BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 1088 (Nguyen) - Wrongful concealment:  accidental death
          
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          |Version: March 28, 2016         |Policy Vote: PUB. S. 7 - 0      |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date: May 2, 2016       |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File.


          Bill  
          Summary:  SB 1088 would raise the penalty for concealing an  
          accidental death from a misdemeanor to an alternate  
          felony-misdemeanor, as specified. 


          Fiscal  
          Impact:  
            State prisons  :  Potential increase in state costs (General  
            Fund) to the extent the greater penalty for concealing an  
            accidental death results in additional commitments to state  
            prison. To the extent even two defendants are impacted in any  
            one year under the provisions of this bill could increase  
            state incarceration costs by $58,000 based on the estimated  
            contract bed rate of $29,000 per year.
            County jails  :  Potential increase in local costs (Local  
            Funds/General Fund*) for additional prosecutions, convictions,  
            and commitments to county jail that otherwise would have been  
            time-barred under the one-year statute of limitations for  
            prosecution of this offense as a misdemeanor under existing  







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            law. 

          *Proposition 30 (2012) provides that legislation enacted after  
          September 30, 2012, that has an overall effect of increasing the  
          costs already borne by a local agency, as specified, apply to  
          local agencies only to the extent the State provides annual  
          funding for the cost increase. Although legislation creating a  
          new crime or revising the definition of an existing crime is  
          exempt from Proposition 30 state funding requirements,  
          legislation that changes the penalty for an existing crime is  
          not similarly specifically exempt. Concealing an accidental  
          death is an existing crime. To the extent the greater penalty  
          imposed for committing this offense is determined to change the  
          penalty for this crime, any increase in costs to local agencies  
          attributable to the provisions of this legislation could  
          potentially require annual funding from the State.


          Background:  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  
          by a fine of no less than $1,000 and no more than $10,000, or by  
          both the fine and imprisonment. (Penal Code § 152 (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. (PC § 152 (b).) 

          Existing law provides that employers must immediately report a  
          workplace death to the Cal-OSHA (California Occupational Safety  
          and Health Administration). (Labor Code §§ 6409.1 and 6409.2.)




          Proposed Law:  
           This bill would raise the penalty for concealing an accidental  
          death from a misdemeanor to an alternate felony-misdemeanor,  








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          punishable by imprisonment pursuant to PC § 1170(h), or by a  
          fine of not less than $1,000 nor more than $10,000, or by both  
          that fine and imprisonment.


          Prior  
          Legislation:  SB 139 (Johnson) Chapter 396/1999 established that  
          a person who conceals an accidental death, as defined, is guilty  
          of a misdemeanor.


          Staff  
          Comments:  By raising the penalty for the crime of concealing an  
          accidental death, the provisions of this bill could result in  
          additional costs to the state and local agencies, including  
          additional costs to the courts, for prosecutions and convictions  
          that otherwise would have been time-barred under existing law  
          for concealing an accidental offense as a misdemeanor offense. 
          The number of additional commitments to state prison cannot be  
          estimated with certainty given the numerous factors involved in  
          charging and sentencing, including but not limited to judicial  
          and prosecutorial discretion, the prior criminal history of the  
          defendant, and the elements specific to each case. To the extent  
          the concealment of a death could potentially be added as an  
          additional charge in a homicide prosecution, even in the absence  
          of sufficient evidence to prove the murder or manslaughter, the  
          defendant could still potentially be convicted of concealing an  
          accidental death.  


          Additionally, as noted in the Public Safety Committee analysis  
          of this measure, "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." (PC § 1127c.)


          By raising the penalty for this offense to an alternate  
          felony-misdemeanor, the practical effect is the statute of  
          limitations to prosecute this crime is extended from one year to  
          three years, which could result in more prosecutions than  








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          otherwise would have been allowable under existing law. 


          Staff notes that concealing an accidental death is a crime under  
          existing law. Pursuant to Proposition 30 (2012), legislation  
          enacted after September 30, 2012, that has an overall effect of  
          increasing the costs already borne by a local agency for  
          programs or levels of service mandated by the 2011 Realignment  
          Legislation apply to local agencies only to the extent that the  
          state provides annual funding for the cost increase. Although  
          Proposition 30 specifies that legislation defining a new crime  
          or changing the definition of an existing crime is not subject  
          to this provision, changing the penalty for a crime is not  
          specifically exempted and could potentially require a subvention  
          of funds from the state. To the extent increasing the penalty  
          for concealing an accidental death is determined to change the  
          penalty for the existing crime, any increase in costs to local  
          agencies attributable to provisions of this legislation could  
          potentially require annual funding from the State.