BILL ANALYSIS                                                                                                                                                                                                    Ó



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

          Bill No:    SB 870        Hearing Date:    April 5, 2016    
          
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          |Author:    |Roth                                                 |
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          |Version:   |February 22, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|AA                                                   |
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                  Subject:  Felony Domestic Violence: Strangulation



          HISTORY

          Source:   Riverside District Attorney

          Prior Legislation:SB 430 (Kehoe) - Ch. 129, Statutes of 2011

          Support:  California District Attorneys Association; California  
                    Police Chiefs Association; Peace Officers Research  
                    Association of California; one individual

          Opposition:California Public Defenders Association

                                                


          PURPOSE

          The purpose of this bill is to reframe existing strangulation  
          provisions in the felony domestic violence statute as a  
          stand-alone subdivision, with the same penalties as those in  
          current law.  

          Current law provides any person who willfully inflicts upon a  
          person who is his or her spouse, former spouse, cohabitant,  
          former cohabitant, fiancé or fiancée, or someone with whom the  








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          offender has, or previously had, an engagement or dating  
          relationship, as defined, or the mother or father of his or her  
          child, corporal injury resulting in a traumatic condition, is  
          guilty of a felony, and upon conviction thereof shall be  
          punished by imprisonment in the state prison for two, three, or  
          four years, or in a county jail for not more than one year, or  
          by a fine of up to $6,000 or by both that fine and imprisonment.  
          (Penal Code § 273.5(a).)

          Current law provides that as used in this section, "traumatic  
          condition" means a condition of the body, such as a wound, or  
          external or internal injury, including, but not limited to,  
          injury as a result of strangulation or suffocation,  whether of  
          a minor or serious nature, caused by a physical force. For  
          purposes of this section, "strangulation" and "suffocation"  
          include impeding the normal breathing or circulation of the  
          blood of a person by applying pressure on the throat or neck.    
          (Penal Code § 273.5(d).)  

          This bill would delete the references to strangulation and  
          suffocation in the above definition of "traumatic condition."

          This bill instead would provide that any person who willfully  
          inflicts corporal injury resulting in a traumatic condition upon  
          a victim described above, "where the corporal injury resulting  
          in a traumatic condition is caused in whole or in part by  
          strangulation or suffocation, is guilty of a felony, and upon  
          conviction thereof shall be punished by imprisonment in the  
          state prison for two, three, or four years, or in a county jail  
          for not more than one year," or by a fine of up to $6,000, or by  
          both that fine and imprisonment. 

          This bill would provide that "for purposes of this paragraph,  
          'strangulation' and 'suffocation' include impeding the normal  
          breathing or circulation of the blood of a person by applying  
          pressure on the throat or neck."

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          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  









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          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  
          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:










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              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:

               This bill would amend the penal code to identify where  
               the defendant inflicts the traumatic condition, in  
               whole or in part, by means of strangulation. Current  
               legislation does not separate an act of domestic  
               violence involving strangulation from an act of  
               domestic violence which does not. 

                           Strangulation accounts for 10% of all  
                    violent deaths annually in the United States.  

                           At least 25% of all domestic violence  
                    cases include strangulation.  

                           50% of non-fatal strangulation cases  
                    leave no visible external injury.  35% result in  
                    injuries too difficult to document by photograph.  









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                     Only 3% of these victims seek medical attention.

                           Victims of strangulation often don't  
                    understand the dangerousness of the act and are  
                    therefore reluctant to seek medical attention.  

                           As little as 8 pounds of pressure (the  
                    same force necessary to pull the trigger on a  
                    handgun) can cause loss of consciousness,  
                    permanent brain damage, or death.  

                           In a 2006 study, 34% of abused pregnant  
                    women reported being "choked."  

                           In a study conducted in San Diego,  
                    California, researchers found that children were  
                    present in 50% of the strangulation cases.

                           In a 2011 study of men enrolled in  
                    batterer intervention program, 27% admitted they  
                    had strangled a partner during their lifetime.   
                    35% of those indicated it occurred more than  
                    once.  83% of those incidents included other  
                    abusive behavior.

                           Studies link a history of strangulation  
                    to those individuals committing homicidal  
                    violence against law enforcement.    

               (This measure would not create any new offense and  
               would not result in any increase in state prison and  
               population)

          1.What This Bill Would Do

          In 2011, SB 430 (Kehoe) was enacted into law to specify that,  
          for purposes of felony domestic violence, "traumatic condition"  
          included an injury as a result of strangulation or suffocation,  
          and that in this context "strangulation" and "suffocation"  
          included impeding the normal breathing or circulation of the  
          blood of a person by applying pressure on the throat or neck.  

          This bill would amend these provisions by reframing these  
          strangulation references as a stand-alone subdivision of the  









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          felony domestic violence statute.  As explained above, a  
          "traumatic condition," which is a required element for felony  
          domestic violence, already expressly includes strangulation.   
          This bill instead creates a subdivision in the felony domestic  
          violence statute expressly for instances where the injury  
          resulting in a traumatic condition is caused in whole or in part  
          by strangulation or suffocation.  The penalty would be the same  
          as current law.

          The Riverside District Attorney, which is the sponsor of this  
          bill, submits in part:

               SB 870 allows us to readily identify offenders who  
               strangle their victims.  Without creating a new  
               offenses or increasing the state prison population, it  
               separates out this type of offender from other  
               domestic violence offenders.  This identification  
               becomes critical throughout the criminal justice  
               system.  Law enforcement can use this information in  
               order to assess the potential lethality of the  
               offender.  Prosecutors and the courts can use this  
               information to craft appropriate sentences.  Probation  
               can use this identification to craft better programs  
               for abusers. Victims benefit from the recognition that  
               non-fatal strangulation is the most severe form of  
               domestic violence short of homicide.  

          3.Background: Strangulation and Domestic Violence

          As the author's statement indicates, research demonstrates the  
          importance of understanding strangulation in the context of  
          domestic violence.  As one commentator explained in a 2014  
          Australian law review article:

               Both legal and medical studies have begun to emphasize  
               the importance of strangulation in the context of  
               responding to domestic violence. . . .   Strangulation  
               is now established as a predictive risk factor for  
               future severe domestic violence and for homicide, and  
               it is commonly alleged by women who have experienced  
               domestic violence.  . . . (S)trangulation is a  
               relatively common cause of domestic violence-related  
               homicide. . . .    










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               Strangulation is a significant concern for at least  
               two reasons.  First, it frequently affects the  
               long-term health of the victim. . . .    

               Second, the risk to the victim of more serious injury  
               or death is increased dramatically once the victim has  
               experienced strangulation at the hands of their    
               intimate partner or former intimate partner.   
               Significant research about the prevalence of, and  
               risks associated with, strangulation has taken place  
               in the United States.  In 2000, Block et al published  
               the results of The Chicago Women's Health Risk Study.   
               The Chicago Study conducted domestic violence  
               screening for 2616 women who attended a hospital or  
               health service for treatment in the Chicago area in  
               1995-96. The study found that having been choked in a  
               previous domestic violence incident was a risk factor  
               for later being seriously injured or killed.  Strack  
               and Gwinn state that there are a number of findings  
               about non-fatal strangulation incidents that are now  
               common knowledge.  These include that there are often  
               no visible injuries as a result of strangulation and  
               yet there are often internal injuries; that the  
               strangulation can have long-term physical and  
               psychological impacts; that strangulation is a  
               gendered crime (perpetrators are almost always men and  
               victims are almost always women); and that victims of  
               strangulation are much more likely eventually to  
               become homicide victims. 

               In 2001, Stack, McClane and Hawley 22 published a  
               pivotal study in the United States, . . . .  Their  
               study reviewed 300 cases of domestic violence  
               involving non-fatal strangulation. The cases had all  
               been submitted to the San Diego Attorney's office for  
               prosecution.  Almost all of the victims were women,  
               and almost all of the perpetrators were their victim's  
               current or former male intimate partner.  In most  
               cases, the perpetrator had used his hands to strangle  
               the victim.  In most cases (89 per cent), there was a  
               prior history of domestic violence. . . .     

               The links between the risk of further serious injury  
               and death subsequent to an attempted strangulation has  









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               been of particular interest to a number of  
               researchers. In one study, researchers concluded that  
               the odds of becoming a homicide victim as a result of  
               further domestic violence were increased by 800  
               percent for women who had previously experienced  
               strangulation by their partners.  . . . <1>    

                                      -- END -





          




























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          <1>   Douglas and Fitgerald, Strangulation, Domestic Violence  
          and the Legal Response (2014) 36 Sydney L. Rev. 231.