BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 2888 (Low) - Sex crimes: mandatory prison sentence
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|Version: August 2, 2016 |Policy Vote: PUB. S. 6 - 0 |
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|Urgency: No |Mandate: No |
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|Hearing Date: August 8, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 2888 would prohibit a court from granting probation
or suspending the execution or imposition of a sentence if a
person is convicted of rape, sodomy, penetration with a foreign
object, or oral copulation if the victim was either unconscious
or incapable of giving consent due to intoxication.
Fiscal
Impact:
State prisons : Potentially significant ongoing increase in
state incarceration costs (General Fund) for new commitments
to state prison that otherwise may have been granted probation
or suspension of imposition of a felony sentence. CDCR data
indicates nearly 100 new commitments to state prison in 2015
under the specified provisions of this measure. However, the
number of individuals granted probation in lieu of a prison
sentence for these offenses that may be impacted by this bill
is unknown. For context, for every five percent increase in
annual commitments to state prison under the specified
provisions of law, annual state incarceration costs would
increase by $145,000 in the first year, cumulatively
AB 2888 (Low) Page 1 of
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increasing for overlapping sentences.
State parole : Potential increase in future parole supervision
costs for persons released from state prison for a rape
conviction pursuant to PC § 261(a)(3) or PC § 261(a)(4). All
categories of rape under existing law are considered "serious
felonies" pursuant to PC § 1192.7(c), and therefore, subject
to parole supervision upon release from state prison.
County supervision : Unquantifiable net local agency
supervision costs (Local Funds) consisting of potential cost
savings for persons released onto state parole for rape
convictions in lieu of probation, offset by increased costs
for postrelease community supervision (PRCS) for persons that
otherwise would have been granted probation.
Background: Existing law prohibits a court from granting probation or
suspending the execution or imposition of a sentence if a person
is convicted of any of the following offenses:
Forcible sexual intercourse (Penal Code (PC) §
261(a)(2), (a)(6).);
In concert sexual assault (PC § 264.1.);
Pimping and pandering (PC §§ 266h, 266i.);
Procuring or obtaining a minor under the age of 16 for a
lewd and lascivious act (PC § 266j);
Aggravated sexual assault of a child under 14 (PC §
269.);
Forcible or in concert sodomy (PC § 286 (c)(2), (c)(3),
(d).);
Forcible or in concert oral copulation (PC §
288a(c)(2),(c)(3), (d).);
Sexual intercourse or sodomy of a child 10 or younger
(PC § 288.7.);
Forcible foreign object sexual penetration (PC §
289(a).); or
Making child pornography (PC § 311.4 (b).).
AB 2888 (Low) Page 2 of
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(PC § 1203.065 (a).)
Existing law provides that except 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 offenses:
Rape by threat of use of public official authority (PC §
261 (a)(7).);
Sodomy by threat of use of public official authority (PC
§ 286 (k).);
Oral copulation by threat of use of public official
authority (PC § 288a (k).);
Foreign object sexual penetration by threat of use of
public official authority (PC § 289 (g).); or
Assault with intent to commit a specified sexual offense
(PC § 220.).
(PC § 1203.065 (b)(1).)
Under existing law, if probation is granted under the
aforementioned unusual cases, the court is required to specify
on the record and enter on the minutes the circumstances
indicating that the interests of justice would best be served by
the disposition. (PC § 1203.065 (b)(2).)
This bill appears to have been prompted in response to the
recent case involving a Stanford University student convicted on
three felony counts of sexual assault of an intoxicated and
unconscious woman. In this case, the defendant was sentenced to
six months in county jail and three years' probation. This bill
seeks to remove judicial discretion and prohibit the granting of
probation or suspending execution of a sentence for felony
convictions for specified sexual offenses.
Proposed Law:
AB 2888 (Low) Page 3 of
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This bill would prohibit the court from granting probation or
suspending the execution or imposition of a sentence if a person
is convicted of any of the following sex offenses:
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 (PC § 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 (PC § 261 (a)(4).);
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 (PC § 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 (PC § 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 (PC § 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 (PC § 288a
(i).);
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 (PC § 289 (d).);
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 (PC § 289 (e).).
AB 2888 (Low) Page 4 of
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Related
Legislation: AB 701 (C. Garcia) 2016 would legislatively
declare that all forms of nonconsensual sexual assault may be
considered rape for purposes of the gravity of the offense and
the support of survivors. This bill is pending a vote on the
Senate Floor.
Staff
Comments: By prohibiting a court from granting probation or
suspending the execution or imposition of a sentence, this bill
could result in significant ongoing costs for new commitments to
state prison, as well as increased state parole supervision
costs for specified cases.
Data from the CDCR indicates nearly 100 new commitments to state
prison in 2015 for the offenses specified in this measure. Based
on historical prison releases for these specified sex offenses,
the average length of stay in state prison is slightly greater
than 30 months. Although the number of new commitments entering
state prison each year for the specified offenses is known, the
annual number of defendants convicted of the specified sex
offenses who have been granted probation or suspension of the
execution of their sentences is unknown. As a result, the number
of potential new commitments to state prison is also unknown. To
the extent the number of commitments to state prison increases
by five percent, or five defendants per year, annual costs could
increase by $145,000 in the first year, cumulatively increasing
each year for overlapping sentences.
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