BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1088 Hearing Date: April 19, 2016
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|Author: |Nguyen |
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|Version: |March 28, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Wrongful Concealment: Accidental Death
HISTORY
Source: Author
Prior Legislation:SB 139 (Johnson) - Ch. 396, Stats. 1999
Support: California State Sheriffs' Association; Orange County
District Attorney; City of Santa Ana Police
Department; City of Anaheim Police Department; Los
Angeles County Sheriff's Department; Orange County
Sheriff's Department; several hundred individuals
Opposition:American Civil Liberties Union of California;
California Public Defenders Association
PURPOSE
The purpose of this bill is to raise the penalty for concealing
an accidental death from a misdemeanor to an alternate
felony-misdemeanor (wobbler).
Existing law provides that it is a misdemeanor to actively
conceal an accidental death, or attempt to do so. This
misdemeanor is punishable by a jail term of up to one year, or a
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fine of between $1,000 and $10,000, or both. (Pen. Code § 152,
subd. (a).)
Existing law provides that to conceal an accidental death means
to do one of the following acts:
Perform an overt act that conceals the body or directly
impedes the ability of authorities or family members to
discover the body.
Directly destroy or suppress evidence of the actual
physical body of the deceased, including, but not limited
to, bodily fluids or tissues.
Destroy or suppress the actual physical instrumentality
of death. (Pen. Code § 152, subd. (b).)
Existing law provides that employers must immediately report a
workplace death to the Cal-OSHA (California Occupational Safety
and Health Administration). (Lab. Code §§ 6409.1 and 6409.2)
Existing law provides that any person who receives anything of
value in exchange for the destruction or concealment of evidence
of a crime is guilty of an alternate felony misdemeanor
punishable by imprisonment pursuant to Penal Code Section 1170,
subdivision (h), for sixteen months, two years or three years,
or in the county jail for up to one year, where the crime
concealed was punishable by death or life in prison; by
imprisonment pursuant to Penal Code Section 1170, subdivision
(h), for sixteen months, two years or three years, or in the
county jail for up to six months where the concealed crime was
punishable by a non-life prison term; and by imprisonment in the
county jail for up to six months where the crime concealed was
a misdemeanor. The maximum fine for a conviction under this
section $1,000 for misdemeanor and $10,000 for a felony. (Pen.
Code § 153)
Existing law provides that any person who, after the commission
of a felony, helps the perpetrator escape arrest or prosecution
is guilty of an alternate felony-misdemeanor, "punishable by a
fine not exceeding five thousand dollars ($5,000), or by
imprisonment pursuant to subdivision (h) of Section 1170, or in
a county jail not exceeding one year, or both a fine and
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imprisonment. (Pen. Code §§ 32-33.)
This bill makes the existing misdemeanor of active concealment
of an accidental death an alternate felony-misdemeanor
(wobbler).
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
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).)
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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:
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.Need for This Bill
According to the author:
Erica Alonso, a resident of Laguna Hills, went missing
on February 15, 2015. Her body was later found a few
months later on April 27, 2015 in a dry creek bed near
Ortega Highway and Hot Springs Canyon Road near San
Juan Capistrano. Erica's death was not a homicide.
However, someone with her moved the body to hide the
fact that she had died. For this reason, Erica's
family and friends had no way to locate her, resulting
in additional trauma to the family and community at
large.
Following the discovery of Erica's body, public outcry
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surfaced and a rally took place in Santa Ana that
sought justice for Erica. One of the community's
frustrations centered on the lack of an appropriate
penalty. Currently the consequence for dumping a body
is a maximum penalty of not more than one year in
county jail or by a fine of not less than one thousand
dollars ($1,000), nor more than ten thousand dollars
($10,000), or by both a fine and imprisonment.
Specifically, Senate Bill 1088 amends the California
Penal Code to increase the penalty for the concealment
of a body due to an accidental death to a "wobbler"
from a misdemeanor. In this case, a penalty increase
to a "wobbler" would allow a judge to impose a greater
penalty if the circumstances warrant it.
2.Issues Related to Punishment and Deterrence
This bill raises the penalty for actively concealment of an
accidental death from a misdemeanor to a felony. In cases where
a person conceals the death of another, questions about the
culpability of that person for the death of the decedent can
arise. The likely major purposes of imposing criminal liability
for concealing a death are to impose an appropriate penalty for
conduct that would shock the conscience of most people, and to
deter such conduct.
The author's statement indicates that the main purpose of this
bill is punishment - what is described as "just deserts" in
criminology. A 2002 article in the Journal of Personality and
Social Psychology succinctly described the theory:
The theory of just deserts is retrospective rather than
prospective. The punisher need not be concerned with
future outcomes, only with providing punishment
appropriate to the given harm. Although it is
certainly preferable that the punishment serve a
[deterrence] function? its justification lies in
righting a wrong, not a ? future benefit. The central
precept? is that the punishment be proportionate to the
harm. The task ?is to assess the magnitude of the harm
and to devise a punishment that is proportionate in
severity, if not in kind. Kant (1952) recommended
censure proportionate to a perpetrator's "internal
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wickedness," a quantity that may be approximated by
society's sense of moral outrage over the crime. (Why
do We Punish?, Journal of Personality and Social
Psychology, (2002) Vol. 83, No. 2, 284-299, Carlsmith,
Darley and Robinson.)<1>
The possible gain the person who causes a death could realize
from actively concealing a death might greatly outweigh any
deterrence value provided by the current misdemeanor or the
higher penalties that would be imposed under this bill,
particularly if concealing a death impedes a criminal homicide
investigation. The punishment for murder is death or life in
prison. (Pen. Code § 190.) The upper term sentence for
manslaughter is eleven years in prison. (Pen. Code § 193)
Where a person does not commit a murder, but assists another
after the homicide, he or she is guilty of being an accessory,
an alternate felony-misdemeanor. (Pen. Code § 32) As noted
above, one may be guilty of compounding a felony where he or she
takes anything of value to conceal a crime or destroy evidence
of a crime. (Pen. Code § 153)
Even where criminal liability does not attach, the consequences
of reporting a death could be substantial. One who is the
negligent cause of the death of another is liable for severe
civil (monetary) damages in the tort of "wrongful death."
3.Vagueness Issues Related to the Term "Accidental Death" - No
Appellate Decisions on the Current Law
The current misdemeanor of actively concealing an accidental
death became effective 2000. It is not known how many
defendants have been prosecuted under this law. Committee staff
has been unable to find any appellate decisions interpreting the
statute. That is not surprising, as misdemeanor appellate
decisions by the superior court appellate division are seldom
published. If the felony penalties in this bill are enacted,
there would be a greater likelihood that a conviction would be
challenged and a published decision on the statute issued by the
Court of Appeal.
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<1>
http://www.colgate.edu/portaldata/imagegallerywww/184416d4-5863-4
a3e-a73b-b2b6b86e7b60/ImageGallery/Carlsmith_Darley_Robinson_2002
.pdf
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One issue that might arise on appeal is whether the term
"accidental death" is vague. To survive a challenge that a
criminal statute is as vague as to deny due process, the statute
must inform a person of ordinary intelligence what it prohibits
or requires. (Connally v. General Construction Company (1926)
269 U.S. 385.) Neither current law nor this bill defines
"accidental death." It appears that an accidental death would
encompass any death that was not a criminal homicide. The
determination of whether a death was accidental or intentional,
and thus likely prosecuted as a criminal homicide, may not be
simple.
4.Fifth Amendment Issues Directly Related to the Terms in This
Bill
Under this bill, where the police believe that a person has
concealed a death, Miranda warnings would be required in any
interview conducted while the suspect was in custody or its
functional equivalent. A "suspect" is a person upon whom
investigating officers have focused their attention as the
likely perpetrator of a crime. (People v. Stansbury (1993) 4
Cal.4th 1017, 1050-1054.) "Custody" generally means detention
by the police such that the person is not free to leave. (Id,
at 1053-1054; People v. Esqueda (1993) 17 Cal.App.4th 1450.)
Evidence that would supply generalized suspicion about a murder
- the person's concealment of a death - would constitute
particular suspicion about the crime of concealing a death. The
police would then be required to inform the person of his or her
right to remain silent as to a possible prosecution for
concealing the fact of a death. If the person then refuses to
speak to the police and hires counsel, important evidence could
be lost. If a suspect in a concealment of a body case is
interrogated in custody and Miranda warnings are not given,
admissions by the suspect which implicate him or her in a murder
could be found to be inadmissible in court.
5.Concealment of a Death as an Additional Charge in a Murder
Prosecution and Powerful Evidence of the Defendant's
Consciousness of Guilt
There may be numerous cases where a person who conceals a death
is investigated, arrested and prosecuted for murder or another
form of homicide. If the person is not arrested and questioned
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as a suspect in the concealment of an accidental death that
offense could still be included as an additional charge in a
homicide prosecution. If there is insufficient evidence to
prove murder or manslaughter, the defendant could still be
convicted of concealing an accidental death.
Further, proof that a murder defendant concealed the body of the
decedent would certainly be used as important and powerful
evidence of consciousness of guilt. In any case in which the
defendant fled the scene of a crime, intimidated witnesses or
hid evidence, the court would instruct the jury that the
defendant's conduct could be considered in determining his or
her guilt. (Pen. Code § 1127c.)
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