BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair A
1995-96 Regular Session B
2
9
AB 2936 (Cunneen) 3
As amended March 27, 1996 6
Hearing date: June 11, 1996
Family and Penal Codes
ALA:js
CHILD ABDUCTION
HISTORY
Source: Santa Clara County District Attorney
Prior Legislation: AB 1038 (Vasconcellos) (1995; vetoed by
the Governor); AB 3179 (Vasconcellos) (1994 (died
in Assembly)); AB 159X (Vasconcellos) (1994 (died
in Assembly))
Support: Attorney Generalos Office; California District
Attorneys Association
Opposition: None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD EXISTING CHILD ABDUCTION STATUTES BE DELETED AND REWRITTEN, AND
SPECIFIED FAMILY CODE SECTIONS PERTAINING TO CHILD ABDUCTION BE ADDED AND
AMENDED?
PURPOSE
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AB 2936 (Cunneen)
Page 2
Current law provides that in the absence of a court order
determining rights of custody or visitation to a minor child,
every person having a right of custody of the child who
maliciously takes, detains, conceals, or entices away that
child within or outside the state, without good cause, and
with the intent to deprive the custody right to that child,
shall be punished by imprisonment in the county jail for a
period of not more than one year, a fine of $1,000, or both,
or imprisonment in the state prison for 16 months, two or
three years, a fine of not more than $10,000, or both.
(Penal Code sec. 277)
Current law further provides that every person, not having a
right of custody, who commits the above offense with the
intent to detain or conceal that child from a person,
guardian, or public agency having the lawful charge of the
child shall be punished by imprisonment in the state prison
for two, three, or four years, a fine of not more than
$10,000, or both, or imprisonment in a county jail for not
more than one year, a fine of not more than $1,000, or both.
(Penal Code sec. 278)
Current law also provides that every person who shares with
another person or a public agency a right to physical custody
of or visitation with a child pursuant to an order, judgment,
or decree of any court and who abducts the child with the
intent to deprive the other person of that right to custody
or visitation, shall be punished by imprisonment in the state
prison for 16 months, two or three years, a fine not
exceeding $10,000, or by imprisonment in a county jail not
exceeding one year, a fine not exceeding $1,000, or both.
(Penal Code sec. 278.5)
Current law authorizes a peace officer investigating a report
of a violation of one of the above provisions to take a minor
child into protective custody if it appears to the officer
that any person unlawfully will flee the jurisdictional
territory with the minor child. (Penal Code sec. 279)
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AB 2936 (Cunneen)
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This bill would enact the oParental Kidnapping Prevention
Act,o and essentially consolidate, clarify and refine
existing law in this area. Specifically, this bill would do
the following:
Authorize the court, upon request of the district attorney,
to issue a protective order to secure the recovery of an
abducted child. The request of the district attorney must
include a written declaration that the warrant for the
child is necessary in order for the district attorney to
perform his or her statutory duties to take all actions
necessary to locate a child for purposes of adjudicating
custody and enforcing custody or visitation orders.
Consolidate two child abduction offenses so that every person
who abducts a child from a lawful custodian or person
having visitation rights and maliciously deprives that
other person of his or her right to physical custody or
visitation shall be punished by imprisonment in a county
jail for not more than one year, a fine not exceeding
$1,000, or both, or by imprisonment in the state prison for
16 months, two or three years, a fine not exceeding
$10,000, or both.
Provide that every person, not having a right to custody, who
abducts a child with the intent to detain or conceal that
child from a lawful custodian shall be punished by
imprisonment in a county jail for not more than one year, a
fine not exceeding $1,000, or both, or by imprisonment in
the state prison for two, three, or four years, a fine not
exceeding $10,000, or both.
Enumerate several aggravating factors the court must consider
when sentencing someone under the above provisions,
including:
(a) The child was exposed to a substantial risk
of physical injury or illness;
(b) The defendant inflicted or threatened to
inflict physical harm on a parent or lawful
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AB 2936 (Cunneen)
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custodian of the child or on the child at the
time of or during the abduction;
(c) The defendant harmed or abandoned the child
during the abduction;
(d) The child was taken, enticed away, kept,
withheld, or concealed outside the United
States;
(e) The child has not been returned to the lawful
custodian;
(f) The defendant previously abducted or
threatened to abduct the child;
(g) The defendant substantially altered the
appearance or the name of the child;
(h) The defendant denied the child appropriate
education during the abduction;
(i) The length of the abduction; and
(j) The age of the child.
Provide that the court must consider the following mitigating
factors when sentencing a defendant under the above child
abduction provisions:
(a) The defendant returned the child unharmed and
prior to arrest or issuance of a warrant for
arrest, whichever is first; and
(b) The defendant provided information and
assistance leading to the child's safe return.
Authorize a peace officer to take a minor child into
protective custody under any of the following
circumstances:
(a) It reasonably appears to the officer that a
person is likely to conceal the child, flee the
jurisdiction with the child, or, by flight or
concealment, evade the authority of the court.
(b) There is no lawful custodian available to
take custody of the child.
(c) There are conflicting custody orders or
conflicting claims to custody and the parties
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AB 2936 (Cunneen)
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cannot agree which party should take custody of
the child.
(d) The child is an abducted child.
Make various clarifying amendments to relevant child
abduction provisions.
The purpose of this bill is to clean-up and consolidate the
child abduction statutes.
COMMENTS
1. Stated Need for This Bill.
The author states:
California is the nation's leader in the handling
of parental kidnapping because of our unique
statutory scheme which mandates district attorney
involvement in these tragic cases. Because we
have recognized the seriousness of parental
kidnapping and the devastation it wreaks on the
children involved, the other states look to
California for model legislation and enforcement.
This bill remedies parental kidnapping enforcement
problems which have developed after appellate
court decisions. It also amends certain Family
Code sections to give the courts and law
enforcement new measures to protect and recover
parentally-abducted children.
2. Prior Legislation.
Last year, this Committee passed (6-0) AB 1038
(Vasconcellos), which was the predecessor to this bill and,
like this bill, was sponsored by the Santa Clara District
Attorney and supported by the California District Attorneys
Association. AB 1038 was vetoed by the Governor, who
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AB 2936 (Cunneen)
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expressed support for its provisions simplifying and
clarifying current child abduction laws, but voiced concerns
over provisions of the bill which did not conform to the
sentencing structure in current law distinguishing between
abductions by persons with custody rights to those without
any custody rights.
This bill appears to address the Governoros concerns, and is
virtually identical to AB 1038 with the following exceptions:
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this bill does not include an amendment to Family Code
section 3132 regarding prosecutorial immunity;
this bill retains the sentences and sentencing application
contained in current law;
this bill eliminates or revises some of the aggravating
circumstances contained in
AB 1038;
this bill technically revises some of the language in
provisions contained in AB 1038; and
this bill makes technical changes to some of the provisions
contained in AB 1038.
3. Double-Referral to Judiciary Committee.
This bill has been double-referred to Judiciary Committee.
4. Technical Amendments.
The author and/or the Committee may wish to make the
following two technical amendments:
Page 3:21: typographical error (olingero should be
olongero); and
Page 5:4: the reference to oa peace officer of the
California State Policeo should be deleted, since as of
July 11, 1995, the State Police has been absorbed into the
California Highway Patrol.
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