BILL ANALYSIS
AB 253
Page 1
Date of Hearing: March 15, 2005
Counsel: Steven Meinrath
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 253 (Aghazarian) - As Introduced: February 8, 2005
As Proposed to be Amended in Committee
SUMMARY : Creates a new felony, punishable by 16 months, 2 or 3
years in state prison where any parent, guardian or caregiver of
a minor unlawfully uses cocaine, cocaine base, PCP, LSD, heroin,
methamphetamine or 3,4-methylenedioxy amphetamine (MDMA) in the
presence of, or witnessed by, a minor under his or her care.
EXISTING LAW :
1)Provides that to use or be under the influence of heroin,
cocaine base, cocaine or PCP is a misdemeanor, punished by a
minimum mandatory 90 days to a maximum of one year in the
county jail. [Health and Safety Code Section 11550(a).]
2)States that possession of any one of specified controlled
substances, including heroin, cocaine base or cocaine is a
felony, punishable by 16 months, 2 or 3 years in state prison.
[Health and Safety Code Section 11350(a).]
3)Provides that possession of any one of specified controlled
substances, including PCP, LSD, MDMA or methamphetamine, is an
alternate felony-misdemeanor, punishable by imprisonment in
the county jail for up to one year or in state prison for 16
months, 2 years or 3 years. [Health and Safety Code Section
11377(a).]
4)States that every law enforcement and social services agency
is encouraged to implement written policies for its response
to narcotics crime scenes where a child is either immediately
present or where there is evidence that a child lives, by
January 1, 2005. These policies shall reflect the fact that
exposing a child to the manufacturing, trafficking, and use of
narcotics is criminal conduct and that a response coordinated
by law enforcement and social services agencies is essential
to the child's health and welfare. [Penal Code Section
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13879(a).]
5)States that the needs of a drug-endangered child are best
served with written policies encouraging the arrest of an
individual for child endangerment where there is probable
cause that an offense has been committed, coordinated with an
appropriate investigation of the child's welfare by child
protective agencies. Protocols that encourage a dependency
investigation contemporaneous with a law enforcement
investigation at a narcotics crime scene, when appropriate,
are consistent with a child's best interest. [Penal Code
Section 13879(b).]
6)Provides that every person who commits any act which causes or
encourages any person under the age of 18 to become a
delinquent or violate any law or encourages the minor to
follow any course of conduct or to live in a way which would
tend to cause that minor to become a delinquent or violate any
law is guilty of a misdemeanor, punishable by up to one year
in the county jail; a fine of up to $2,500; or both. [Penal
Code Section 272(a).]
7)Provides that any person who, under circumstances likely to
produce great bodily harm or death, having the care or custody
of any child willfully causes or permits that child to be
placed in a situation where his or her person or health is
endangered shall be punished by imprisonment in state prison
for two, four, or six years or for up to one year in county
jail. [Penal Code Section 273a(a).]
8)Provides that any person who, under circumstances or
conditions other than those likely to produce great bodily
harm or death, having the care or custody of any child,
willfully causes or permits that child to be placed in a
situation where his or her person or health may be endangered,
is guilty of a misdemeanor, punishable by up to six months in
the county jail; a fine of up to $1,000; or both. [Penal Code
Section 273a(b - c).]
9)Provides that if the court grants probation to any person who
violated either of the offenses described in #7 or #8 above,
the court must impose the following conditions or state for
the record its reasons for not doing so: (a) a term of
probation for at least four years; (b) a criminal court
protective order protecting the victim from further acts of
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violence or threats, and, if appropriate, residence exclusion
or stay-away conditions; (c) successful completion of no less
than one year of a child abuser's treatment program approved
by the probation department and paid for by the defendant;
and, (d) if the offense was committed while the defendant was
under the influence of drugs or alcohol, the defendant shall
abstain from the use of drugs or alcohol during the period of
probation and shall be subject to random drug testing by his
or her probation officer.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author: "Consuming
illegal drugs in the presence of a minor should be considered
a felony child endangerment and not treated as a misdemeanor."
2)Adequacy of Existing Law : While this bill creates a felony,
punishable by up to three years in state prison, for ingesting
certain specified controlled substances in the presence of a
minor, under existing law mere possession of any controlled
substances specified in this bill is punishable by up to three
years in state prison. [Health and Safety Code Sections
11350(a), 11377(a).] Additionally, under existing law, using
or being under the influence of heroin, cocaine base, cocaine
or PCP requires a minimum mandatory 90 days in county jail and
the court may impose up to one year in county jail. [Health
and Safety Code Section 11550(a).] Also, whenever a child is
present or even living in a house where narcotics are being
used, existing law encourages all law enforcement agencies to
adopt protocols which include conducting a dependency (child
custody) investigation contemporaneous with a law enforcement
investigation. [Penal Code Section 13879(a) and (b).]
The danger posed by a caregiver using drugs in the presence of
an infant or very young child would be primarily that an
intoxicated caregiver cannot properly care for a child and
this places the child in danger. Existing law provides that
any person who, under circumstances likely to produce great
bodily harm or death to a child under his or her care, causes
or permits that child to be placed in a situation where the
child's health is endangered may be punished by up to six
years in state prison. [Penal Code Section 273a(a).] The
risk need not be life threatening, as long as there are risks
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of great bodily harm.
Furthermore, there is no requirement that the actual result be
great bodily injury for the felony punishment to be imposed.
[ People v. Odom (1991) 226 Cal App 3d 1028.] Therefore, where
the caretaker's drug use puts the child at risk of great
bodily harm, existing penalties are greater than those
proposed in this bill. Even where there is no risk of great
bodily harm, existing law provides that any person who causes
or permits a child under his or her care to be placed in a
situation where the child's health may be endangered is guilty
of a misdemeanor, punishable by up to six months in the county
jail. [Penal Code Section 273a(b - c).] Use of
methamphetamine in a residence where a minor resided was
recently cited as a factor in sustaining a conviction under
Penal Code Section 273a(b). [ People v. Little (2004) 115 Cal.
App. 4th 766, 772.] As noted above, in such a situation, the
penalties for the drug violations would also be applicable, as
was indeed true in Little .
The danger of a caregiver taking drugs in the presence of an
older child also includes the risk that the child would be
influenced by the adult's behavior and would be more inclined
to engage in similar behavior. Under existing law, a person
who commits any act which would tend to encourage a minor to
break the law is guilty of contributing to the delinquency of
a minor and is punishable by up to one year in the county
jail. [Penal Code Section 272(a).]
3)Expands "Three Strikes Law" : This bill creates a new felony.
The creation of any new felony expands the Three Strikes Law.
Under the Three Strikes Law, a defendant with two prior
serious or violent felonies must receive a term of at least
25-years-to-life for the commission of any new felony. Where
the defendant has a single prior serious or violent felony, he
or she shall be sentenced to twice the normal term upon
conviction of any new felony.
4)Arguments in Support : According to the Californians for
Drug-Free Schools, "According to the National Center of
Substance Abuse and Addiction at Columbia University, over 80%
of domestic violence cases are attributable to alcohol and
drugs. Any teeth you can put into the law to break the
pattern of abuse and protect children can only help to get
kids to adulthood intact, where hopefully they will thereafter
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never have problems."
5)Arguments in Opposition :
a) The Drug Policy Foundation states, "[AB 253] would
disproportionately affect low-income women and women of
color. It has been shown that low-income women and women
of color who use drugs are more likely to encounter legal
interventions such as prosecution or reports to child
protective services than their white middle-class and
upper-class counterparts." [Roberts, D. "Unshackling
Black Motherhood". 95 Michigan Law Review 105 (1997).]
b) The Family Law Section, State Bar of California states,
"This bill changes certain acts from a misdemeanor to a
felony. If a person uses controlled substances in front of
children, they would be sent to prison for two to three
years. This is problematic as it runs contrary to
Proposition 36, under which persons addicted to drugs are
not sentenced to prison but rather are sent for treatment
for their addiction. This would also have serious
ramifications for parents reunifying with their children in
juvenile dependency proceedings as cases involving children
under three years old give parents only six months to
reunify with the children. In addition, parents in
contested custody cases may use this provision against the
other parent, guardian, or caregiver."
6)Author's Amendments . The author will present technical
amendments.
REGISTERED SUPPORT/OPPOSITION :
Support
California District Attorneys Association
California Narcotic Officers' Association
California Peace Officers' Association
California Police Chefs Association
California State Sheriffs' Association
Drug-Fee Kids: American's Challenge
Drug-Free Schools Coalition
Los Angeles County Sheriff's Department
National Alliance for Health and Safety
Sheriff, County of San Bernardino
AB 253
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1 private citizen
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Drug Policy Alliance Network
Drug Policy Foundation
Family Law Section, State Bar of California
Analysis Prepared by : Steven Meinrath / PUB. S. / (916)
319-3744