BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 561 (Carter)
As Introduced February 25, 2009
Hearing date: June 9, 2009
Penal Code
JM:br
BATTERY ON HIGHWAY WORKERS
HISTORY
Source: San Bernardino Public Employees Association
Prior Legislation: SB 1509 (Lowenthal) - Ch. 410, Stats. 2008
AB 1686 (Leno) - Ch. 243, Stats. 2007
Support: Glendale City Employees Association; San Luis Obispo
County Employees Association; Santa Rosa City Employees
Association; California District Attorneys Association;
California-Nevada Conference of Operating Engineers;
California State Association of Counties; League of
California Cities; Regional Council of Rural Counties;
San Bernardino County Board of Supervisors; American
Association of State County and Municipal Employees;
City of Palm Desert
Opposition:None known
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Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUES
EXISTING LAW INCLUDES MISDEMEANORS WITH ENHANCED PENALTIES FOR
ASSAULTS OR BATTERIES ON CALTRANS HIGHWAY WORKERS OR CALTRANS
CONTRACTORS.
SHOULD THESE OFFENSES ALSO APPLY WHERE THE ASSAULTED HIGHWAY WORKER
WAS AN EMPLOYEE OF A LOCAL GOVERNMENT ENTITY?
IN THE CRIMES OF ASSAULT AND BATTERY ON A HIGHWAY WORKER, SHOULD THE
EXISTING REFERENCE TO CALTRANS CONTRACTORS BE CLARIFIED TO SPECIFY
THAT THE CRIME APPLIES WHERE THE CONTRACTOR WAS WORKING UNDER A
CALTRANS CONTRACT AT THE TIME OF THE OFFENSE?
PURPOSE
The purpose of this bill is to provide that a misdemeanor
assault or battery on a highway worker employed by a local
government shall be subject to the same enhanced penalties - a
maximum jail term of one year and a fine of up to $2000 - as an
assault or battery on a Caltrans highway worker or Caltrans
contractor.
Existing law defines an assault as an attempt to commit a
violent injury on another, although a person is guilty of
assault if he or she does any act knowing that the natural and
probable consequences of that act is infliction of injury on
another person. (People v. Williams (2001) 26 Cal.4th 779; Pen.
Code 240.)
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Existing law provides that simple assault (in which great bodily
injury is not likely to occur) is a misdemeanor, punishable by a
jail term of up to 6 months, a fine of up to $1000, or both.
(Pen. Code 241, subd. (a).)
Existing law provides that where the victim of an assault is a
custodial officer, traffic officer, firefighter, EMT, physician
or nurse providing emergency care, lifeguard, process server,
traffic officer, code enforcement officer, or animal control
officer engaged in the performance of his or her duties, and the
person committing the assault is aware of the victim's status,
the crime is a misdemeanor, punishable by a county jail term of
up to 1 year, a fine of up to $2000, or both. (Pen. Code 241,
subd. (c).)
Existing law provides that when an assault is committed against
any person on the property of,<1> or on a motor vehicle of, a
public transportation provider,<2> the offense shall be punished
by a fine not to exceed . . . ($2,\000), or by imprisonment in a
county jail not to exceed one year, or by both the fine and
imprisonment. (Pen. Code 241.3.)
Existing law provides that any person who commits an assault
upon the person of another with a deadly weapon or instrument
other than a firearm or by any means of force likely to produce
---------------------------
<1> This section provides that "'on the property of' means the
entire station where public transportation is available,
including the parking lot reserved for the public who utilize
the transportation system."
<2> "(b) As used in this section, "public transportation
provider" means a publicly or privately owned entity that
operates, for the transportation of persons for hire, a bus,
taxicab, streetcar, cable car, trackless trolley, or other motor
vehicle, including a vehicle operated on stationary rails or on
a track or rail suspended in air, or that operates a schoolbus."
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great bodily injury shall be punished by imprisonment in the
state prison for 2, 3, or 4 years, or in a county jail for not
exceeding one year, or by a fine not exceeding . . . ($10,000),
or by both the fine and imprisonment. (Pen. Code 245, subd.
(a)(1).)
Existing law defines a battery as "any willful and unlawful use
of force or violence upon the person of another." (Pen. Code
242.)
Existing law provides that simple battery (battery not causing
injury requiring medical attention) is a misdemeanor punishable
by a county jail term of up to 6 months, a fine of up to $1000,
or both. (Pen. Code 242.)
Existing law provides that battery producing "serious bodily
injury," as defined, is an alternate felony-misdemeanor,
punishable by imprisonment in the county jail for up to one
year, a fine of up to $1000 or both, or by imprisonment in state
prison for 2, 3 or 4 years and a fine of up to $10,000. (Pen.
Code 243, subd. (d).)
Existing law defines serious bodily injury as a serious
impairment of physical condition, including, but not limited to
loss of consciousness; concussion; bone fracture; protracted
loss or impairment of function of any bodily member or organ; a
wound requiring extensive suturing; and serious disfigurement.
(Pen. Code 243, subd. (f)(4).)
Existing law provides that where the victim of a simple battery
is a custodial officer, traffic officer, firefighter, EMT,
physician or nurse providing emergency care, lifeguard, process
server, traffic officer, code enforcement officer, or animal
control officer engaged in the performance of his or her duties,
the crime is a misdemeanor, punishable by a county jail term of
up to one year, a fine of up to $2000, or both. The fact that
the defendant knew, or should have known, the status of the
victim is an element of this crime. (Pen. Code 243, subd.
(b).)
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Existing law provides that where the victim of a battery is a
custodial officer, traffic officer, firefighter, EMT, physician
or nurse providing emergency care, lifeguard, process server,
traffic officer, code enforcement officer, or animal control
officer engaged in the performance of his or her duties, and an
injury is inflicted on the victim, the crime is an alternate
felony-misdemeanor, punishable by a county jail term of up to
one year, a fine of up to $2000, or both, or by a prison term
of 16 months, 2 years or 3 years and a fine of up to $10,000.
The fact that the defendant knew, or should have known, the
status of the victim is an element of this crime. (Pen. Code
243, subd. (c).)
Existing law provides that when a battery is committed against
an operator of or passenger on a bus, taxicab, streetcar, cable
car, trackless trolley, or other motor vehicle, as specified, or
against a schoolbus driver, or against a station agent or ticket
agent for the entity providing the transportation, and the
person who commits the offense knows or reasonably should know
the status of the victim, the offense shall be punished by a
fine not exceeding ($10,000), or by imprisonment in a county
jail not exceeding one year, or by both that fine and
imprisonment. Where the victim suffers an injury, the offense
is an alternate felony-misdemeanor, punishable by a fine of up
to $10,000, a prison term of 16 months, 2 years or 3 years, or
by a jail term of up to one year. (Pen. Code 243.3.)
Existing law provides that when an assault is committed against
a highway worker - defined as a Caltrans worker or Caltrans
contractor engaged in the performance of his or her duties - and
the person committing the offense knows or reasonably should
know the status of the victim, the offense is a misdemeanor,
punishable by a fine not to exceed $2000, imprisonment in a
county jail up to one year; or both. (Pen. Code 241.5.subds.
(a) and (c).)
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Existing law states that when a battery is committed against the
person of a highway worker engaged in the performance of his or
her duties and the person committing the offense knows, or
reasonably should know, the status of the victim, the offense is
a misdemeanor, punishable by a fine not exceeding $2000,
imprisonment in a county jail not exceeding one year; or both.
(Pen. Code 243.65.)
This bill , for purposes of enhanced penalties for assault or
battery on a highway worker, revises the definition of "highway
worker" to include a contractor with the California Department
of Transportation (Caltrans) or an employee of a local
government entity, as specified, who performs maintenance,
repair, or construction of highways; or local streets and road
infrastructure.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<3>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
---------------------------
<3> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
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Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<4>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Local street and road workers put their lives on the
line every day to perform an important public
service. They construct and maintain the
infrastructure for local streets and roads, in many
cases working in close proximity to fast moving
traffic. With increasing regularity, these workers
report becoming the victims of assault and battery by
motorists ranging from verbal abuse to having objects
----------------------
<4> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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thrown at them or, in a few cases, actually being
struck by a vehicle. Overall, the incidence of
motorist impatience, aggressive driving, and road
rage, appear to be increasing. Unfortunately, local
streets and road workers, who may be perceived as the
cause of traffic congestion and delay, often become
the targets of motorists' ire. Examples of
particularly serious recent incidents have included
an employee shot with a paint ball gun, another shot
at with a BB gun, and one attacked with jumper
cables. Employees who work on local streets and
roads believe that verbal abuse is very common and
that the incidence of more serious incidents may be
increasing.
While assault and battery are already criminal
offenses, current penalties do not appear to be
sufficient to deter dangerous, and in some cases
potentially deadly, assaults on local streets and
roads workers. Due to the nature of their work
environment, these employees' safety can be at risk
even under the best of circumstances. Given their
vulnerability, they deserve the greatest protection
possible against abuse by the public.
2. Assault and Battery Crimes under Existing Law
Existing statutory law contains a confounding plethora of
assault and battery crimes. The following chart illustrates the
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tangled patchwork of the law in this area:<5>
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| Victim | Assault: | Battery: |
| | Crime/Penalty | Crime/Penalty |
|---------------------+---------------------+---------------------|
|Anybody |Simple assault: up |(1) Simple battery: |
| |to 6 months in jail; | up to 6 months in |
| |fine of up to $1000, |jail; fine of up to |
| |or both. (PC |$2000, or both. |
| |241(a).) |(2) Serious bodily |
| | |injury: wobbler |
| | |(jail up to 1 year, |
| | |or prison 2/3/4). |
| | |(PC 243(a).) |
|---------------------+---------------------+---------------------|
|Anybody |Simple assault on |Simple battery on |
| |school or park |school property, |
| |property: up to 1 |park property, or |
| |year in jail; fine |the grounds of a |
| |up to $2000, or |public or private |
| |both. (PC 241.2.) |hospital: Fine up |
| | |to $2000; jail up to |
| | |1 year. |
| | |(PC 243.2.) |
|---------------------+---------------------+---------------------|
|Anybody | |Simple battery on |
| | |the property of, or |
| | |in a motor vehicle |
| | |of, a public |
| | |transportation |
---------------------------
<5> The numerical designations in the chart following the term
"prison" denote the term of imprisonment. For example, "16/2/3"
means 16 months, 2 years or 3 years; 2/3/4 means 2, 3 or 4
years; and so forth. In addition, the penalties in this chart
do not reflect additional enhancements which may apply under
separate sections of law. Finally, the specific professional
identified are persons engaged in their duties, and known (or
should have been known) by the defendant to be engaged in their
duties, as specified in the referenced statutes.
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| | |provider: fine up to |
| | |$2000; jail up to 1 |
| | |year. (PC |
| | |243.35.) |
|---------------------+---------------------+---------------------|
|Anybody | |Throwing or placing |
| | |caustic chemicals |
| | |with intent to |
| | |disfigure: prison |
| | |2/3/4. |
| | |(PC |
| | |244.) |
|---------------------+---------------------+---------------------|
|Anybody |Assault with a | |
| |deadly weapon or | |
| |instrument other | |
| |than a firearm or by | |
| |any means of force | |
| |likely to produce | |
| |great bodily injury: | |
| | wobbler: jail up to | |
| |1 year, fine up to | |
| |$10,000, prison | |
| |2/3/4, or fine and | |
| |imprisonment. | |
| |(PC 245(a)(1).) | |
-----------------------------------------------------------------
-----------------------------------------------------------------
| Victim | Assault: | Battery: |
| | Crime/Penalty | Crime/Penalty |
|---------------------+---------------------+---------------------|
|Anybody |Anybody |Assault with a |
| | |firearm: jail not |
| | |less than 6 months |
| | |or prison 2/3/4, or |
| | |by both $10,000 fine |
| | |and imprisonment. |
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| | |(PC 245(a)(2).) |
|---------------------+---------------------+---------------------|
|Anybody |Assault with | |
| |semiautomatic | |
| |firearm: prison | |
| |3/6/9. | |
| |(PC 245(b).) | |
|---------------------+---------------------+---------------------|
|Anybody |Assault by stun gun | |
| |or taser: wobbler, | |
| |16/2/3. | |
| |(PC 244.5(b).) | |
|---------------------+---------------------+---------------------|
|Peace Officers and |Assault by stun gun | |
|Firefighters |or taser: wobbler, | |
| |2/3/4. | |
| |(PC 244.5(c).) | |
|---------------------+---------------------+---------------------|
|Peace Officers and |Assault with a | |
|Firefighters |deadly weapon or | |
| |instrument, other | |
| |than a firearm, or | |
| |by any means likely | |
| |to produce great | |
| |bodily injury: | |
| |prison 3/4/5. | |
| |(PC 245(c).) | |
|---------------------+---------------------+---------------------|
|Peace Officers and |Assault with a | |
|Firefighters |firearm: prison | |
| |4/6/8. (PC | |
| |245(d)(1).) | |
|---------------------+---------------------+---------------------|
|Peace Officers and |Assault with a | |
|Firefighters |semiautomatic | |
| |firearm: prison | |
| |5/7/9. | |
| |(PC 245(d)(2).) | |
|---------------------+---------------------+---------------------|
|Peace Officers and |Assault with an | |
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|Firefighters |assault weapon: | |
| |prison 6/9/12. | |
| |(PC 245(d)(3).) | |
|---------------------+---------------------+---------------------|
|Domestic violence | |Simple battery: |
|victim<6> | |fine up to $2000; |
| | |jail up to 1 year. |
| | |(PC 243(e).) |
|---------------------+---------------------+---------------------|
|Domestic violence | |Corporal injury |
|victim<7> | |resulting in a |
| | |traumatic condition: |
| | | jail up to 1 year, |
| | |fine up to $6000, or |
| | |prison 2/3/4, or |
| | |both fine and |
| | |imprisonment. (PC |
| | |273.5.) |
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---------------------------
<6> Specifically, the defendant's 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 has previously
had, a dating or engagement relationship.
<7> Specifically, the defendant's spouse, former spouse,
cohabitant, former cohabitant, or the mother or father of his or
her child.
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--------------------------------------------------------------------
| Victim | Assault: | Battery: |
| | Crime/Penalty | Crime/Penalty |
|------------------------+---------------------+---------------------|
|Elder or dependent | |Simple battery: |
|adult | |fine up to $2000; |
| | |jail up to 1 year. |
| | |(PC 243.25.) |
|------------------------+---------------------+---------------------|
|Parking control officer |Simple assault | |
| |against a parking | |
| |control officer: up | |
| |to 6 months in jail; | |
| |fine up to $2000, or | |
| |both. (PC | |
| |241(b).) | |
|------------------------+---------------------+---------------------|
|Specified safety and |Simple assault |(1) Simple battery |
|health personnel<8> |against specified |against specified |
| |safety and health |safety and health |
| |personnel (PC |personnel<9> (PC |
| |241(c).): up to 1 |243(b).): up to 1 |
| |year in jail; fine |year in jail; fine |
| |up to $2000, or |up to $2000, or |
| |both. |both. |
| | |(2) Injury |
| | |inflicted on these |
| | |persons: wobbler |
| | |(up to 1 year in |
| | |jail, or 16/2/3 |
---------------------------
<8> Specifically, a peace officer, firefighter, emergency
medical technician, mobile intensive care paramedic, lifeguard,
process server, traffic officer, code enforcement officer, or
animal control officer engaged in the performance of his or her
duties, or a physician or nurse engaged in rendering emergency
medical care outside a hospital, clinic, or other health care
facility.
<9> See ft. 8.
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| | |prison; fine up to |
| | |$2000, or both. |
| | |(PC 243(c)(1).) |
|------------------------+---------------------+---------------------|
|Peace officer engaged | |Simple battery: |
|in the performance of | |wobbler: up to 1 |
|his or her duties, on | |year in jail or |
|or off duty, including | |16/2/3 prison; fine |
|when officer is in a | |up to $10,000, or |
|police uniform and is | |both. (PC |
|performing duties while | |243(c)(1).) |
|also employed in a | | |
|private capacity as a | | |
|part-time or casual | | |
|private security guard | | |
|or patrolman | | |
|------------------------+---------------------+---------------------|
|Custodial officer<10> |Simple assault |Simple battery (PC |
| |against a custodial |243.1): prison |
| |officer: up to 1 |16/2/3. |
| |year in jail, or 18 | |
| |months, 2 or 3 years | |
| |in prison. (PC | |
| |241.1.) | |
|------------------------+---------------------+---------------------|
|Custodial officer |Assault with a | |
| |deadly weapon or | |
| |instrument or by any | |
| |means likely to | |
| |produce great bodily | |
| |injury: prison | |
| |3/4/5. | |
| |(PC 245.3.) | |
| | | |
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---------------------------
<10> Custodial officers as defined in Penal Code Section 831 or
831.1.
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| | | |
|------------------------+---------------------+---------------------|
| Victim | Assault: | Battery: |
| | Crime/Penalty | Crime/Penalty |
|------------------------+---------------------+---------------------|
|School district peace |Simple assault | |
|officer |against a peace | |
| |officer engaged in | |
| |the performance of | |
| |his or her | |
| |duties as a member | |
| |of a police | |
| |department of a | |
| |school district: up | |
| |to 1 year in jail or | |
| |18 months, 2 or 3 | |
| |years in prison. | |
| |(PC 241.1.) | |
| | | |
|------------------------+---------------------+---------------------|
|School employee |Simple assault |(1) Simple battery: |
| |against a school |jail up to 1 year, |
| |employee Up to 1 |fine up to $2,000, |
| |year in jail; fine |or both; |
| |up to $2000, or |(2) injury |
| |both. (PC 241.6.) |inflicted: wobbler: |
| | | jail up to a year |
| | |and/or fine up to |
| | |$2,000, or prison |
| | |16/2/3. (PC |
| | |243.6.) |
|------------------------+---------------------+---------------------|
|School employee |Assault with a | |
| |deadly weapon | |
| |or instrument, other | |
| |than a firearm, or | |
| |by any means likely | |
| |to produce great | |
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| |bodily injury: | |
| |wobbler: jail up to | |
| |a year or prison | |
| |3/4/5. (PC | |
| |245.5(a).) | |
|------------------------+---------------------+---------------------|
|School employee |Assault with a | |
| |firearm: jail not | |
| |less than 6 months, | |
| |or prison 4/6/8. | |
| |(PC 245.5(b).) | |
|------------------------+---------------------+---------------------|
|School employee |Assault with a stun | |
| |gun or taser: | |
| |wobbler: jail up to | |
| |a year or prison | |
| |2/3/4. (PC | |
| |245.5(c).) | |
|------------------------+---------------------+---------------------|
|Juror |Simple assault (PC |Simple battery: |
| |241.7): up to 1 year |wobbler: jail up to |
| |in jail; fine up to |a year, fine up to |
| |$2,000, or both. |$5,000, or both, or |
| | |prison 16/2/3. (PC |
| | | 243.7.) |
|------------------------+---------------------+---------------------|
|Member of the military |Simple assault: up |Simple battery: |
|because of their |to 1 year in jail; |jail up to 1 year, |
|service |fine up to $2000, or |fine up to $2000, or |
| |both. (PC 241.8.) |both. (PC |
| | |243.10(a).) |
| | | |
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| Victim | Assault: | Battery: |
| | Crime/Penalty | Crime/Penalty |
|---------------------+---------------------+---------------------|
|Operator, driver, or |Assault with a |(1) Simple battery: |
|passenger on a bus, |deadly weapon or | fine up to $10,000, |
|taxicab, streetcar, |instrument or by any |jail up to 1 year, |
|cable car, trackless |means of force |or both. |
|trolley, or other |likely to produce |(2) Injury |
|motor vehicle, |great bodily injury: |inflicted: fine up |
|including a vehicle | prison 3/4/5. (PC |to $10,000, and |
|operated on | 245.2.) |wobbler: up to 1 |
|stationary rails or | |year in jail or |
|on a track or rail | |prison 16/2/3. (PC |
|suspended in the | |243.3.) |
|air, used for the | | |
|transportation of | | |
|persons for hire, or | | |
|against a schoolbus | | |
|driver, or against | | |
|the person of a | | |
|station agent or | | |
|ticket agent for the | | |
|entity providing the | | |
|transportation. | | |
|---------------------+---------------------+---------------------|
|Sports official | |Simple battery: |
|immediately prior | |jail up to 1 year, |
|to, during, or | |fine up to $2,000, |
|immediately | |or both. (PC |
|following an | |243.8.) |
|interscholastic, | | |
|intercollegiate, or | | |
|any other organized | | |
|amateur or | | |
|professional | | |
|athletic contest. | | |
|---------------------+---------------------+---------------------|
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|Peace officer or | |Battery by gassing: |
|local detention | |jail or prison |
|facility employee. | |2/3/4. (PC |
| | |243.9.) |
|---------------------+---------------------+---------------------|
|Caltrans employee or |Fine up to $2000, up |Fine up to $10,000, |
|contractor |to 1 year in jail, |jail up to 1 year, |
| |or both fine and |or both fine and |
| |imprisonment. |jail. |
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3. New Penalties Created by This Bill for Assault on a Local
Government Highway Worker
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| Victim | Assault: | Battery: |
| | Crime/Penalty | Crime/Penalty |
|---------------------+---------------------+---------------------|
|Local government |Fine up to $2000, up |Fine up to $10,000, |
|highway worker |to 1 year in jail, |jail up to 1 year, |
| |or both fine and |or both fine and |
| |imprisonment. |jail. |
| | | |
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4. This Bill Covers Caltrans Contractors, but Not Entities that
Contract with Local Governments: Equal Protection Issue
Existing law includes enhanced misdemeanor penalties for a
defendant who is convicted of an assault or battery on a
Caltrans highway worker or a Caltrans contractor. This bill
would expand existing law to provide that the enhanced penalties
apply where the victim of the assault or battery was a local
government highway worker. The bill does not include persons
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employed by a contractor that performs highway work under
contract with a local government entity.
Arguably, equal protection issues arise where a defendant who
assaulted a Caltrans employee, Caltrans contractor or local
government employee receives a higher penalty than a defendant
who assaulted a highway worker employed by a local government
contractor. That is, a statute violates the equal protection
clause of the United States Constitution where it treats
similarly situated persons differently. It can be argued that a
defendant convicted of a battery or assault on a highway worker
who is employed by a local government contractor is similarly
situated to a defendant convicted of assault or battery on a
person employed by a local government entity, Caltrans employee
or Caltrans contractor.
DOES THIS BILL PRESENT AN EQUAL PROTECTION ISSUE IN THAT
DEFENDANTS CONVICTED OF AN ASSAULT OR BATTERY AGAINST A HIGHWAY
WORKER DIRECTLY EMPLOYED BY A LOCAL GOVERNMENT ENTITY ARE
SUBJECT TO A HIGHER PENALTY THAN DEFENDANTS CONVICTED OF AN
ASSAULT OR BATTERY AGAINST A HIGHWAY WORKER EMPLOYED BY A LOCAL
GOVERNMENT CONTRACTOR?
5. The Bill Refers to Caltrans Contractors, not Employees of
Caltrans Contractors
As noted above, existing law includes enhanced misdemeanor
penalties for a defendant who commits an assault or a battery on
a Caltrans contractor. The Oxford American Dictionary defines a
contractor as a "person or company that undertakes a contract to
provide materials or labor to perform a service or do a job."
Thus, a Caltrans contractor would be the person or entity that
actually made the contract to provide material or labor to
perform highway work. The contractor would not likely perform
the actual labor at a job site, except to supervise the
construction or repair. Read narrowly, the bill would only
cover assaults against the person or company that made the
contract with Caltrans. Perhaps the bill should be amended to
provide that a person who commits an assault or battery against
a highway worker employed by, or working under, a Caltrans
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PageV
contractor is subject to enhanced penalties.
SHOULD THE BILL PROVIDE THAT ENHANCED PENALTIES MAY BE IMPOSED
ON A DEFENDANT CONVICTED OF ASSAULT OR BATTERY ON A PERSON
EMPLOYED BY A CALTRANS CONTRACTOR, RATHER THAN WHERE THE BATTERY
OR ASSAULT WAS COMMITTED ON A CALTRANS CONTRACTOR?
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