BILL ANALYSIS Ó SB 1088 Page 1 Date of Hearing: June 28, 2016 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 1088 (Nguyen) - As Amended March 28, 2016 SUMMARY: Increases the penalty for concealing an accidental death from a misdemeanor to an alternate felony-misdemeanor. Specifically, this bill: 1)States that if the crime of concealing an accidental death is punished as a misdemeanor, then it is punishable by imprisonment in a county jail for not more than one year, or by a fine of at least $1,000 and up to $10,000, or by both. SB 1088 Page 2 2)States that if the crime of concealing an accidental death is punished as a felony, then the punishment is imprisonment pursuant to subdivision (h) of Section 1170, or by a fine of at least $1,000 and up to $10,000, or by both. EXISTING LAW: 1)Makes it a misdemeanor, punishable by a jail term of up to one year, or a fine of between $1,000 and $10,000, or both, to actively conceal an accidental death, or attempt to do so. (Pen. Code, § 152, subd. (a).) 2)States that to conceal an accidental death means to do one of the following: 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; or, c) Destroy or suppress the actual physical instrumentality of death. (Pen. Code, § 152, subd. (b).) 3)Provides that any person who, after the commission of a SB 1088 Page 3 felony, harbors, conceals, or aides the perpetrator in such a felony, with the intent to help the perpetrator escape arrest or prosecution is an accessory to the felony. (Pen. Code, § 32.) 4)Punishes an accessory as alternate felony-misdemeanor, or by a fine of up to $5,000, or both fine and imprisonment. (Pen. Code, § 33.) 5)States that, except in a case where a different punishment is prescribed, a person who, having knowledge of the commission of a crime, takes money or anything of value, or promise thereof, in exchange for concealing that crime, or abstaining from prosecution, or for withholding any evidence, is punishable as follows: a) If the crime was punishable by death or imprisonment in the state prison for life; by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170; b) If the crime was punishable by imprisonment in the state prison for any other term than life; by imprisonment in a county jail not exceeding six months, or pursuant to subdivision (h) of Section 1170; and, c) If the crime was a misdemeanor, by imprisonment in a county jail not exceeding six months, or by fine of up to $1,000. (Pen. Code, § 153.) 6)States that the punishment for a felony which is not otherwise SB 1088 Page 4 proscribed in a different statute, a felony is punishable by 16 months, or 2 or 3 years in state prison, unless the offense is punishable in county jail under realignment. (Pen. Code, § 18, subd. (a).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "SB 1088 would provide an appropriate avenue to address the current sentencing structure by increasing the consequences for anyone who moves a body after an accidental death. If this bill is not passed, families of the victims of body dumping will remain negatively impacted by the law. Therefore a pathway to allow judges discretion in the classification of a crime, as a misdemeanor or a felony, is essential to resolving the issue of body dumping. By increasing the crime to a felony, the statute of limitations would extend from one to three years. This would provide more time for authorities to hold those responsible for body concealment." 2)Impetus for this Bill: Erica Alonso, a Laguna Hills resident, was the inspiration for this bill. Ms. Alonso went missing in February of this year, and her body was found about two months later in a remote spot in Cleveland National Forest. An autopsy concluded Ms. Alonso died of an overdose, consisting of a combination of a lethal dose of alcohol and drugs. Ms. Alonso's car was found far from the scene, in a neighborhood of Aliso Viejo. As a result, it has been suggested that someone moved her body. SB 1088 Page 5 ( http://www.ocweekly.com/news/erica-alonso-saga-inspires-body-d umping-bill-by-state-sen-janet-nguyen-6992400# ) The person who may have moved the body has not been identified. However, assuming the body was moved, the existing penalty for such an act is up to one year in jail and a potential fine of up to $10,000. The background provided by the author notes that the community is frustrated that any person who might have concealed the body faces only misdemeanor punishment. Notably, Penal Code section 152 does not apply to a person who caused the death. Penal Code section 152 also does not apply to a person who is an accessory after the commission of a crime. SB 139 (Johnson), Chapter 396, Statutes of 1999, which created the crime of concealing an accidental death, also initially sought to punish the offense as an alternate felony-misdemeanor. However at that time, the Legislature deemed that misdemeanor punishment was more appropriate. Should the punishment for this crime now be increased based on a single incident of which all the facts are not yet established? 3)Jail Overcrowding: According to a December 2014 report by the Stanford Criminal Justice Center at Stanford Law School titled Court Ordered Population Caps in California Jails, California's county jails are facing increasing adult daily populations. Many counties are facing capacity constraints on their population. The report notes: "Currently, 19 of the 58 California county jail systems (33%) are operating under a court-ordered population cap (see Figure 2). Court-ordered population caps are typically issued at a facility level rather than a county level (as many counties operate several jail facilities) and a significant share of California jail facilities currently have a population cap. According to the Board of State and SB 1088 Page 6 Community Corrections (BSCC) Jail Profile Survey data, as of March 2014 of the 119 county jail facilities, 39 facilities (33%) were operating under a court-ordered population cap. Most notably, as of the beginning of 2014, nearly two-thirds (65%) of jail inmates in California are in custody in counties with a population cap. And because these court orders have been in place for decades, the share of inmates in counties with population orders has been relatively stable since the data started being collected. Given that several of the largest counties are under court orders, including Los Angeles, Riverside, San Bernardino, and San Diego, it is not surprising that such a large share of California's jail inmates are in custody in cap counties. These increased pressures on California jails have occurred in a relatively short period of time and counties have been forced to make difficult decisions about how to manage their growing jail populations." (Court-Ordered Population Caps in California County Jails, p. 6. (< http://law.stanford.edu/wp-content/uploads/sites/defa ult/files/child-page/183091/doc/slspublic/Jail%20popn%2 0caps%201.15.15.pdf >) Given the concerns about jail overcrowding in many counties, should the punishment for concealing an accidental death be increased to allow for up to three years in jail? 4)Argument in Support: According to the Los Angeles County Sheriff's Department, "Current law makes it a misdemeanor for a person who has knowledge of an accidental death to actively conceal or attempt to conceal that death by concealing the body. While in most instances the penalty is appropriate, there are some cases where significant malfeasance has taken place. "Not only does the act of concealing or moving a body create SB 1088 Page 7 significant challenges for law enforcement when investigating an accidental death, the act also prevents the family members of the deceased from receiving the closure needed when losing a loved one. "This bill appropriately provides prosecutors with the discretion to raise the penalty from a misdemeanor to a penalty when necessary." 5)Argument in Opposition: According to the California Public Defenders Association, "SB 1088 seeks to increase the punishment for a violation of Penal Code § 152 (concealing accidental death) from a misdemeanor to a felony. Currently, § 152 is punishable as a misdemeanor and by a year in jail. SB 1088 seeks to permit the offense to be charged as a felony and to triple the punishment (up to three years in jail). It is important to note that § 152 only deals with accidental deaths - deaths that are the result of criminal conduct are not affected by this statute. Consequently, SB 1088 does not address a statute which arguably contributes to public safety - instead SB 1088 merely promises to add to the list of non-violent Californian's convicted of felonies and to contribute to our incarceration crisis, all without adding anything of real benefit. Because SB 1088 fails to contribute to public safety, drastically increases jail sentences for non-violent conduct and increases the rolls of non-violent Californians whose lives will be ruined by felony convictions, this bill is out of step with meaningful criminal justice reform." 6)Prior Legislation: a) AB 1432 (Mitchell), Chapter 805, Statutes of 2012, requires a parent or guardian to report to law enforcement the death or disappearance of a child, and punishes a violation as a misdemeanor, or by a fine of up to $1,000, or both. b) SB 139 (Johnson) Chapter 396, Statutes of 1999, provides SB 1088 Page 8 that a person who actively conceals an accidental death, as defined, is guilty of a misdemeanor. c) SB 140 (Johnson) of the 1999-2000 Legislative session, would have created criminal penalties for failing to report an accidental death. SB 140 failed passage in the Senate Committee on Public Safety. REGISTERED SUPPORT / OPPOSITION: Support Anaheim Police Department California State Sheriffs' Association Los Angeles County Sheriff's Department Orange County District Attorney's Office Orange County Sheriff's Department Santa Ana Police Department Opposition American Civil Liberties Union of California SB 1088 Page 9 California Public Defenders Association Legal Services for Prisoners with Children Analysis Prepared by:Sandy Uribe / PUB. S. / (916) 319-3744