BILL ANALYSIS
AB 59
Page 1
Date of Hearing: April 19, 2005
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 59 (Cohn) - As Amended: April 13, 2005
SUMMARY : Provides for enhanced punishment for persons
convicted of domestic violence in the presence of any child
under 18 years of age. Specifically, this bill :
1)Provides that any person convicted of felony domestic
violence, as defined, in the presence of, any child under the
age of 18 years, when the person knew that such act was
committed in the child's presence, shall be punished by an
additional term of one year in a state prison.
2)States that any person convicted of a misdemeanor for an act
constituting domestic violence when the commission occurs in
the presence of a child under 18, when the person knew that
such act was committed in the child's presence, shall be
sentenced to at least 90 days for the offense.
3)Provides that if a mandatory jail term is required for the
underlying offense, that mandatory time shall be increased by
90 days.
EXISTING LAW :
1)Defines "domestic violence" as abuse committed against an
adult or a minor who is a spouse, former spouse, cohabitant,
former cohabitant, person with whom the suspect has had a
child, or is having or has had a dating or engagement
relationship. [Penal Code Section 13700(b).]
2)Defines "cohabitant" as two unrelated adult persons living
together for a substantial period of time, resulting in some
permanency of relationship. Factors that may determine
whether persons are cohabiting include, but are not limited to
[Penal Code Section 13700(b)]:
a) Sexual relations between the parties while sharing the
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same living quarters;
b) Sharing of income or expenses;
c) Joint use or ownership of property;
d) Whether the parties hold themselves out as husband and
wife;
e) The continuity of the relationship; and,
f) The length of the relationship.
3)Provides that any person who willfully inflicts upon a person
who is his or her spouse, cohabitant, former cohabitant, or
the mother or father of his or her child corporal injury
resulting in a traumatic condition is guilty of a felony.
States that upon conviction, the person shall be punished by
imprisonment in the state prison for two, three, or four
years; in a county jail for not more than one year; by a fine
of up to $6,000; or by both that fine and imprisonment.
[Penal Code Section 273.5.]
4)States that any person convicted of infliction of corporal
injury resulting in a traumatic condition for acts occurring
within seven years of a previous conviction of specified
offenses is guilty of an alternate misdemeanor/felony. Such
person shall be punished by imprisonment in a county jail for
not more than one year; by imprisonment in a state prison for
two, four or five years; or by both imprisonment and a fine of
up to $10,000. [Penal Code Section 273.5(e).] The specified
qualifying prior offenses are:
a) Battery;
b) Battery resulting in infliction of serious bodily
injury;
c) Sexual battery;
d) Assault with caustic chemicals;
e) Assault with a stun gun or taser; and,
f) Assault with a deadly weapon.
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5)Provides that the California Victim Compensation and
Government Claims Board may presume that a child who has been
the witness of a crime of domestic violence has sustained
physical injury. Further provides that a child who resides in
a home where a crime of domestic violence has occurred may be
presumed by the Board to have sustained physical injury
regardless of whether the child has witnessed the crime.
[Government Code Section 13955(f)(1).]
6)States that specified victims of crime may receive
reimbursement for medical expenses, psychiatric, psychological
or other mental health counseling, as specified. [Government
Code Section 13597(a)(2).]
7)States that battery is a willful and unlawful use of force or
violence upon the person of another. (Penal Code Section
242.)
8)Provides that battery is punishable by a fine not exceeding
$2,000; by imprisonment in a county jail not exceeding six
months; or by both that fine and imprisonment. [Penal Code
Section 243(a).]
9)Provides that when a battery is committed against a spouse or
similar person in a defined relationship, the battery is
punishable by a fine not exceeding $2,000; by imprisonment in
a county jail for not more than one year; or by both that fine
and imprisonment. [Penal Code Section 243(3)(1).]
1)Provides that if probation is granted or the execution or
imposition of sentence is suspended a defendant convicted of
domestic battery must participate in a batterer's treatment
program, as specified. [Penal Code Section 243(e).]
2)States that when a battery is committed against any person and
serious bodily injury is inflicted on the person, the battery
is punishable by imprisonment in a county jail not exceeding
one year or by imprisonment in the state prison for two,
three, or four years. [Penal Code Section 243(d).]
3)Provides that when a battery is committed against a spouse, a
person with whom the defendant is cohabiting; a person who is
the parent of the defendant's child, former spouse, fianc?, or
fianc?e; or a person with whom the defendant currently has, or
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has previously had, a dating or engagement relationship, the
battery is punishable by a fine not exceeding $2,000; by
imprisonment in a county jail for a period of not more than
one year; or by both that fine and imprisonment. [Penal Code
Section 243(e)(1).]
4)Makes a battery committed against any person where serious
bodily injury is inflicted punishable by imprisonment in a
county jail not exceeding one year or imprisonment in the
state prison for two, three, or four years. [Penal Code
Section 243(d).]
5)States that any person who personally inflicts GBI under
circumstances involving domestic violence in the commission or
attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for
three, four, or five years. [Penal Code Section 12022.7(e).]
6)Provides that assault with a deadly weapon other than a
firearm, or by any means of force likely to produce GBI, shall
be punished by imprisonment in the state prison for two,
three, or four years; in a county jail for not exceeding one
year; by a fine not exceeding $10,000; or by both the fine and
imprisonment. [Penal Code Section 245(a)(1).]
7)States that any person who, under circumstances likely to
produce GBI, willfully causes or permits any child to suffer
or inflicts unjustifiable physical or mental suffering shall
be punished by imprisonment in a county jail not exceeding one
year or in state prison for two, four, or six years. [Penal
Code Section 273(a).]
8)Provides a four-year enhancement for each violation of willful
harm to a child under circumstances likely to produce GBI.
(Penal Code Section 12022.95.)
9)States that a person convicted of harm or injury to a child
and is granted probation, the court shall order as a condition
of probation successful completion of at least one year of a
child abuser's treatment counseling program. [Penal Code
Section 273(c)(3)(A).]
10)Provides that the court shall impose enhanced terms of
imprisonment for specified felonies involving the infliction
of GBI. (Penal Code Section 12022.7.)
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11)States that the court shall impose the additional terms of
imprisonment for persons convicted of inflicting GBI while
committing or attempting a felony for specified offenses.
(Penal Code Section 12022.7.) The specified offenses and
enhanced terms of imprisonment are:
a) Infliction of GBI on any person not an accomplice in the
commission or attempted commission of a felony shall be
punished by an additional and consecutive term of
imprisonment in the state prison for three years;
b) Infliction of GBI on any person not an accomplice which
causes the victim to become comatose due to brain injury or
suffer permanent paralysis shall be punished by an
additional and consecutive term of imprisonment in the
state prison for five years;
c) Infliction of GBI on a person who is 70 years of age or
older, other than an accomplice, shall be punishable by an
additional and consecutive term of imprisonment in the
state prison for five years;
d) Infliction of GBI on a child under the age of five years
shall be punished by an additional and consecutive term of
imprisonment in the state prison for four, five, or six
years; and,
e) Personally inflicting GBI under circumstances involving
domestic violence shall be punished by an additional and
consecutive term of imprisonment in the state prison for
three, four, or five years.
12)Provides that the court shall impose the additional terms of
imprisonment under subdivision (a), (b), (c), or (d), supra,
but may not impose more than one of those terms for the same
offense. [Penal Code Section 12022.7(h).]
13)States that acts punishable by different provisions of the
law shall be punished under the provision that provides the
longest potential term of imprisonment, but in no case shall
the act be punished under more than one provision. [Penal
Code Section 654(a).]
14)Provides that when two or more enhancements may be imposed
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for the infliction of great bodily injury on the same victim
in the commission of a single offense, only the greatest of
those enhancements shall be imposed. [Penal Code Section
1170.1(g).]
15)States that when the statute specifies three possible terms
of imprisonment, the court shall order imposition of the
middle term, unless there are circumstances in aggravation or
mitigation of the crime. The court may not impose an upper
term by using the fact of any enhancement upon which sentence
is imposed. [Penal Code Section 1170(b).]
16)Provides that the following shall be considered a
circumstance in aggravation in imposing sentence in specified,
battery, and domestic violence offenses: (Penal Code Section
1170.76.)
a) The defendant is a member of the household of the
victim; or,
b) The defendant is a blood or marital relative of the
minor or victim; or,
c) The defendant or victim is the natural parent, adoptive
parent, step-parent or foster parent of the minor, and the
offense occurred in the presence of or was witnessed by the
minor.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "There is a
strong connection between a person committing domestic
violence as an adult and witnessing domestic violence as a
child. If domestic violence is committed in front of children
under 18 years old, that defendant shall receive an enhanced
penalty for the crime. The intent is focused on the
preventive side. Studies to verify the nexus between
witnessing domestic violence as a child and the impact it has
once that person reaches adulthood have been well documented,"
citing a number of studies regarding the effects upon children
of witnessing domestic violence. The studies cited effects
that included a high incidence of post traumatic stress
disorder, serious cognitive and developmental impairments,
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poor academic performance, and growing up to become abusive in
adulthood.
2)Current Enhanced Sentences : Under current law, persons
convicted of domestic violence resulting in corporal injury
are subject to greater penalties if they have certain prior
convictions occurring within seven years. Domestic violence
resulting in corporal injury resulting in a traumatic
condition with a qualifying prior offense subjects the
defendant to imprisonment in a county jail for not more than
one year, or in the state prison for two, three or five years;
a fine of up to $10,000; or both that fine and imprisonment.
The qualifying prior offenses are: [Penal Code Section
273.5(e)(1).]
a) Battery;
b) Battery resulting in infliction of serious bodily
injury;
c) Sexual battery;
d) Assault with caustic chemicals;
e) Assault with a stun gun or taser; and,
f) Assault with a deadly weapon.
Similarly, under current law, persons convicted of domestic
violence resulting in the infliction of corporal injury for
acts occurring within seven years of a prior conviction of
domestic battery are subject to enhanced penalties of
imprisonment in a state prison for two, three, or four years;
in a county jail for not more than one year, or by a fine of
up to $10,000; or by both that imprisonment and fine. [Penal
Code Section 273.5(e)(2).]
The California courts have interpreted Penal Code Section
273.5 by stating that that section is violated when the
defendant inflicts even a minor injury. Unlike other
felonies, e.g., aggravated battery which require serious or
GBI, "the Legislature has clothed persons . . . in intimate
relationships with greater protection by requiring less harm
to be inflicted before the offense is committed." [ People v.
Wilkins , 14 Cal. App. 4th 761 (1993), People v. Chaffer , 111
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Cal. App. 4th 1037, rev. denied (2003).]
The court has also found that there is a rational basis for
treating cohabitant batterers differently stating that "the
overriding purpose of Section 273.5 is to deter domestic
violence. Since enacting its predecessor statute in 1945, the
Legislature has continually broadened the scope of this
protection. . . . The Legislature's enactments reflect a
societal determination that domestic violence - once viewed as
a purely private matter in which the state was reluctant to
interfere - will no longer be tolerated." [ People v. Mora , 51
Cal. App. 4th 1349, 1355 (1996); Dant v. Superior Court , 61
Cal. App. 4th 380, 389 (1998).]
3)Presence of a Minor as an Aggravating Factor in Sentencing :
Existing law states that, in specified circumstances, the
sentencing court shall consider the presence of a minor during
the occurrence of domestic violence crimes as a circumstance
in aggravation of the crime in imposing a term of
imprisonment. (Penal Code Section 1170.76.)
4)Unintended Consequences : As pointed out by several letters in
opposition, this bill may have unintended consequences to the
battery survivor and her children, as well as negative effects
on immigrant and African-American communities. The battery
survivor may be subject to loss of custody of her children,
and economic hardship caused by longer imprisonment of the
batterer, and his potential deportation if he is an immigrant.
Do the deterrent effects of mandatory minimum jail sentences for
misdemeanors, and longer imprisonment for felonies, outweigh
the difficulties that may be caused to the victim and her
children?
5)Arguments in Support :
a) The Child Abuse Prevention Council of Contra Costa
County states, "This bill would take steps to safeguard
children who re caught in the vicious cycle of domestic
abuse. Not only would this bill offer children a hope or a
brighter future by helping to eradicate tolerance for abuse
in California, but will also protect them from much of the
emotional trauma associated with witnessing domestic
violence."
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b) The Latina Center states, "Minors who witness domestic
violence are considered victims also and the consequences
of this abuse can last a lifetime. To date fair justice
has not been done to minors who are being abused by
witnessing and suffering domestic violence. Sentences or
punishments for domestic violence abusers have to be more
severe as a preventive method especially when it involves a
minor. The Latina Center works mostly with Latinas.
Approximately 80 percent of these women are survivors of
domestic violence. We support services, education about
domestic violence, empowerment and leadership
opportunities."
c) The Gay and Lesbian Adolescent Social Services, Inc .
(GLASS) states, "This bill recognizes the deep emotional
scars domestic violence situations cause a child. This
bill shows that state government will protect children in
domestic violence situations by ensuring that perpetrators
of these crimes have harsher sentences, and may be taken
out of a home environment when an offense occurs in their
presences. This bill demonstrates that domestic violence
occurrences in the presence of a child has a greater cost
to society and therefore deserves a harsher punishment.
"GLASS believes that this bill will offer LGBT youth a
greater possibility to be placed in homes that are safer.
Also, this bill will clearly demonstrate that violence in
the presence of a child is unacceptable behavior that will
help raise self-esteem to better mainstream as productive
members of society."
6)Arguments in Opposition :
a) Free Battered Women states, "We do not believe that this
bill is the best way to achieve [the goals of increasing
the safety of adult survivors of domestic violence and
children who witness or are exposed to domestic violence,
as well as hold batterers accountable for their behavior]
for a number of reasons:
i) " Survivors of domestic violence are at
risk of arrest under the proposed legislation . Over
the past 20 years, increasing law enforcement
resources have been devoted to responding to domestic
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violence in the United States. As a result, we have
seen many unintended consequences of relying on the
criminal legal system to address violence against
women. Survivors of abuse are increasingly
inappropriately arrested for crimes relating to
domestic violence. Some states, like Oregon, saw an
increase in 'dual arrests' (i.e., arrest of both
parties) after enacting a law similar to this bill
because police officers held battered mothers
accountable for 'not stopping' abuse by batterers. We
are concerned that similar increases in arrests of
survivors would follow the passage of this bill.
ii) " The Proposed Bill Is Too Expensive . There
are literally thousands of defendants convicted each
year in California for crimes of domestic violence who
could be subject to the penalty enhancement proposed
by this bill. To incarcerate those convicted of
felonies for an additional year (at $30,000 per year,
plus medical expenses and the costs of defending
appeals) and an additional three months' incarceration
for misdemeanors when half the school districts in the
State cannot pay their bills is fiscally
irresponsible.
iii) " The Bill Unduly Restricts Judicial Discretion
and Duplicates Existing Law . We believe that Judges
should have some discretion regarding sentencing.
This bill says anyone convicted of relevant crimes
'shall' be given an enhanced sentence, meaning that
judges have no authority to shorten or eliminate the
additional time. California Penal Code Section
1170.76 states that if domestic violence occurs in the
presence of a child, the court must consider this a
circumstance in aggravation. Thus, the judge is
required to consider adding extra time, but is not
bound to do so.
iv) " Survivors of Domestic Violence Could End
Up Losing Custody of Their Children . Another effect
of the increased criminalization of domestic violence
is that, once the police are called, survivors of
battering get caught up in other state systems, such
as the child welfare system, when they simply wanted
the violence against them to stop in the moment.
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"With a bill [like this bill] involving children who
witness domestic violence, survivors of battering are
especially at risk of being referred to Child
Protection Services, even when the survivor is not the
perpetrator of the abuse, and when the children
themselves have not been physically harmed. Children
of mothers who are battered are sometimes taken away
by the state not because the mothers have harmed their
children, but because many child welfare systems hold
battered mothers accountable for the abuser's violence
against the mother.
v) " Enhancing Penalties Does Not
Necessarily Increase Children's Safety . In many
jurisdictions, criminal cases can take a long time to
make their way through the courts (i.e., often a year
or more). Any potential benefits of the enhanced
penalties are therefore postponed; in the meantime
there are plenty of opportunities for the abuser to
coerce, stalk, or physically abuse adult survivors of
domestic violence and their children while the
criminal case against the abuser is pending. If the
consequences of a conviction are higher, there may be
more reason for batterers to try to coerce the
survivor or her children into not participating in the
prosecution.
vi) Children Should Not Be in a Position of
Having to Testify Against One or Both Parents . In a
situation where penalties are enhanced for crimes
committed in front of children, children may be asked
to verify their presence, especially in cases where
the survivor of domestic violence does not want to
participate in the prosecution of her partner. When
children testify against an abusive parent, the risk
of future harm to them is greatly intensified. They
may also experience fear and psychological trauma from
being in a position where their statements have the
power to affect such serious consequences for a
parent, whom they likely still love despite the abuse.
In cases where survivors of domestic violence are
also charged, there are also potential negative
effects on children if they are asked to testify
against the parent who is the victim of ongoing
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battering.
vii) " This Bill Could Have a Disproportionate Impact
on Immigrant Communities . The proposed penalty
enhancements in this bill could trigger deportation
proceedings for immigrants who are charged with these
crimes. Under United States Immigration Law, people
who are sentenced to 365 or more days in jail or
prison are subject to deportation.
"In situations where the batterer is an immigrant, the
effects of deportation can be significant for
families. Even if the survivor of battering called
the police to intervene, it does not necessarily mean
that she wants her partner to be deported. The
batterer's deportation could lead to economic
instability for the family, affect the survivor's own
immigration status, and involuntarily separate the
family.
"Also, Bay Area Advocates report that many monolingual
immigrant survivors of domestic violence are being
arrested and charged with crimes. Were immigrant
survivors to be convicted under the terms of this
bill, they also would be at risk of deportation, with
obvious implications for their well-being and that of
their children.
viii) " This Bill Could Disproportionately Affect
Communities Already Over-Represented in Prisons . In
California, as elsewhere throughout the United States,
people of color are disproportionately arrested and
incarcerated. According to the California Department
of Corrections, 30% of men in California's state
prisons are African-American, although
African-Americans make up only seven percent of
California's population. In addition, the vast
majority of those charged and convicted of crimes come
from low-income communities.
"Penalty enhancements that lead to even longer periods
of incarceration can have devastating effects on
communities. Because California is struggling to
figure out a comprehensive strategy for responding to
the needs of prisoners and their families when
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prisoners are released back into their communities, we
find it difficult to support legislation that leads to
increased incarceration.
Free Battered Women believes that "we all share a common
goal of wanting to increase the safety of children who
witness or are exposed to domestic violence and to hold
batterers accountable for their behavior. Rather than
enhancing criminal penalties for acts of domestic violence
in front of a child, however, we would prefer to see
community-based solutions to responding to the needs of
adult survivors of battering and their children. Proven
tools for increasing the safety of mothers who are battered
include:
i) "Providing access to emergency shelters,
transitional housing, and affordable housing for battered
women and their children.
ii) "Job training and increased employment opportunities
for women who are otherwise economically controlled by
the batterer.
iii) Safety planning, advocacy, and voluntary counseling
services for adult survivors of domestic violence and
their children, provided by community-based programs for
survivors of domestic violence, and,
iv) Supervised visitation centers staffed by supervisors
trained about domestic violence."
a) According to the Domestic Violence Policy and Law
Working Group (a group of advocates and attorneys striving
to bridge the gap between policies and laws for survivors
of domestic violence), "Through its limitation of
discretion, this bill unnecessarily risks the fairness of
the process afforded to criminal defendants as they face
additional loss of liberty.
"The sentencing enhancements [of this bill] would not
necessarily serve the interests of children or increase
their safety. Given the stakes involved, batterers might
be more likely to coerce a domestic violence survivor or
her children to recant or avoid involvement in the
prosecution. Additionally, criminal cases are often
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pending for significant periods of time, during which
batterers could continue to engage in battering behaviors
that place children and domestic violence survivors at
risk. Children might also experience trauma if asked to
testify against a parent in court about the abuse.
"This bill also places a disproportionate impact on immigrant
communities. Enhanced sentences lead to the risk of a
batterer's deportation, which could risk a survivor and her
children's economic stability and immigration status, as
well as involuntarily separate the family. Such
consequences could also deter individuals in immigrant
populations from seeking law enforcement assistance when
they are battered, placing themselves and their children at
further risk."
b) According to the California Attorneys for Criminal
Justice , "we recognize that domestic violence is a serious
crime, and can have a detrimental effect on others in the
household, who are not themselves the victim of the
physical assault. However, we feel that the current penal
provisions permit the courts to consider the severity of
the criminal act, its effect on all the members of the
household, and the characteristics of the defendant in
determining what constitutes an appropriate punishment.
Given the broad range of criminal behavior which falls into
the category of domestic violence, we believe that the
individual judge is in the best position to weigh the
seriousness of the criminal conduct and exercise his or her
discretion in imposing sentence.
"Additionally, we are concerned about the financial impact of
this bill. Already emptied state and county coffers will
be tapped for the increased costs of the proposed mandatory
incarceration. And, the victims' families will suffer
financial repercussions, especially where the defendant is
the breadwinner and loses his job as a result of the
mandatory three month jail term."
c) According to the California Public Defenders
Association , "While we appreciate the strides the author
has made to narrow this bill, we are still troubled by some
of the issues its enactment would present. This bill now
requires that the accused be aware of the presence of
children, which is an improvement, but there is no
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requirement that the child actually heard or saw the
conduct. There seems to be no requirement that the child
even be aware that a crime is occurring ? do consequences
extend to the presence of infants, who have no awareness or
recall beyond the moment?
"The fact that children may be present during the commission
of a domestic violence crime is a circumstance of the
crime, nothing more. It is a factor, an aggravating
factor, which can be considered and given weight by the
Court in determining the appropriate sentence for a
misdemeanor. The degree to which the crime is aggravated
is a factually driven issue that is best assessed by the
Judge who heard the facts. In other words, this bill seeks
to impose automatic punishment for conduct that is better
viewed on a continuum, and proportioned appropriately by
the sentencing authority. As for felonies, the conduct
could be alleged as an aggravating factor in compliance
with Blakely and, if found true, used to enhance the term
of imprisonment as already allowed under current law."
REGISTERED SUPPORT / OPPOSITION :
Support
California Correctional Supervisors Organization
Child Abuse Prevention Council of Contra Costa County
Gay and Lesbian Adolescent Social Services, Inc.
California District Attorneys Association
Lambda Letters Project
Latina Center
Los Angeles County District Attorney's Office
Sheriff, San Bernardino County
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Free Battered Women
Domestic Violence Policy and Law Working Group
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744