BILL ANALYSIS Ó
AB 2888
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
2888 (Low and Dodd)
As Amended August 2, 2016
Majority vote
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|ASSEMBLY: | |(May 5, |SENATE: |34-0 |(August 16, |
| | |2016) | | |2016) |
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(vote not relevant)
Original Committee Reference: AGRI
SUMMARY: Prohibits judges from granting probation when one of
the following felony offenses is committed:
1)Rape, sodomy, forced oral copulation, or sexual penetration by
a foreign object when the perpetrator uses an intoxicating or
anesthetic substance.
2)Rape, sodomy, or forced oral copulation when the victim is
unconscious.
3)Sexual penetration by a foreign object when the victim submits
under the belief that the person committing the act or causing
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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.
The Senate amendments delete the Assembly version of this bill,
and instead provide that the following additional crimes would
be ineligible for probation:
1)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;
2)Forcible sexual intercourse where the victim is at the time
unconscious of the nature of the act, and this is known to the
accused;
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;
4)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;
5)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;
6)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;
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7)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;
8)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.
EXISTING LAW:
1)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:
a) Forcible sexual intercourse;
b) In concert sexual assault;
c) Pimping and pandering;
d) Procuring or obtaining a minor under the age of 16 for
lewd and lascivious act;
e) Aggravated sexual assault of a child under 14;
f) Forcible or in concert sodomy;
g) Forcible or in concert oral copulation;
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h) Sexual intercourse or sodomy of a child 10 or younger;
i) Forcible foreign object sexual penetration; or
j) Making child pornography.
2)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:
a) Rape by threat of use of public official authority;
b) Sodomy by threat of use of public official authority;
c) Oral copulation by threat of use of public official
authority; subdivision Foreign object sexual penetration by
threat of use of public official authority; or Assault with
intent to commit a specified sexual offender.
3)Provides that when probation is granted under specified
circumstances, "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."
AS PASSED BY THE ASSEMBLY, this bill made permissive the
requirement that:
1)The California Department of Food and Agriculture (CDFA)
expend up to $100,000 in any fiscal year for exhibits at a
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state-supported fair that shows the process of production and
use of agricultural products in the state; and
2)CDFA arrange for a conference of fair judges to help CDFA make
regulations for the judging of exhibits.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)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 5% 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 increasing for
overlapping sentences.
2)State parole: Potential increase in future parole supervision
costs for persons released from state prison for a rape
conviction pursuant to PC Section 261(a)(3) or PC Section
261(a)(4). All categories of rape under existing law are
considered "serious felonies" pursuant to PC Section
1192.7(c), and therefore, subject to parole supervision upon
release from state prison.
3)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.
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COMMENTS: According to the author, "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 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 Section 1203.065 to include
to the list of offenses that are ineligible for probation,
all sexual assaults felonies perpetrated against
intoxicated and unconscious victims."
This bill was substantially amended in the Senate and the
Assembly-approved version provisions of this bill were
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deleted. This bill, as amended in the Senate and is
inconsistent with Assembly actions and the provisions of
this bill, have not been heard in an Assembly policy
committee.
Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744 FN:
0004183