BILL ANALYSIS
AB 2075
Page 1
Date of Hearing: March 16, 2006
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2075 (Cohn) - As Introduced: February 16, 2006
As Proposed to be Amended in Committee
SUMMARY : Specifies that provisions proscribing child abuse
and crimes of domestic violence are all the same class of crimes
or offenses for the purposes of joinder in the same accusatory
pleading under separate counts. Specifically , this bill:
1)Specifies offenses related to the physical abuse of a child
and domestic violence are all of the same class of crimes or
offenses and may be charged in the same accusatory pleading
under separate counts.
2)Allows a court to consolidate cases if two or more accusatory
pleadings are filed in the same court alleging crimes of
domestic violence, as specified.
EXISTING LAW :
1)States that an accusatory pleading may charge two or more
different offenses connected together in their commission, or
different statements of the same offense or two or more
different offenses of the same class of crimes or offenses,
under separate counts; if two or more accusatory pleadings are
filed in such cases in the same court, the court may order
them to be consolidated. The prosecution is not required to
elect between the different offenses or counts set forth in
the accusatory pleading, but the defendant may be convicted of
any number of the offenses charged; and each offense of which
the defendant is convicted must be stated in the verdict or
the finding of the court provided that the court in which a
case is triable, in the interests of justice and for good
cause shown, may in its discretion order that the different
offenses or counts set forth in the accusatory pleading be
tried separately or divided into two or more groups and each
of said groups tried separately. An acquittal of one or more
counts shall not be deemed an acquittal of any other count.
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(Penal Code Section 954.)
2)Provides that in cases in which two or more different offenses
of the same class of crimes or offenses have been charged
together in the same accusatory pleading, or where two or more
accusatory pleadings charging offenses of the same class of
crimes or offenses have been consolidated, evidence concerning
one offense or offenses need not be admissible as to the other
offense or offenses before the jointly charged offenses may be
tried together before the same trier of fact. (Penal Code
Section 954.1.)
3)The defendant may demur to the accusatory pleading at any time
prior to the entry of a plea when it appears upon the face
thereof either:
a) If an indictment, that the grand jury by which it was
found had no legal authority to inquire into the offense
charged or if an information or complaint that the court
has no jurisdiction of the offense charged therein;
b) That it does not substantially conform to the provisions
of existing law in case of an indictment or information;
c) That more than one offense is charged except as provided
in current law;
d) That the facts stated do not constitute a public
offense; or,
e) That it contains matter which, if true, would constitute
a legal justification or excuse of the offense charged or
other legal bar to the prosecution. [Penal Code Section
1004(1) to (5).]
4)Defines "domestic violence" as abuse perpetrated against any
of the following persons: a spouse or former spouse; a
cohabitant or former cohabitant as defined in current law; a
person with whom the respondent is having, or has had, a
dating or engagement relationship; a person with whom the
respondent has had a child where the presumption applies that
the male parent is the father of the child of the female
parent under current law; a child of a party or a child who is
the subject of an action under the Uniform Parentage Act,
where the presumption applies that the male parent is the
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father of the child to be protected; or, any other person
related by consanguinity or affinity within the second degree.
[Family Code Section 6211(a) to (f).]
5)States that any person who, under circumstances or conditions
likely to produce great bodily harm or death, willfully causes
or permits any child to suffer; inflicts thereon unjustifiable
physical pain or mental suffering; or having the care or
custody of any child, willfully causes or permits the person
or health of that child to be injured, or 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 a county jail not exceeding one year or in the
state prison for two, four, or six years. [Penal Code Section
273a(a).]
6)States any person who, under circumstances or conditions other
than those likely to produce great bodily harm or death,
willfully causes or permits any child to suffer; or inflicts
thereon unjustifiable physical pain or mental suffering; or
having the care or custody of any child, willfully causes or
permits the person or health of that child to be injured, or
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. [Penal Code Section 273a(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Current law
allows for consolidation in one court two or more different
offenses that are connected in their commission. (Penal Code
954.) However, the courts are not provided the same
opportunity for family code offenses such as domestic violence
and child abuse. Allowing the court the discretion of
consolidating these cases in the same manner as allowed in
Penal Code 954 will provide benefits to the victims and the
accused. A victim will not have to relive his or her tragedy
repeatedly by having to testify in multiple trials and the
defendant will not be subjected to the possibility of a
district attorney seeking multiple trials to achieve a desired
outcome. In a violent home, violence does not discriminate by
age and frequently it is perpetrated against both the mother
and children. The correlation between child abuse and
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domestic violence is a strong one."
2)Requirements to Join Offenses : Generally, an accusatory
pleading may charge two or more offenses connected together in
their commission; different statements of the same offense;
or, two or more different offenses of the same class of crimes
of offense under separate counts. [Penal Code Section 954.]
Discretion exists with the court to decide if joinder is
proper and may, in the interest of justice, sever counts that
have been properly joined. [ Belton vs. Superior Court (1993)
19 Cal.App.4th 1279.] The indictment joining offenses must
state the statutory grounds on which joinder is proper.
People vs. Marshall established the standard of review for a
court in determining a motion to sever. The court summarized
the factors as follows, ". . . would the evidence of the crime
be cross-admissible in separate trials; are some of the
charges unusually likely to inflame the jury against the
defendant; has a weak case been joined with a strong case or
another weak case so that the total evidence on the joined
charges may alter the outcome of some or all the of the
charged offenses; and is any of the charges a death penalty
offense; or does joinder of the charges convert the matter
into a capital case." [ People vs. Marshall (1993) 15 Cal.4th
1, 27.] Hence, under certain circumstances, the court abuses
its discretion in refusing a motion to sever because it is
contrary to the interest of justice and fair trial to the
defendant.
3)Cross Admissibility and the Constitutional Demands of Joinder :
Proposition 115 passed by the California voters in 1990 added
Penal Code Section 954.1 and stated that where two or more
offenses of the same class have been joined or consolidated,
evidence concerning one offense or offenses need not be
admissible as to the other offense or offenses before they can
be tried together. [ People vs. Bean (1988) 46 Cal.3rd 919 and
Penal Code Section 954.1.] Complete cross-admissibility is
not necessary for joinder. Before the passage of Proposition
115, in order for joinder to be proper, evidence to prove one
charge must be admissible to prove another charge at trial.
Under changes made to the California Constitution by
Proposition 115, however, cross-admissibility is just one
factor to be considered in deciding whether a court may grant
a motion to sever. A finding of cross-admissibility generally
dispels any inference of prejudice. [People vs. Mason (1991)
52 Cal.3rd 909.] However, particularly where
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cross-admissibility does not exist, meaning evidence of one
crime would not be admissible in a trial on the other crime,
the defendant's right to a fair trial may be compromised.
Courts must carefully weigh issues of judicial economy and the
defendant's right to a fair trial. A jury may well convict on
both charges if it is certain the defendant committed one but
unsure of the other. Hence, in order to preserve the
integrity of the judicial process and protect the defendant's
constitutional rights, courts must be allowed to carefully
weigh the consequences of joining counts.
4)Current Law Allows Prosecuting Agency to File a Motion for
Joinder of Domestic Violence and Child Abuse Charges : Under
current law, if a prosecuting attorney is able state the
statutory ground for joinder, he or she may join any
appropriate crimes, including domestic violence and child
abuse charges. Penal Code Section 954 states that if the
conduct is of the "same class of offenses", the People have
statutory grounds to join offenses. Crimes of abuse or
violence have been previously held to be of the "same class of
offenses". [ People vs. Gray (2005) 37 Cal.4th 168.] Also, if
the offenses are "connected together in their commission", the
prosecutor may also join the offenses. Hence, there is likely
sufficient statutory ground to join a charge of domestic
violence and a charge of child abuse. However, the court must
still rule on whether such joinder is proper under existing
law.
5)Arguments in Support :
6)Arguments in Opposition :
REGISTERED SUPPORT / OPPOSITION :
Support
California Correctional Supervisors Organization
California District Attorneys Association
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
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Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744