strongly believes it was  
               an unethical blow to justice for the victim. In  
               California each year we stand in support of victims of  








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               sexual assault and vow to eliminate such activity  
               through occasions like Denim Day. If we intend to hold  
               true, we must hold these offenders accountable with  
               sentences that match the severity of the crime and  
               help bring a sense of true justice to victims.  

          6.  Opposition

          The American Civil Liberties Union opposes this bill,  
          stating in part:

               AB 2888 appears to be a hastily-drafted response to  
               the Stanford rape case. Public outrage over the  
               sentence imposed in a single case should not result in  
               the Legislature rushing to reduce courts' discretion  
               across the board. The impact of limiting judicial  
               discretion in this fashion will fall primarily on  
               minorities and the economically disadvantaged, who are  
               much more likely to be charged with crimes than the  
               type of defendant involved in the Stanford case.



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