BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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8
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AB 984 ( Nava)
As Amended January 15, 2010
Hearing date: June 29, 2010
Penal Code
MK:dl
CRIMES
HISTORY
Source: Author
Prior Legislation: AB 1422 (Torlakson) - Ch. 477, Stats. 2000
SB 80 (Hayden) - 1999, bill amended to unrelated
issue in Assembly
Public Safety
SB 9 (Rainey) - 1999, not heard in Senate Public
Safety (author joined on
SB 80)
AB 37 (Torlakson) - 1999, failed
Assembly Appropriations
AB 45 (Lempert) - 1999, not heard in
Assembly Public Safety
Support: Crime Victims United of California; The Los Angeles
Police Protective League; San Bernardino County
Sheriff; Riverside Sheriffs' Association; Association
of Los Angeles Deputy Sheriffs; Peace Officers Research
Association of California; Councilman Mike A. Gipson,
City of Carson
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Opposition:California District Attorneys Association; California
Attorneys for Criminal Justice; American Civil
Liberties Union; California Public Defenders
Association; Taxpayers for Improving Public Safety
Assembly Floor Vote: Ayes 64 - Noes 4
KEY ISSUE
SHOULD THE CURRENT DUTY TO REPORT THE COMMISSION OF A MURDER, RAPE
OR SPECIFIED SEX OFFENSE OF A PERSON UNDER THE AGE OF 14 BE EXTENDED
TO A VICTIM OF ANY AGE?
PURPOSE
The purpose of this bill is to provide that the duty to report
the commission of a murder, rape or specified sex offense
applies for a victim of any age.
Existing law provides that "every person who, after a felony has
been committed, harbors, conceals or aids a principal in such a
felony, with the intent that said principal may avoid or escape
from arrest, trial, conviction or punishment, having knowledge
that said principal has committed such a felony or has been
charged with such a felony or convicted thereof is an accessory
to the felony and is guilty of a wobbler." (Penal Code 32
and 33.)
Existing law provides that it is a crime for any person having
knowledge of the actual commission of a crime to take money or
property of another, or any gratuity or reward, or any
engagement or promise thereof upon any agreement or
understanding to compound or conceal a crime or abstain from any
prosecution thereof or to withhold any evidence thereof. The
penalty for such crime is a wobbler if the crime being concealed
was punishable by death or life in prison or any other felony
and a six-month misdemeanor if the crime being concealed was a
misdemeanor. (Penal Code 153.)
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Existing law imposes specified requirements on a mandated
reporter, as defined, with respect to the observation and
reporting of physical abuse of an elder or dependent adult, with
failure to report punishable as a misdemeanor. (WIC 15630
and 15634.)
Existing law, the Elder Abuse and Dependent Adult Civil
Protection Act, provides for the reporting of actual or
suspected physical or other abuse, as defined, of an elder or
dependent adult by specified persons and entities, including
care custodians, and imposes various requirements on state and
local agencies in processing, investigating, and reporting on
these reports. (Welfare and Institutions Code 15600 et seq.)
Existing law provides that a health care practitioner, child
care provider, child protective agency employee, child
visitation monitor, firefighter, animal control or humane
society officer who reasonably suspects that a child has been
abused must report such suspected child abuse to a child
protective agency. (Penal Code 11166.)
Existing law provides that any person who reasonably believes
that he or she has observed the commission of a murder, rape or
lewd act on a child by force, where the victim is a child under
the age of 14 years shall notify a peace officer. Failure to
notify is a misdemeanor punishable by a fine of not more than
$1,500, up to 6 months in jail, or both fine and jail. The duty
to report does not apply to a person who is related to either
the victim or offender, a person who fails to report because of
a reasonable mistake of fact or a person who fails to report
based on a reasonable fear for his or her own reasonable fear
for his or her own safety or for the safety of his or her
family. (Penal Code 152.3.)
This bill provides that the duty to report a murder, rape or
lewd act upon a child by force shall apply when the victim is
any age.
This bill provides that the duty does not apply if the person is
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the domestic partner of either the victim or the defendant.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
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The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored,
underfunded, or postponed indefinitely. The
convergence of tough-on-crime policies and an
unwillingness to expend the necessary funds to support
the population growth has brought California's prisons
to the breaking point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does appear to aggravate the prison overcrowding
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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crisis described above
COMMENTS
1. Need for This Bill
According to the author:
On October 24th, 2009 a young woman, only 16 years old,
left her high school dance to get a ride home from her
father when she joined some young men and began drinking
with them. They soon began their assault. Several of
the men beat her, and began repeated raping her while
people looked on without taking any action.
Police think there were up to 10 attackers and anywhere
from 15 to 20 people stopping to watch. Authorities said
people took photos, laughed and some joined in as the
girl was repeatedly assaulted. People came and went and
no one called the police.
Under current law, had the victim of this rape been
under 14 years of age, observers would have been
committing a misdemeanor punishable by a fine of not
more than $1,5000, imprisonment for up to 6 months, or
both. The victim in this case was 16, which means that
the observers of her attack were not held accountable.
This bill removes the age threshold that requires an
observer to report the act of murder, rape or a crime
described in Penal Code 288(b)(1) against a person.
2. No General Legal Duty to Aid Others
Citing LaFave and Scott, a Dayton Law Journal article notes
that generally speaking:
One has no legal duty to aid another person in peril,
even when that aid can be rendered without danger or
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inconvenience to himself. He need not shout a warning
to a blind man headed for a precipice or to an
absent-minded one walking into a gunpowder room with a
lighted candle in hand. He need not pull a neighbor's
baby out of a pool of water...though the baby is
drowning? A moral duty to take affirmative actions is
not enough to impose a legal duty to do so.<2>
However, the law review article goes on to say that while LaFave
and Scott are technically correct "[c]riminal law is filled with
obligations ascribing legal duties to all of us based upon the
consensus of our elected officials as to what they believe is
morally appropriate." <3>Seven major areas where a duty to aid
are discussed: a duty to act based upon a relationship of the
parties; a duty to act based upon contract; a duty based upon a
voluntary assumption of care; a duty arising from the fact that
the person created the risk from which the need for protection
arose.; a duty arising from a special relationship that makes a
non-acting partner criminally responsible for the actor's
criminal action; a duty arising from the fact that one owns the
real property upon which the victim is injured, and a duty to
act, and the resulting criminal liability for failing to act,
based upon statute.<4>
The Dayton Law Review article asks the following:
If we have no legal duty based upon any familial,
contractual, consensual or propriety obligation, should
we have an obligation based upon a moral imperative to
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<2> Briggs, David C. "The Good Samaritan is Packing" An Overview
of the Broadened Duty to Aid Our Fellowman, With The Modern
Desire To Possess Concealed Weapons (Winter 1997) 22 Dayton L.
Rev. 225, 227 ( hereafter "The Good Samaritan is Packing")
citing Wayne R. LaFave &Austin W. Scott, Jr. Criminal Law 203
(2nd ed. 1986).
<3> " The Good Samaritan is Packing" supra, at 227.
<4> " The Good Samaritan is Packing" supra, at 227-229.
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come to the aid of another? <5>
A number of different countries and states have chosen to answer
the above question yes and imposed a duty to aid and provide
criminal penalties for failure to do so. These statutes are
divided into three types: duty to aid statutes that cover both
"acts of God" and acts of criminal agents; duty to report a
felony in progress and a victim in need; and duty to report only
specific types of criminal behavior. <6>
3. Existing Duty to Report Specified Offenses When Victim is
Under the Age of 14
In 2000 with AB 1422 (Torlakson), California created a duty to
report a murder, rape or a lewd act on a child by force when the
victim is under 14 years of age. The bill was in response to a
1997 incident in which seven year-old Sherrie Iverson was killed
in a Nevada casino by Jeremy Strohmeyer. Jeremy's best friend
was aware that Strohmeyer was assaulting Sherrie, but did not
contact authorities or try to intervene to save Sherrie or
lessen her injuries. Prior broader bills in response to the
same incident failed to pass the Legislature. Under existing
law, failure to report subjects a person to a misdemeanor
punishable by a fine up to $1,500 (plus penalty assessments)
and/or up to 6 months in jail. There are three exceptions to
the reporting requirement, however: when a person is related to
either the victim or offender; when a person fails to report
based on a reasonable mistake of fact; or, when a person fails
to report based on a reasonable fear for his or her own safety.
4. Changes to Duty to Report
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<5> " The Good Samaritan is Packing" supra, at 230.
<6> "The Good Samaritan is Packing" supra, at 230-231.
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As with the prior bills, including SB 840 (Yee) which this
Committee passed on April 12, 2010, this bill is in response to
an incident. As explained by the author, a girl was raped
outside a dance in Richmond, California by a number of people
while others stood around and watched. The victim was over 14
years of age so the current reporting law did not apply.
Witnesses have come forward and given the police information,
although they did not do so while the crimes were being
committed. According to newspaper articles, some people said
they did not initially report out of fear for their own safety
and of being labeled a "snitch."
This bill provides that the duty to report a murder, rape, or
lewd and lascivious conduct with a child under 14 applies when
the victim is any age. It also expands the exception to the
duty to report to include a person who is the domestic partner
of the victim or offender.
In support Crime Victims United states that "[v]ictims of
violent crime should be able to expect that regardless of one's
age, witnesses to their crimes will report the atrocities to law
enforcement and provide the relevant information to assist in
apprehending the vicitm's attacker(s)."
In opposition CACJ notes that the removing the age requirement
"radically changes" the existing provision by requiring the
general public to determine whether an act between two adults is
consensual.
5. Comparison between this bill and SB 840 (Yee)
As noted above, this Committee passed SB 840 (Yee) on April 12,
2010. SB 840 was heard in Assembly Public Safety on June 16 and
passed by a vote of 5-0.
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This bill differs from SB 840 in a number of ways.
SB 840 limits the reporting requirements to situations
where the victim is under the age of 18 while this bill
applies to every victim.
SB 840 expands the list of offenses that must be
reported to include: sodomy, all sections of lewd acts upon
a child; oral copulation and sexual penetration with a
foreign object. This bill does not expand the list of
offenses.
SB 840 makes the offense a wobblette, allowing the
prosecution to charge the offense as an infraction.
SB 840 creates and exemption providing that the victim,
himself or herself is not required to report the offense.
Both bills provide that the domestic partner of the
victim or perpetrator is not required to report.
Historically, the Committee has not passed out bills on the same
subject with conflicting provisions; to allow two conflicting
bills out would take from the Legislature the ability to decide
the appropriate policy to send the Governor. However,
historically the Committee has let identical bills pass if one
was a Senate Bill and one was an Assembly Bill. Should this
bill be amended to be the same as SB 840?
6. Opposition
The California District Attorneys Association opposes this bill,
stating:
We appreciate what we perceive to be the implicit goal
of this bill: to increase the frequency with which
terrible crimes are reported to law enforcement.
Unfortunately, we are concerned that this bill could
jeopardize prosecutions for the underlying crimes that
you are seeking to have reported. It is for this reason
that CDAA opposed the creation of Penal Code Section
152.3 by AB 1422 (Torlakson, Chapter 477, Statutes of
2000) and must now oppose its expansion.
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Our specific concern lies with the fact that, if a
prosecutor needs or wants to use a witness who has
failed to report the crime at issue, the prosecutor will
likely have to grant the witness immunity from the
offense of failing to notify a peace officer.
Conferring immunity can damage the People's case because
the immunity agreement will be disclosed to the defense
and could be used as the basis for impeachment despite
the fact that the jury might not know the nature of the
offense for which the witness has been granted immunity.
Additionally, the statute's broad exception from
reporting that applies to a witness who fears for his or
her safety or that of his or her family renders this
law, as currently written and as proposed to be amended
by this bill, essentially toothless. We fear that this
measure will not effectively encourage the reporting of
crimes, but could very likely hinder prosecutions of
horrific offenses by expanding the breadth of the
reporting requirement.
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