BILL ANALYSIS                                                                                                                                                                                                    



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

          Bill No:    SB 752        Hearing Date:    April 28, 2015    
          
           ----------------------------------------------------------------- 
          |Author:    |Nielsen                                              |
          |-----------+-----------------------------------------------------|
          |Version:   |April 21, 2015                                       |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|JM                                                   |
          |           |                                                     |
           ----------------------------------------------------------------- 


                  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  








          SB 752  (Nielsen )                                        PageB  
          of?
          
          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,  









          SB 752  (Nielsen )                                        PageC  
          of?
          
          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  









          SB 752  (Nielsen )                                        PageD  
          of?
          
          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.)










          SB 752  (Nielsen )                                        PageE  
          of?
          
          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  

          ---------------------------
          <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.)








          SB 752  (Nielsen )                                        PageF  
          of?
          
          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;
                  --------------------
          <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).)








          SB 752  (Nielsen )                                        PageG  
          of?
          
                           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  









          SB 752  (Nielsen )                                        PageH  
          of?
          
          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  









          SB 752  (Nielsen )                                        PageI  
          of?
          
               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  
          -------------------------
          <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 
          ,)








          SB 752  (Nielsen )                                        PageJ  
          of?
          
          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  



               ----------------------
          <5>   Id. at 132-133.








          SB 752  (Nielsen )                                        PageK  
          of?
          
               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?



          -------------------------
          <6>   Id. at 155-156 (emphasis added).








          SB 752  (Nielsen )                                        PageL  
          of?
          
                                      -- END -