BILL ANALYSIS Ó
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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