BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1088|
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THIRD READING
Bill No: SB 1088
Author: Nguyen (R) and Bates (R), et al.
Amended: 3/28/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/19/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
SUBJECT: Wrongful concealment: accidental death
SOURCE: Author
DIGEST: This bill raises the penalty for concealing an
accidental death from a misdemeanor to an alternate
felony-misdemeanor (wobbler).
ANALYSIS:
Existing law:
1)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 fine of
between $1,000 and $10,000, or both. (Pen. Code § 152, subd.
(a).)
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2)Provides that to conceal an accidental death means to do one
of the following acts:
a) Perform an overt act that conceals the body or directly
impedes the ability of authorities or family members to
discover the body.
b) Directly destroy or suppress evidence of the actual
physical body of the deceased, including, but not limited
to, bodily fluids or tissues.
c) Destroy or suppress the actual physical instrumentality
of death. (Pen. Code § 152, subd. (b).)
3)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)
4)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 16 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 16 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)
5)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 $5,000, or by imprisonment pursuant to
subdivision (h) of Section 1170, or in a county jail not
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Page 3
exceeding one year, or both a fine and imprisonment. (Pen.
Code §§ 32-33.)
This bill makes the existing misdemeanor of active concealment
of an accidental death an alternate felony-misdemeanor
(wobbler).
Background
According to the author:
Erica Alonso, a resident of Laguna Hills, went missing
on February 15, 2015. Her body was not found until
April 27, 2015 in a dry creek bed near San Juan
Capistrano. Erica's death was not a homicide.
However, someone who had been 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
called for 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.
Senate Bill 1088 increases the penalty for the
concealment of a body due to an accidental death to a
"wobbler." In this case, a penalty increase to a
"wobbler" would allow a judge to impose a greater
penalty if the circumstances warrant it.
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
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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
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.)
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 11 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
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civil (monetary) damages in the tort of "wrongful death."
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. One issue that
might arise on felony 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.)
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.
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 the
police have focused their attention as the likely perpetrator of
a crime. (People v. Stansbury (1993) 4 Cal.4th 1017,
1050-1054.) 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.
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
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
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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.)
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
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 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
law.
SUPPORT: (Verified5/27/16)
Anaheim Police Department
California State Sheriffs' Association
Los Angeles County Sheriff's Department
Orange County District Attorney
Orange County Sheriff's Department
Santa Ana Police Department
Several hundred individuals
OPPOSITION: (Verified5/27/16)
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American Civil Liberties Union of California
California Public Defenders Association
Prepared by:Jerome McGuire / PUB. S. /
5/28/16 16:50:12
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