BILL ANALYSIS
AB 731
Page 1
Date of Hearing: April 14, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 731 (Villines) - As Introduced: February 26, 2009
SUMMARY : Creates a felony, punishable by imprisonment in the
state prison for 15-years-to-life, for any person who, having
the care and custody of a child who is under eight years of age,
who assaults the child by means of force that to a reasonable
person would be likely to produce great bodily injury (GBI),
resulting in the child becoming comatose due to brain injury or
suffering paralysis of a permanent nature. As used in this
subdivision, "paralysis" is defined as a major or complete loss
of motor function resulting from injury to the nervous system or
to a muscular mechanism.
EXISTING LAW :
1)States that any person having care and custody of a child who
is under eight years of age, assaults the child by means of
force that to a reasonable person would be likely to produce
GBI, resulting in the child's death, is guilty of a felony
punishable by 25-years-to-life in the state prison. (Penal
Code Section 273ab.)
2)Provides that any person who under circumstances likely to
cause great bodily harm or death willfully causes any child to
suffer or inflicts unjustifiable pain or mental suffering on a
child, causes the health of a child to be injured, or causes a
child to be placed in a situation where his or health may be
endangered is shall be imprisoned in a county jail not
exceeding one year or in the state prison for two, four or six
years. [Penal Code Section 273a(a).]
3)Articulates that any person who under circumstances other than
those likely to cause great bodily harm or death willfully
causes any child to suffer or inflicts unjustifiable pain or
mental suffering on a child, causes the health of a child to
be injured, or causes a child to be placed in a situation
where his or her health may be endangered is a misdemeanor,
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punishable by up to six months in the county jail. [Penal
Code Section 273a(b).]
4)Declares any person who willfully inflicts upon any child any
cruel or inhuman corporal punishment or injury resulting in a
traumatic condition shall be punished by imprisonment in the
state prison for two, four, or six years, or in the county
jail not exceeding one year; by a fine up to $6,000; or by
both that imprisonment and fine. [Penal Code Section 273(d).]
5)Provides that any person convicted of child abuse, who under
circumstances likely to cause great bodily harm or death,
willfully inflicts injury resulting in death, or having care
and custody of a child, under circumstances likely to cause
GBI or death, causes that child to suffer injury resulting in
death shall receive a four-year sentence enhancement for each
violation. (Penal Code Section 12022.95.)
6)States that any person who personally inflicts GBI on any
person under the age of five in the commission of a felony
offense shall be punished by an additional and consecutive
four, five, or six years in the state prison. [Penal Code
Section 12022.7(d).]
7)Declares that any person who personally inflicts GBI on any
person other than an accomplice in the commission of a felony
or attempted felony which causes the victim to become comatose
due to brain injury or to suffer paralysis of a permanent
nature, shall be punished by an additional and consecutive
term of imprisonment in the state prison for five years. As
used in this subdivision, "paralysis" is defined as a major or
complete loss of motor function resulting from injury to the
nervous system or to a muscular mechanism. [Penal Code
Section 12022.7(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In November of
2004, a young resident of Fresno, Adam Carbajal, became a
victim of child abuse (shaken baby syndrome with severe head
trauma). Although Adam was initially given only a five percent
chance of survival, he lives today with permanent brain damage
and is paralyzed on his right side. Adam cannot walk or talk.
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"Adam's perpetrator was charged with willful cruelty and a
separate great bodily injury allegation for a child under 5;
combined totaling a maximum sentence of 12 years. After
skipping bail and being on the run for months, then harassing
Adam's family and insisting Adam fell on his own (only to
later plead guilty) Adam's assailant was sentenced to ten
years in prison. Of that sentence he will only serve seven and
a half years.
"Current law does not take into consideration the consequences
or the end result of an incident of child abuse when
determining the sentence of a crime. Even if Adam's injuries
resulted in a broken bone, the child abuser's punishment would
remain the same.
"This bill will raise the sentencing standards for anyone who
abuses a child under the age of 8 and causes permanent injury
or disability to the child. The increased punishment will
carry a 15 year to life sentence.
"A punishment of 15 years to life for this crime is appropriate;
it is less than the punishment for an assault that results in
death of a child, but more than the punishment for the crime
of felony child abuse that results in nonpermanent injury."
2)Background : According to information provided by the author,
"Exiting law does not take into consideration the consequences
or the end result of an incident of child abuse when
determining the sentence of a crime. Whether or not the
perpetrator breaks a child's arm or neck, the punishment is
the same. This bill remedies this deficiency by raising the
sentencing standards for anyone who abuses a child and causes
permanent injury or disability to the child if the child is
under the age of 8. The increased punishment will carry a 15
year to life sentence.
"A punishment of 15 years to life for this crime is appropriate;
it is less than the punishment for an assault that results in
death of a child, but more than the punishment for the crime
of felony child abuse that results in nonpermanent injury"
3)Care or Custody Requirement : A violation of Penal Code
Section 273ab requires not only an assault on a child that
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results in death, but also that the defendant has care or
custody of the child. "The element of care and custody in
Penal Code Section 273ab creates a meaningful distinction
between those committing that offense and murderers." (People
v. Basuta supra, 94 Cal. App. 4th 370, 399.) Those who have
the care and custody of children not only have a particular
responsibility and occupy a position of trust; they are also
the persons most likely to kill children. (Id.) The term
"care or custody" does not imply a familial relationship but
only a willingness to assume duties correspondent to the role
of a caregiver. [People v. Cochran (1998, Cal App 4th Dist)
62 Cal App 4th 826.]
In People v. Albritton, supra, 67 Cal. App. 4th 647, 660, the
court stated that the purpose of Penal Code Section 273ab "is
to protect children at a young age who are particularly
vulnerable . . . ." Again, this "particular" vulnerability
comes from the fact that these juvenile victims were under the
care and or custody of a person entrusted to keep them from
harm. "Considering the purpose of the statute [(Penal Code
Section 273ab)]--to protect children at a young age who are
particularly vulnerable--there can be no dispute of the
gravity of the governmental interest involved. As our Supreme
Court put it, it is 'AN INTEREST OF UNPARALLELED SIGNIFICANCE:
the protection of the very lives of California's children,
upon whose 'healthy, well-rounded growth . . . into full
maturity as citizens' our 'democratic society rests, for its
continuance . . . . ' " [Walker v. Superior Court (1988) 47
Cal. 3d 112, 139.]
It is the Legislature's prerogative to define crimes and set
punishments for crimes. (People v. Albritton, supra, 67 Cal.
App. 4th 647, 660.) As such, Penal Section 273ab proscribes:
"Any person who, having the care or custody of a child who is
under eight years of age, assaults the child by means of force
that to a reasonable person would be likely to produce great
bodily injury, resulting in the child's death, shall be
punished by imprisonment in state prison for 25 years to life
. . . ." In comparison, involuntary manslaughter, a lesser
related offense, is punishable by imprisonment in the state
prison for two, three or four years. [Penal Code Section
193(b).] California's past legislation has reflected the
state's interest in giving extra protection toward children.
4)Concerns about Prison Overcrowding and the Threat of a
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Court-Ordered Population Cap : Given this bill proposes
additions to the list of "serious" and "violent felonies",
there will likely be an increase in the number of inmates
incarcerated in state prison for a longer term. This being
the case, it is important to raise the issue of prison
overcrowding. The California Policy Research Center (CPRC)
recently issued a report on the status of California's
prisons. The report stated, "California has the largest
prison population of any state in the nation, with more than
171,000 inmates in 33 adult prisons, and the state's annual
correctional spending, including jails and probation, amounts
to $8.92 billion. Despite the high cost of corrections, fewer
California prisoners participate in relevant treatment
programs than comparable states, and its inmate-to-officer
ratio is considerably higher. While the nation's prisons
average one correctional officer to every 4.5 inmates, the
average California officer is responsible for 6.5 inmates.
Although officer salaries are higher than average, their ranks
are spread dangerously thin and there is a severe vacancy
rate." (Petersilia, "Understanding California Corrections",
California Policy Research Center, May 2006). California's
prison population will likely exceed 180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
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impact. And these laws stripped away incentive s for offenders
to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, "Solving California's
Corrections Crisis: Time is Running Out", pg. 1, 2 (2007).]
According to the California Department of Corrections and
Rehabilitation, there are approximately 8,000 inmates serving
a sentence for lewd and lascivious acts on a child.
Incarcerating 8,000 more inmates for a term of
25-years-to-life would cripple the corrections system.
On February 9, 2009, a United States district court three-judge
panel issued a tentative ruling mandating the State of
California to resolve chronic prison overcrowding. In the
tentative ruling, the judges stated "[t]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
conditions." With prisons housing twice the population they
were built to accommodate, the prospect of early release of
inmates appears imminent unless the Legislature relieves the
current prison population. Given the untenable legal
disparity this bill proposes and the strength of existing law,
does it make sense to further contribute to the state's
mounting overcrowding problem?
This bill appears to aggravate the prison and jail overcrowding
crisis by creating a new felony, punishable by imprisonment in
the state prison for 15-years-to-life, for a person to assault
a child who is under eight years of age by means of force that
to a reasonable person would be likely to produce GBI,
resulting in permanent injury or disability. As stated above,
assault likely to produce GBI [Penal Code Section 245(a)(1)]
is a lesser included offense of Penal Code Section 273ab. At
present, assault by means of force likely to produce GBI shall
be punished by imprisonment in the state prison for two,
three, or four years, or in a county jail no exceeding one
year; by a fine not exceeding $10,000; or by both the fine
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and imprisonment. [See Penal Code Section 241(a)(1).]
In addition thereto, if this bill deletes the requirement that
one must have care or custody of a child in order to be
convicted under Penal Code Section 273ab, a wider pool of
potential defendants will be created, thus resulting in longer
sentences than in previous years.
5)Argument in Support : According to the California District
Attorney Association (the sponsor of this bill), "Pursuant
Penal Code (PC) section 273a(a), the punishment for the crime
of child assault, under circumstances or conditions likely to
produce great bodily injury, is 2, 4, or 6 years in the state
prison. The penalty is the same even when the crime actually
results in the child becoming comatose or permanently
paralyzed. In contrast, the penalty for the crime of child
assault, under the same circumstances or conditions, resulting
in death, is 25 years to life. The wide chasm between these
two punishments ignores the reality that some child victims
experience brain injury or permanent paralysis but do not
parish.
"In 2007, a defendant in Fresno County was sentenced to ten
years in state prison for felony child assault under PC
section 273a(a), a sentence that included a great bodily
injury enhancement under PC section 12022.7(d). In this case,
the defendant shook the then one-year-old child so violently
that the now five-year-old child suffers from permanent brain
damage and partial paralysis. He will live the rest of his
life as a disabled person. The court only chose to reconsider
its initially indicated sentence of six years after the
victim's devastated grandparents started a media campaign
expressing their anger at the leniency of the statute
governing the punishment for the crime of felony child abuse
resulting in permanent injury or disability to a child.
"The current maximum punishment for child assault, under
circumstances or conditions likely to produce great bodily
injury that results in permanent paralysis or coma due to
brain injury is outrageously inadequate considering the
unconscionable nature of the crime and the unfathomable impact
the perpetrator's actions have on the victim's quality of
life. In order to respond to this abhorrent crime, California
needs a statute with a penalty that more justly reflects the
severity of an assault on a child resulting in the greatest
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degree of injury short of death. A punishment of 15 years to
life for this crime is appropriate; it is less than the
punishment for an assault that results in the death of a
child, but more than the punishment for the crime of felony
child abuse that results in nonpermanent injury."
6)Prior Legislation :
a) AB 1987 (Villines), of the 2007-08 Legislative Session,
is essentially the same as this bill. AB 1987 failed
passage in the Senate Committee on Public Safety.
b) AB 2258 (Kuykendall), Chapter 460, Statutes of 1996,
increased the penalty from 15-years-to-life to
25-years-to-life when a person, having the care or custody
of a child under eight years of age, assaults the child and
the assault results in the child's death.
c) AB 1X27 (Speier), Chapter 47, Statutes of 1994, provided
that any person who, having the care and custody of a child
who under eight years of age, assaults a child by means of
force which to a reasonable person would be likely to
produce great bodily injury, resulting in the child's
death, shall be punished by 15-years-to-life in the state
prison.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Crime Victims Action Alliance
Crime Victims United of California
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744