BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 752 Hearing Date: April 28, 2015
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|Author: |Nielsen |
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|Version: |April 21, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Crimes Against Law Enforcement Officers
HISTORY
Source: Electric Blue Foundation
Prior Legislation:None Known
Support: Crime Victims United of California; California Police
Chiefs Association; Peace Officers Research
Association of California; The Association for Los
Angeles Deputy Sheriffs Association; Los Angeles
Police Protective League; Riverside Sheriffs
Association; Los Angeles Probation Officers Union;
AFSCME Local 685; Association of Deputy District
Attorneys
Opposition:Legal Services for Prisoners with Children;
California Public Defenders Association; California
Attorneys for Criminal Justice
PURPOSE
The purposes of this bill is to raise misdemeanor penalties to
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alternate felony-misdemeanors, raise alternate
felony-misdemeanor penalties to straight felonies and to require
specified jail sentence felonies (Pen. Code § 1170 (h)) to be
served in prison, for crimes involving maliciously distributing
the residence address or phone number of a peace officer or
specified official, and for batteries against peace officers and
first responders, such as firefighters.
Existing law provides that every person who maliciously, and
with the intent to obstruct justice or the due administration of
the laws, or with the intent or threat to inflict imminent
physical harm in retaliation for the due administration of law,
publishes, disseminates, or otherwise discloses the residence
address or telephone number of any peace officer, non-sworn
police dispatcher, or employee of a city police department or
county sheriff's office, or that of the spouse or children of
these persons, as such without the authorization of the
employing agency is guilty of a misdemeanor. A violation that
results in bodily injury to the peace officer, employee of the
city police department or county sheriff's office or their
children is a felony, punishable pursuant to Penal Code Section
1170, subdivision (h) by a term of 16 months, two years or three
years. (Pen. Code § 146e.)
Existing law provides that it is a misdemeanor to willfully
resist, delay, or obstruct a public officer, peace officer, or
emergency medical technician (EMT) in the discharge or attempt
to discharge his or her duty, punishable by a fine not exceeding
$1,000, or by imprisonment in a county jail for up to one year,
or both. (Pen. Code § 148, subd. (a).)
Existing law provides that a person who, while resisting or
delaying an officer, removes or takes any weapon, other than a
firearm, from the person or immediate presence of an officer is
guilty of an alternative felony-misdemeanor, punishable by
imprisonment in the county jail for up to one year, or, pursuant
to Penal Code Section 1170, subdivision (h), for a term of
sixteen months, two or three years and a fine of up to $10,000.
(Pen. Code § 148, subd. (b).)
Existing law provides that a person who, while resisting or
delaying an officer, removes or takes a firearm from the person
or immediate presence of an officer is guilty of a felony,
punishable by imprisonment pursuant to Penal Code Section 1170,
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subdivision (h), for a term of sixteen months, two or three
years and a fine of up to $10,000. (Pen. Code § 148, subd.
(c).)
Existing law provides that any person who removes or attempts to
remove a firearm from the person or immediate presence of a
peace officer or public officer, without the intent to
permanently deprive the officer of the firearm, is guilty of an
alternate felony/misdemeanor, punishable or by a jail term of up
to one year, a fine of up to $1,000, or both, or by imprisonment
pursuant to Penal Code Section 1170, subdivision (h) for a term
of sixteen months, two years or three years and a fine of up to
$10,000. It is an element of this offense that the officer was
performing his or her duties when the offense occurred. (Pen
Code § 148, subd. (d).)
Existing law defines a battery as "any willful and unlawful use
of force or violence upon the person of another." (Pen. Code §
242.)
Existing law provides that simple battery (battery not causing
injury requiring medical attention) is a misdemeanor punishable
by a county jail term of up to 6 months, a fine of up to $1000,
or both. (Pen. Code § 242.)
Existing law provides that battery producing "serious bodily
injury," as defined, is an alternate felony-misdemeanor,
punishable by imprisonment in the county jail for up to one
year, a fine of up to $1000 or both, or, pursuant to Penal Code
Section 1170, subdivision (h) by a term of two three or four
years and a fine of up to $10,000. (Pen. Code § 243, subd.
(d).)
Existing law defines serious bodily injury as a serious
impairment of physical condition, including, but not limited to
loss of consciousness; concussion; bone fracture; protracted
loss or impairment of function of any bodily member or organ; a
wound requiring extensive suturing; and serious disfigurement.
(Pen. Code § 243, subd. (f)(4).)
Existing law provides that where the victim of a simple battery
is a peace officer custodial officer, traffic officer,
firefighter, EMT, physician or nurse providing emergency care,
lifeguard, process server, traffic officer, code enforcement
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officer, or animal control officer engaged in the performance of
his or her duties, the crime is a misdemeanor, punishable by a
county jail term of up to one year, a fine of up to $2000, or
both. The fact that the defendant knew, or should have known,
the status of the victim is an element of this crime. (Pen.
Code § 243, subd. (b).)
Existing law provides that where the victim of a battery is
custodial officer, traffic officer, firefighter, EMT, physician
or nurse providing emergency care, lifeguard, process server,
traffic officer, code enforcement officer, or animal control
officer engaged in the performance of his or her duties, and an
injury is inflicted on the victim, the crime is an alternate
felony-misdemeanor, punishable by a jail term of up to one year,
a fine of up to $2000, or both, or pursuant to Penal Code
Section 1170, subdivision (h) by a prison term of 16 months, 2
years or 3 years and a fine of up to $10,000. The fact that the
defendant knew, or should have known, the status of the victim
is an element of this crime. (Pen. Code § 243, subd. (c)(1).)
Existing law provides that where the victim of a battery is a
peace officer who is performing his or her duties, while on or
off duty, including when the officer is in uniform and
concurrently performing his duties while in a private capacity
as a part-time security guard or patrolman, and an injury
occurs, the crime is an alternate felony-misdemeanor, punishable
by a county jail term of up to one year, a fine of up to $2000,
or both, or, pursuant to Penal Code Section 1170, subdivision
(h), by a term of 16 months, 2 years or 3 years and a fine of up
to $10,000. The fact that the defendant knew, or should have
known, the status of the victim is an element of this crime.
(Pen. Code § 243, subd. (c)(2).)
Existing law provides that all cities and counties are
authorized to employ custodial officers (public officers who are
not peace officers) for the purpose of maintaining order in
local detention facilities. (Pen. Code § 831.)
Existing law provides that a battery on a custodial officer
committed while the officer is performing his or her duties is a
felony, punishable pursuant Penal Code § 1170, subdivision (h),
by imprisonment for 16 months, two years or three years and a
fine of up to $10,000 (Pen. Code § 243.1.)
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This bill would provide that any person who publishes,
disseminates or otherwise discloses the home address or phone
number of a peace officer or employee of a police department or
sheriff's office, or the immediate family of the officer or
employee, with the malicious intent to obstruct justice or
administration of the law, or with the intent to inflict
imminent physical harm in retaliation for the administration of
the law is guilty of a felony, punishable by imprisonment
pursuant to Penal Code Section 1170, subd. (h) for 16 months,
two years or three years and a fine of up to $10,000.
This bill would provide that a person who, while resisting or
delaying an officer, removes or takes any weapon, other than a
firearm, from the person or immediate presence of an officer is
guilty of a felony-misdemeanor, punishable pursuant to Penal
Code Section 1170, subdivision (h), by imprisonment for sixteen
months, two or three years and a fine of up to $10,000. (Pen.
Code § 148, subd. (b).)
This bill would provide that a person who, while resisting or
delaying an officer, removes or takes a firearm from the person
or immediate presence of an officer is guilty of a felony,
punishable by imprisonment in a state prison for a term of
sixteen months, two or three years and a fine of up to $10,000.
This bill provides that where the victim of a battery is
custodial officer, traffic officer, firefighter, EMT, physician
or nurse providing emergency care, lifeguard, process server,
traffic officer, code enforcement officer, or animal control
officer engaged in the performance of his or her duties, and an
injury is inflicted on the victim, the crime is a felony,
punishable pursuant to Penal Code Section 1170, subdivision (h)
by a prison term of 16 months, 2 years or 3 years and a fine of
up to $10,000.<1> The fact that the defendant knew, or should
have known, the status of the victim is an element of this
crime.
This bill provides that where the victim of a battery is a peace
officer who is performing his or her duties, while on or off
duty, including when the officer is in uniform and concurrently
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<1> When a felony does not include a specified fine, the maximum
fine is $10,000; when a misdemeanor does not include a specific
fine, the maximum fine is $1,000. (Pen. Code § 672.)
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performing his duties while in a private capacity as a part-time
security guard or patrolman, and an injury occurs, the crime is
an alternate felony-misdemeanor, punishable by a fine of up to
$10,000,<2> or pursuant to Penal Code Section 1170, subdivision
(h), by a term of 16 months, 2 years or 3 years and a fine of up
to $10,000. The fact that the defendant knew, or should have
known, the status of the victim is an element of this crime.
This bill provides that a battery on a custodial officer
committed while the officer is performing his or her duties is a
felony, punishable by imprisonment in a state prison for 16
months, two years or three years and a fine of up to $10,000.
COMMENTS
1. Need for This Bill
According to the author:
The mission of law enforcement is to protect the
public, often times at the risk of their personal
safety. Current law leaves California's first
responders and public safety officers vulnerable.
There must be consequences for criminal behavior.
Furthermore, there must be strong consequences for
crimes committed against public safety officials.
One may be surprised to learn that as it stands now,
the following crimes are able to be prosecuted
lightly:
Maliciously disclosing home address or
personal phone number of a public safety
official and their spouse and children;
Removing an officer's weapon while
resisting arrest;
Removing an officer's firearm while
resisting arrest;
Battery of a first responder;
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<2> Where a crime provides for a fine alone, with no custody
penalty specified, the crime is a misdemeanor if the court
imposes only the penalty of the fine. (Pen. Code §17, subd.
(b)(1).)
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Battery of an officer.
Existing law makes it a crime to violate various
provisions prohibiting certain actions against a
peace officer or his or her family, other first
responders, or public officials, including, but not
limited to, removing an officer's firearm while
resisting arrest, and committing a battery against a
peace officer or other medical personnel engaged in
the performance of his or her duties. These crimes
are generally misdemeanors or felonies punishable in
a county jail, as specified, or an alternate
misdemeanor-felony, commonly referred to as a
wobbler.
This bill would revise these provisions to make all
of the misdemeanors or wobblers instead punishable as
felonies in county jail and make all of the felonies
punishable in county jail instead punishable in state
prison, as specified. California's law enforcement
deserves to be protected. There must be serious
consequences for criminal behavior against public
safety officers. SB 752 will strengthen the criminal
punishments for acts against law enforcement officers
and take a step forward in protecting California's
public safety officials.
2.The Felony In This Bill For a Battery With Injury Applies Not
Only To Peace Officers And First Responders, But Also To
Process Servers, Lifeguards And Physicians And Nurses
Providing Emergency Care Outside A Hospital
The author argues that a battery with injury against a peace
officer or a first responder should be a straight felony, not an
alternate felony-misdemeanor. The increased penalty would apply
where the victim is a peace officer, firefighter, nurse of
physician providing emergency care in the field, animal control
officer, traffic officer or unsworn employee of a probation
department. The penalty, however, also applies to a battery
with injury committed against a process server or lifeguard.
This raises the issue of whether, for purposes of felony
penalties for crimes committed against specified victims,
process servers, lifeguards and traffic officers should be
considered to be equivalent or similar to peace officers and
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first responders. Arguably, process servers are integral to the
system of justice and lifeguards provide an important public
safety service, and may keep order at public and private beaches
and swimming pools. A traffic officer performs a necessary
service to the community and may be confronted by an angry
citizen who has received a ticket. Nevertheless, these jobs do
not require the level of training and responsibility as peace
officers, firefighters and nurses and physicians.
3. The Stated Purposes Of This Bill Are Both Increased
Punishment And Deterrence For Specified Crimes Against Law
Enforcement Officers And "First Responders"
There are three generally recognized theories of punishment.
One is retribution - punishing a convicted criminal for the sake
of the punishment, with no particular additional result intended
or expected, so-called "just deserts." The second is
incapacitation - preventing a person from committing crimes by
keeping him or her in custody. The third is deterrence - the
tendency for a prospective criminal to avoid committing a crime
in order to avoid the punishment he or she would face upon
conviction.
It appears that the increased penalties in the bill are intended
to provide retribution and deterrence, although criminals
imprisoned under the increased penalties in this bill would be
incapacitated for the time they remain in custody. The author's
statement argues that "there must be serious consequences for
criminal behavior against public safety officers." The
statement also argues that the bill takes "a step forward in
protecting" public safety officials. While the bill does not
explicitly argue that the increased penalties will deter
prospective criminals, an expectation that the bill will help
protect officials clearly implies that the increased penalties
will deter some prospective offenders. Further, it can be
inferred that incapacitation during these longer sentences would
also protect public safety officials.
Criminal justice experts and commentators have noted that, with
regard to sentencing, "a key question for policy development
regards whether enhanced sanctions or an enhanced possibility of
being apprehended provide any additional deterrent benefits.
Research to date generally indicates that increases in
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the certainty of punishment, as opposed to the
severity of punishment, are more likely to produce
deterrent benefits.<3>
A comprehensive report published in 2014, entitled The
Growth of Incarceration in the United States, discusses the
effects on crime reduction through incapacitation and
deterrence, and describes general deterrence compared to
specific deterrence:
A large body of research has studied the effects of
incarceration and other criminal penalties on crime.
Much of this research is guided by the hypothesis that
incarceration reduces crime through incapacitation and
deterrence. Incapacitation refers to the crimes
averted by the physical isolation of convicted
offenders during the period of their incarceration.
Theories of deterrence distinguish between general and
specific behavioral responses. General deterrence
refers to the crime prevention effects of the threat
of punishment, while specific deterrence concerns the
aftermath of the failure of general deterrence-that
is, the effect on reoffending that might result from
the experience of actually being punished. Most of
this research studies the relationship between
criminal sanctions and crimes other than drug
offenses. A related literature focuses specifically
on enforcement of drug laws and the relationship
between those criminal sanctions and the outcomes of
drug use and drug prices.<4>
In regard to deterrence, the authors note that in "the
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<3> Valerie Wright, Ph.D., Deterrence in Criminal Justice
Evaluating Certainty vs. Severity of Punishment (November 2010),
The Sentencing Project
(http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pd
f.)
<4> The Growth of Incarceration in the United States (2014),
Jeremy Travis, Bruce Western and Steve Redburn, Editors,
Committee on Causes and Consequences of High Rates of
Incarceration, The National Research Council, p. 131 (citations
omitted)
(http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf
,)
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classical theory of deterrence, crime is averted when the
expected costs of punishment exceed the benefits of
offending. Much of the empirical research on the deterrent
power of criminal penalties has studied sentence
enhancements and other shifts in penal policy. . . .
Deterrence theory is underpinned by a rationalistic
view of crime. In this view, an individual
considering commission of a crime weighs the benefits
of offending against the costs of punishment. Much
offending, however, departs from the strict decision
calculus of the rationalistic model. Robinson and
Darley (2004) review the limits of deterrence through
harsh punishment. They report that offenders must
have some knowledge of criminal penalties to be
deterred from committing a crime, but in practice
often do not."<5>
Members may wish to discuss whether the "rationalistic
view" of crime described above likely would apply to
persons who maliciously disclose the addresses of public
safety, take an officer's firearm from his or her person
and commit batteries against officers - that is, whether
the increased penalties proposed by this bill would be
known by these offenders and, if so, whether the additional
time would discourage commission of the crime.
WOULD A SENTENCE INCREASES DISCOURAGE PERSONS FROM
MALICIOUSLY DISCLOSING A PUBLIC SAFETY OFFICIALS ADDRESS
AND PHONE NUMBER, OR FROM TAKING AN OFFICER'S GUN, OR
COMMITTING A BATTERY AGAINST AN OFFICER?
The authors of the 2014 report discussed above conclude
that incapacitation of certain dangerous offenders can have
"large crime prevention benefits," but that incremental,
lengthy prison sentences are ineffective for crime
deterrence:
Whatever the estimated average effect of the
incarceration rate on the crime rate, the available
studies on imprisonment and crime have limited utility
for policy. The incarceration rate is the outcome of
policies affecting who goes to prison and for how long
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<5> Id. at 132-133.
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and of policies affecting parole revocation. Not all
policies can be expected to be equally effective in
preventing crime. Thus, it is inaccurate to speak of
the crime prevention effect of incarceration in the
singular. Policies that effectively target the
incarceration of highly dangerous and frequent
offenders can have large crime prevention benefits,
whereas other policies will have a small prevention
effect or, even worse, increase crime in the long run
if they have the effect of increasing postrelease
criminality.
Evidence is limited on the crime prevention effects of
most of the policies that contributed to the post-1973
increase in incarceration rates. Nevertheless, the
evidence base demonstrates that lengthy prison
sentences are ineffective as a crime control measure.
Specifically, the incremental deterrent effect of
increases in lengthy prison sentences is modest at
best. Also, because recidivism rates decline markedly
with age and prisoners necessarily age as they serve
their prison sentence, lengthy prison sentences are an
inefficient approach to preventing crime by
incapacitation unless they are specifically targeted
at very high-rate or extremely dangerous offenders.
For these reasons, statutes mandating lengthy prison
sentences cannot be justified on the basis of their
effectiveness in preventing crime.<6>
Members may wish to discuss whether the sentence increases
proposed by this bill would provide any appreciable crime
deterrent benefits and whether greater incapacitation for
these offenders could generate the more and more serious
criminality upon release than if they had served a shorter
term.
BASED ON THE RESEARCH DESCRIBED ABOVE, WOULD THE SENTENCING
INCREASES PROPOSED BY THIS BILL IMPROVE PUBLIC SAFETY?
IN A COST-BENEFIT ANALYSIS, WOULD THE ADDED COSTS OF
INCARCERATION FROM THE INCREASES IN SENTENCES IN THIS BLLL
BE OUTWEIGHED BY ITS PUBLIC SAFETY BENEFIT, EITHER THROUGH
INCAPACITATION OR DETERRENCE?
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<6> Id. at 155-156 (emphasis added).
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