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. 

          ---------------------------
          <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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