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)
                                                        Page 3


 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)
                                                        Page 4


              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)
                                                        Page 5


              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)
                                                        Page 6


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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