BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 1872 (Cohn) 2
As Amended March 28, 2006
Hearing date: June 27, 2006
Penal Code
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SENTENCE ENHANCEMENTS :
PREGNANT WOMEN
HISTORY
Source: Author
Prior Legislation: None
Support: Los Angeles County District Attorney's Office;
Children's Civil Rights Union; Junior Leagues of
California State Public Affairs Committee; California
Correctional Supervisors Organization; Peace Officers
Research Association of California; California Women
Lawyers; California District Attorneys Association;
California Peace Officers' Association; California
Police Chiefs' Association; 1 individual
Opposition:California Public Defenders Association; American
Civil Liberties Union (unless amended); California
Attorneys for Criminal Justice; Taxpayers for Improving
Public Safety
Assembly Floor Vote: Ayes 80 - Noes 0
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KEY ISSUE
SHOULD THE CURRENT FIVE-YEAR SENTENCE ENHANCEMENT FOR INFLICTING
INJURY ON A PREGNANT WOMAN THAT RESULTS IN THE TERMINATION OF
HER PREGNANCY BE EXPANDED TO INCLUDE GREAT BODILY INJURY WHICH
DOES NOT CAUSE ANY PHYSICAL HARM RELATING TO THE PREGNANCY?
PURPOSE
The purpose of this bill is to expand the existing five-year
enhancement for inflicting injury on a pregnant woman that
results in the termination of her pregnancy to include the
infliction of great bodily injury on a pregnant woman,
regardless of any medical impact related to the pregnancy. In
addition, this bill would remove specific intent to inflict the
injury.
Current law imposes a five-year sentencing enhancement for any
"person who, during the commission of a felony or attempted
felony, knows or reasonably should know that the victim is
pregnant, and who, with intent to inflict injury, and without
the consent of the woman, personally inflicts injury upon a
pregnant woman that results in the termination of the
pregnancy," as specified. (Penal Code 12022.9.)
This bill would delete the intent requirement to inflict injury.
This bill also would expand this provision to additionally
apply to any person who inflicts great bodily injury upon a
pregnant woman.
This bill also would recast these provisions.
COMMENTS
1. Stated Need for This Bill
The author states:
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Domestic abuse against pregnant women has
immediate and lasting effects (on) women and their
pregnancies. In addition, homicide is the second
leading cause of traumatic death for pregnant and
post partum women in the United States. Each
year, 324,000 pregnant women in the country are
battered by their intimate partners.
Current law only allows for a five-year
enhancement if the baby dies. Given the massive
amount of violence committed against pregnant
women and the impact on the women and their
pregnancies, additional punishment should not be
meted out based only on whether the batterer got
lucky and the baby survived the assault.
2. What This Bill Would Do
As explained above, current law provides for a five-year penalty
enhancement if, during the commission of a felony or attempted
felony, a person inflicts injury on a pregnant woman that
results in the termination of the pregnancy where the person
knew or reasonably should have known the victim was pregnant and
intended to inflict the injury without the consent of the woman.
The injury now required for this enhancement is an injury that
results in the termination of the pregnancy. This does not
require the death of a baby, as the author states above. For
example, as discussed in more detail below, if the defendant
punched a pregnant woman, resulting in a medical need for
immediate delivery of the baby through a caesarian section, the
pregnancy was "terminated" for purposes of this enhancement.
This bill would expand this five-year enhancement to include the
infliction of great bodily injury. The injury would not require
any harm relating to the pregnancy. In addition, this bill
would remove specific intent to inflict the injury.
3. GBI Penalty Enhancements under Current Law - Including for
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Domestic Violence
Existing law provides for a number of penalty enhancements that
apply when a defendant personally inflicts great bodily injury
on a victim, including a victim who is pregnant, and a victim of
domestic violence. According to the author's statement, this
bill appears largely directed at domestic violence against
pregnant women. Current law provides that an additional and
consecutive enhancement of three, four, or five years must be
imposed if the defendant personally inflicted great bodily
injury under circumstances involving domestic violence in the
commission or attempted commission of the offense.<1> (Penal
Code 12022.7(e).) The victim for these purposes may be any
person injured during the domestic violence that occurred during
the commission or attempted commission of the felony, regardless
of whether the victim is the direct victim of the domestic
violence itself, so long as domestic violence is being
perpetrated against some person, during the course of which the
great bodily injury is inflicted on the victim. (Penal Code
13700(b).) In addition, if the defendant inflicts great bodily
injury on a victim during the commission or attempted commission
of certain sex offenses, the court must impose an enhancement of
five years for each offense in addition to the sentence for the
felony conviction. (Penal Code 12022.8.)
IN LIGHT OF EXISTING ENHANCEMENTS THAT APPLY WHEN GBI OCCURS
UNDER CIRCUMSTANCES INVOLVING DOMESTIC VIOLENCE, IS THIS BILL
NECESSARY?
The current five-year enhancement applicable to pregnant women
applies when the crime results in the termination of a
pregnancy. As explained in People v. Taylor (2004) 119
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<1> "The court is required to impose the middle term, unless
there are circumstances in aggravation or mitigation, and to
state its reasons for its choice on the record at the time of
sentencing. It is unclear whether this enhancement may be
imposed in addition to an enhancement under Penal Code Section
12022.7(a), (b), (c), or (d)." California Criminal Defense
Practice 91.35 (citations omitted).
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Cal.App.4th 628:
(T)he point of the enhancement is to punish the
defendant for injuring a woman in a particular
manner with a particular result, not for the
particular harm that comes to the fetus she is
carrying. Given this logic, the enhancement is
properly imposed when the pregnancy "terminates" -
i.e., ends - in any manner as a result of the
defendant's intentional felonious act. If only a
miscarriage or an abortion could constitute the
"termination" of a pregnancy under this statute,
the Legislature could have so specified. Here,
defendant's assault on Garvon White ended her
ongoing pregnancy two months prematurely by
forcing the immediate delivery of her fetus
through a C-section. Under the logic of Dennis,
and applying the plain language of the statute, we
conclude that the enhancement was supported by the
evidence. (People v. Taylor at 644-645 (citations
omitted) (emphasis added).)
This bill would expand this enhancement in that it would punish
a defendant for injuring a pregnant woman in a particular manner
- infliction of "great bodily injury" - but would not require
the particular result now required for the enhancement -
termination of a pregnancy.
Current law requires an additional, consecutive sentence of
three years if the defendant personally inflicts great bodily
injury on any person other than an accomplice in the commission
or attempted commission of a felony. (Penal Code
12022.7(a).) The enhancement is increased to instead be an
additional, consecutive sentence of five years if either: (1)
the injury caused the victim to become comatose due to brain
injury, whether that condition is permanent or not (Penal Code
12022.7(b)); (2) the injury caused the victim to suffer
paralysis of a permanent nature; (Penal Code
12022.9(b)(3)(A)); or (3) the injury was inflicted on a person,
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other than an accomplice, who was 70 years of age or older at
the time. (Penal Code 12022.7(c).)
The great bodily injury enhancement, for any of the
circumstances discussed above, does not require the specific
intent to inflict great bodily injury. (Penal Code
12022.7(a).)
The trial court may not impose more than one great bodily injury
type of enhancement based on the same infliction of great bodily
injury on the same victim. When one or more enhancements may be
imposed for the infliction of great bodily injury in the
commission of a single offense, only the greatest is to be
imposed. (Penal Code 1170.1(g).)<2>
IN LIGHT OF EXISTING PENALTY ENHANCEMENTS WHEN GREAT BODILY
INJURY IS INFLICTED, IS THIS BILL NECESSARY?
4. "Great Bodily Injury"
For the existing three-year penalty enhancement for inflicting
great bodily injury in the commission of a felony or attempted
felony, "great bodily injury" is defined as "a significant or
substantial physical injury." (Penal Code 12022.7.) The
following commentary, at California Criminal Defense Practice
91.35, discusses the use of this term with respect to the
application of the enhancement:
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<2> See California Criminal Defense Practice 91.35, infra,
for a concise summary of great bodily injury enhancements.
Penal Code Section 12022.7 is not
unconstitutionally vague for use of the term
"great bodily injury." Persons of common
intelligence can apply these words of long usage
to discern what injuries they are forbidden to
inflict under threat of an enhanced sentence.
Great bodily injury is defined as a "significant
or substantial physical injury," beyond that which
is inherent in the underlying substantive offense.
Whether the harm suffered by a victim constitutes
great bodily injury is a question of fact for the
jury, and appellate courts will not upset the
jury's finding unless there is insufficient
evidence to support the finding.
The appellate courts are in conflict over whether
or not a broken bone may constitute great bodily
injury as a matter of law. The First and Second
Appellate Districts have concluded that a broken
bone constitutes a significant and substantial
physical injury within the meaning of Penal Code
Section 12022.7. The Fourth and Fifth Appellate
Districts, however, hold that the severity of a
broken bone may range from significant to
substantial to minor, and thus it should be a jury
question as to whether or not the bodily injury is
great under the meaning of the statute.
Some injuries that have sustained a finding of
great bodily injury include the following:
(1) Facial injuries and a broken ankle;
(2) Multiple contusions, swelling, and
discoloration of the body;
(3) A hand swollen to twice its normal size;
(4) A pregnancy and subsequent abortion;
(5) A broken nose, lost tooth, and cuts on nose,
cheek, and lip;
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(6) Bullet wounds in chest and arm;
(7) A fractured jaw;
(8) Venereal herpes transmitted during
commission of rape; and
(9) During the commission of a rape, extensive
bruises and abrasions over the legs, knees, and
elbows, injury to the neck, and a soreness in the
vaginal area so severe that the ability to walk
is significantly impaired.<3>
SHOULD THIS BILL BE AMENDED TO INCLUDE A CROSS REFERENCE TO THE
DEFINITION OF "GREAT BODILY INJURY" TO SECTION 12022.7(f)?
5. Opposition - Penalty Enhancement Based on Status of Victim as
Pregnant
The American Civil Liberties Union urges that this bill be
amended to require that the great bodily injury cause medical
complications directly related to the pregnancy. They argue:
We are concerned that the California Legislature
would be creating a precedent with unintended
consequences by allowing for increased penalties
merely because a woman is pregnant, even though the
act has no effect whatever on the pregnancy.
By treating pregnant women as "fragile vessels" in
need of special protection, we lay the groundwork
for treating pregnant women differently in
employment and in education. Women could be
excluded from certain jobs or vocational schools
during pregnancy, even though there is no empirical
evidence to suggest that pregnancy would be at risk
by the woman's exposure to the environment.
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<3> Id. (citations omitted.)
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Ultimately, such protective legislation will
undermine reproductive rights and women's right to
autonomy and privacy. We strongly support laws
that protect women's interest in bearing healthy
children, but laws that single out women for
disparate treatment because they are pregnant -
where no actual impact on pregnancy is demonstrated
- set a dangerous precedent for women's rights.
(emphasis in original.)
SHOULD THIS BILL BE AMENDED TO REQUIRE THAT THE GBI CAUSE
MEDICAL COMPLICATIONS DIRECTLY RELATED TO THE PREGNANCY?
6. Specific Intent
Under existing law, any person with the intent to inflict injury
and inflicts injury upon a pregnant woman which causes the
termination of that pregnancy is subject to a five-year
enhancement. This is the only injury enhancement which requires
that the perpetrator intend to inflict injury, allowing a
perpetrator who inflicts injury to claim that he or she did not
mean to inflict injury or that the injury was an accident. This
bill deletes the specific intent requirement from this
provision, which is not inconsistent with other penalty
enhancements for infliction of great bodily injury.
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