BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 2075 (Cohn) 5
As Amended March 20, 2006
Hearing date: June 13, 2006
Penal Code
AA:mc
DOMESTIC VIOLENCE AND CHILD ABUSE:
JOINDER OF COUNTS AND CONSOLIDATION
HISTORY
Source: Vern Pierson, Amador County Chief Assistant District
Attorney
Prior Legislation: None
Support: Child Abuse Prevention Council of Contra Costa County;
California District Attorneys Association; California
Correctional Supervisors Organization; Los Angeles
County District Attorney' Office
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 72 - Noes 0
KEY ISSUES
SHOULD A COURT'S DISCRETION TO SEVER COUNTS IN APPROPRIATE DOMESTIC
VIOLENCE AND CHILD ABUSE CASES BE ELIMINATED?
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SHOULD CHILD ABUSE AND DOMESTIC VIOLENCE BE DEEMED "ALL OF THE SAME
CLASS OF CRIMES OR OFFENSES" AS A MATTER OF LAW FOR PURPOSES OF
JOINDER?
PURPOSE
The purpose of this bill is to enhance the power of prosecutors
to join counts of child abuse and domestic violence, as
specified.
Current law provides that "(a)n 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,
and 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." (Penal Code 954.)
This bill would amend this provision to provide that child
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abuse, as specified,<1> "committed by willfully causing or
permitting a child to suffer or inflicting thereon unjustifiable
physical pain or mental suffering under circumstances or
conditions likely to produce great bodily harm or death,"
assault resulting in the death of a child under eight years of
age,<2> and corporal punishment or injury of a child,<3> and any
crime of domestic violence, as specified,<4> "are all of the
same class of crimes or offenses and may be charged in the same
accusatory pleading under separate counts."
This bill additionally would provide that if "two or more
accusatory pleadings are filed in the same court alleging any
crime of domestic violence, as specified,<5> the court may order
them to be consolidated."
COMMENTS
1. Stated Need for This Bill
The author states:
. . .
AB 2075 will benefit both the victim and the
accused. The victims will not have to relive
their tragedy repeatedly by having to testify in
multiple trials. The defendant will not be
subjected to the possibility of an overzealous
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
--------------------
<1> The language specifies, "violations of (Penal Code)
section 273a . . . ."
<2> Penal Code 273ab.
<3> Penal Code 273d.
<4> Penal Code 243(e)(1) and 273.5.
<5> Id.
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both the mother and children. The correlation
between child abuse and domestic violence is a
strong one. . . .
Also, in many places felonies and misdemeanors are
usually prosecuted by different public law
offices. As a result, there is a risk that those
in charge of misdemeanor prosecutions may proceed
without adequately assessing the seriousness of a
defendant's conduct or considering whether a
felony prosecution should be undertaken. A well
advised defendant may plead guilty to a
misdemeanor to foreclose a subsequent felony
prosecution the misdemeanor prosecutor may be
unaware of or may choose to ignore.
Finally, AB 2075 avoids needless repetition of
evidence, saves the victim the trauma of reliving
their victimization, and saves the state and
defendant time and money.
2. What This Bill Would Do
As explained above, current law allows an accusatory pleading to
charge two or more different
offenses connected together in their commission. In addition,
current law allows an accusatory pleading to charge two or more
different offenses of the same class of crimes or offenses,
under separate counts. Thus, current law gives prosecutors wide
latitude to bring separate charges against a defendant in the
same trial. Trial courts may, in their discretion, order
charges to be tried separately, "in the interest of justice and
for good cause shown." In addition, if two or more accusatory
pleadings are filed meeting these criteria in the same court,
the court may order them to be consolidated.
This bill proposes to amend this statute to state that child
abuse, assault resulting in the death of a child under eight
years of age, and corporal punishment or injury of a child, and
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a crime of domestic violence, as specified, "are all of the same
class of crimes or offenses and may be charged in the same
accusatory pleading under separate counts." This bill also
would amend the statute to state that if "two or more accusatory
pleadings are filed in the same court alleging any crime of
domestic violence, as specified, the court may order them to be
consolidated."
On its face, this bill appears to make no substantive change to
the law, since joinder of counts already is allowed under the
law. However, as discussed below, under strict rules of
statutory construction this bill could be interpreted to remove
the discretion of the court to order that separate crimes of
child abuse and domestic violence be tried separately when they
are charged in the same accusatory pleading under separate
counts.
This bill would expressly allow for joinder of counts and
consolidation in cases where joinder already is allowed.
However, since section 954 already allows for both joinder and
consolidation, it is not legally necessary to specifically
enumerate the offenses this bill describes.
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It is a basic rule of statutory construction that terms in a
statute are presumed to have meaning. Courts will thus not
likely conclude that words in a bill are simply meant to be
filler - what is called "surplusage" - unless the inclusion of
the terms appears clearly to be an error or an oversight. "It
is a 'cardinal rule' that a construction under which some words
in a statute are rendered surplus should be avoided; some effect
should be given to every word and phrase." (1 Witkin Cal. Crim.
Law Intro. Crimes 32.) To give effect to every word and
phrase of this section as amended by this bill, this measure
would likely be interpreted to eliminate the court's discretion
to sever counts involving these offenses, regardless of other
relevant factors, which courts now must take into consideration.
This bill therefore could be interpreted to essentially
guaranty a prosecutor's decision to join these types of cases
against a severance motion. This bill would segregate the
section's existing severance authority into a new subdivision
(a), and not replicate it in a new subdivision (b), which would
expressly give prosecutors the authority to charge all of these
crimes in the same accusatory pleading under separate counts.
This bill also would specifically provide that child abuse and
domestic violence crimes are "all of the same class of crimes or
offenses." The bill also establishes that these kinds of crimes
are "all of the same class of crimes or offenses" as a matter of
law, regardless of the particular facts and circumstances of the
cases.
IF THIS BILL MERELY ENUMERATES CRIMES ALREADY COVERED BY THE
LAW, IS THE BILL NECESSARY?
OR, WOULD THIS BILL BE INTERPRETED TO GIVE PROSECUTORS ABSOLUTE
AUTHORITY TO CHARGE CHILD ABUSE AND DOMESTIC VIOLENCE CASES IN
THE SAME ACCUSATORY PLEADING UNDER SEPARATE COUNTS?
SHOULD THE COURT'S DISCRETION TO SEVER COUNTS OF CHILD ABUSE AND
DOMESTIC VIOLENCE BE ELIMINATED?
ARE COURTS CURRENTLY SEVERING THESE CASES INAPPROPRIATELY?
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SHOULD THE STATUTE WHICH PERMITS THE JOINDER OF ACCUSATORY
PLEADINGS OF "DIFFERENT OFFENSES OF THE SAME CLASS OF CRIMES OR
OFFENSES" BE AMENDED TO EXPRESSLY PROVIDE THAT SPECIFIED CHILD
ABUSE AND DOMESTIC VIOLENCE CRIMES "ARE ALL OF THE SAME CLASS OF
CRIMES OR OFFENSES"?
3. Background: Joinder of Counts and Consolidation
Penal Code section 954, as set forth above, "provides that a
single accusatory pleading may, in separate counts, charge two
or more offenses connected in their commission or of the same
class. The statute goes on to state that 'if two or more
accusatory pleadings are filed in such cases in the same court,
the court may order them to be consolidated.' Thus, whenever one
accusatory pleading could have joined the charges, the court may
consolidate the separate pleadings for trial." (5 Witkin Cal.
Crim. Law Crim Trial 394 (emphasis added).)
In certain circumstances, severance of counts is required to
preserve the defendant's right to a fair trial. "This
determination
depends upon the particular circumstances of each
case. The pertinent factors are these: (1) would
the evidence of the crimes be cross-admissible in
separate trials; (2) are some of the charges
unusually likely to inflame the jury against the
defendant; (3) 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 of the charged offenses;
and (4) is any one of the charges a death penalty
offense, or does joinder of the charges convert
the matter into a capital case. . . . ( People v.
Marshall (1997) 15 Cal.4th 1, 27-28 (citations
omitted.)
The following hypothetical illustrates the kind of case where
joinder could be unfairly prejudicial to a defendant. During
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the course of a marriage, one spouse strikes the other in the
face, causing significant and observable bruising injuries. The
victim files for divorce and, during the course of the divorce
and child custody proceedings, alleges that the other spouse
physically abused the couple's young child. The domestic
violence charge is supported by overwhelming evidence. The
child abuse charge is serious and potentially inflammatory, but
the evidence relating to the charge is contradictory (for
example) and the defendant's guilt is far from certain.
Arguably, under this bill if the domestic violence and child
abuse counts were charged together by the prosecutor, under no
circumstances could the court sever the counts and order them to
be tried separately. Combining the domestic violence charge
with the child abuse charge in such a case could lead the jury
to find the defendant guilty of child abuse based on the
assumption that if he committed one crime, he probably committed
both, rather than relying solely on the evidence relating to the
child abuse charge. This is known as the "prejudicial spillover
effect."
AS A MATTER OF LAW, SHOULD THE PROSECUTION HAVE UNFETTERED
DISCRETION TO JOIN CHILD ABUSE AND DOMESTIC VIOLENCE CASES?
IS THERE ANY CONCEIVABLE CIRCUMSTANCE WHERE THE JOINDER OF THESE
TWO TYPES OF CRIMES WOULD BE SO PREJUDICIAL TO A DEFENDANT AS TO
DENY HIM OR HER THE RIGHT TO A FAIR TRIAL?
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