BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1280 (Villines) 0
As Amended June 25, 2009
Hearing date: June 29, 2010
Penal Code
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CHILD ABUSE BY FORCE LIKELY TO PRODUCE GREAT BODILY INJURY
HISTORY
Source: California District Attorneys Association
Prior Legislation: AB 731 (Villines) - 2009, held in Assembly
Appropriations
AB 1987 (Villines) - 2008, held in this Committee
AB 1X 27 (Speier) - Ch. 47, Stats. 2004
AB 2258 (Kuykendall) - Ch. 460, Stats. 2006
Support: Child Abuse Prevention Center; Crime Victims United
of California
Opposition:California Attorneys for Criminal Justice; Taxpayers
for Improving Public Safety
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
EXISTING LAW PROVIDES THAT WHERE A PERSON WHO HAS CARE AND
CUSTODY OF A CHILD UNDER THE AGE OF EIGHT ASSAULTS THE CHILD BY
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MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY AND THE
ASSAULT RESULTS IN THE DEATH OF THE CHILD, THE PERSON IS GUILTY
OF A FELONY, PUNISHABLE BY IMPRISONMENT FOR 25-YEARS-TO-LIFE.
(CONTINUED)
SHOULD THIS LAW BE AMENDED TO ALSO PROVIDE THAT WHERE THE ASSAULT OF
THE CHILD RESULTS IN COMA DUE TO BRAIN INJURY, OR RESULTS IN
PERMANENT PARALYSIS, THE PERSON SHALL BE PUNISHED BY IMPRISONMENT
FOR A TERM OF 15-YEARS-TO-LIFE?
PURPOSE
The purpose of this bill is to provide that where a person with
care and custody of a child assaults the child through force
likely to produce great bodily injury and the child becomes
comatose due to brain injury or suffers permanent paralysis, as
defined, the person shall be punished by an indeterminate prison
term of 15-years-to-life.
Existing law states that any person having care and custody of a
child under the age of eight, who 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. (Pen. Code
273ab.)
Existing law 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 her health may be endangered shall be imprisoned in a county
jail not exceeding one year or in the state prison for 2, 4 or 6
years. (Pen. Code 273a, subd. (a).)
Existing law articulates that any person who under circumstances
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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, punishable by up to six months in the county jail.
(Pen. Code 273a, subd. (b).)
Existing law 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 2, 4, or 6 years, or in the
county jail not exceeding one year; by a fine up to $6000; or by
both that imprisonment and fine. (Pen. Code 273, subd. (d).)
Existing law 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
great bodily injury or death, causes that child to suffer injury
resulting in death shall receive a four-year sentence
enhancement for each violation. (Pen. Code 12022.95.)
Existing law states that any person who personally inflicts
great bodily injury on any person under the age of five in the
commission of a felony offense shall be punished by an
additional and consecutive term of 4, 5, or 6 years in the state
prison. (Pen. Code 12022.7, subd. (d).)
Existing law declares that any person who personally inflicts
great bodily injury 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 5 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.
(Pen. Code 12022.7, subd. (b).)
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This bill would create a felony, punishable by imprisonment for
15-years-to-life, for any person who, having the care and
custody of a child who is under eight years of age, inflicts
great bodily injury which causes the victim to become comatose
due to brain injury or to suffer paralysis of a permanent
nature.
This bill would define "paralysis" as a major or complete loss
of motor function resulting from injury to the nervous system or
to a muscular mechanism.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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.)
. . .
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
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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
crisis described above.
COMMENTS
1. Need for This Bill
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. Adam's perpetrator was charged with willful
cruelty and a separate great bodily injury allegation
for a child under the age of five; combined totaling a
maximum 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 plead guilty),
Adam's assailant was sentenced to 10 years in prison.
Of that sentence, he will only serve seven- and
one-half years.
Current law does not take into consideration the
consequences or the end result of an incident of child
----------------------
<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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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 any
person who abuses a child under the age of eight and
causes permanent injury or disability to the child.
The increased punishment will carry a 15-years-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 the death of a child, but more
than the punishment for the crime of felony child
abuse that results in nonpermanent injury.
2. The Existing Statute Authorizing a Prison Term of
25-Years-to-Life for Child Abuse by a Caretaker that Results
in Death have been Upheld
As noted above, Penal Code Section 273ab, which calls for a
punishment of 25-years-to-life where a caretaker of a child
under the age of eight assaulted the child by means of force
likely to produce great bodily injury and the child died.
California appellate courts have upheld the constitutionality of
Section 273ab, despite the fact that the crime has the same
penalty as first-degree murder. (People v. Basuta (2001) 94
Cal.App.4th 370; People v. Norman (2003) 109 Cal.App.4th 221.)
The California Supreme Court declined to review these decisions.
First-degree murder is willful and premeditated murder - an
intentional murder with malice. (Pen. Code 187-189.) The
severity of punishment for a crime in which the defendant did
not intend, or perhaps even anticipate, the outcome of the
child's death, has been the basis of claims that the law is
vague and denies equal protection. (People v. Basuta, supra, 94
Cal.App.4th 370, 398-399.) The policy basis for existing law
and this bill concerning grave harm inflicted on children by
caregivers is that a person who accepts the task of caring for a
child assumes a special responsibility because they occupy a
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position of trust. The protection of children is one of the
most important functions of the law. (Ibid; People v.
Albritton, supra, 67 Cal.App.4th 647, 660.)
3. Application of Existing Law May Turn on Chance Results, Rather
than the Conduct and Intent of the Defendant
Crimes are based on two major principles or components, the
actus reus and the mens rea. This means a criminal act and a
criminal state of mind. Under the existing provisions of Penal
Code Section 273ab, the act and state of mind of the defendant
are 1) an assault of a person under eight years of age by a
person having custody of the child; and 2) the force is likely
to create great bodily injury. In an assault case the
prosecutor must prove that the defendant intended to do an act
that would produce a violent injury, regardless of whether or
not something prevented the occurrence of the injury.
Arguably, a person who assaults a child by means of force likely
to produce great bodily injury under circumstances where the
child suffers paralysis or a brain injury resulting in coma is
no more, or at least not much less, culpable than a person who
does the same thing under circumstances where the child dies.
The difference between these two circumstances is that in many
cases the person whose assault produces paralysis or coma could
have used somewhat less force in the assault. Arguably, this
bill reflects that difference by punishing the person whose
assault does not result in death by a minimum indeterminate term
that is 10 years less than the persons whose crime resulted in
death.
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WHERE A PERSON ASSAULTS A CHILD BY FORCE LIKELY TO PRODUCE GREAT
BODILY INJURY, AND PARALYSIS OR COMA RESULTS, IS THAT PERSON
NEARLY AS CULPABLE AS A PERSON WHOSE ASSAULT RESULTS IN THE
DEATH OF THE CHILD?
4.Argument in Support
According to the California District Attorneys Association:
The punishment for the crime of felony child abuse,
under circumstances or conditions likely to produce
great bodily injury is two, four, or six years in
prison. (Pen. Code 273a, subd. (a).) The penalty
is the same even when the crime results in permanent
injury or disability to a child. In contrast, the
penalty for the crime of felony child abuse, under
the same circumstances, resulting in death is 25
years to life. The chasm between these punishments
ignores the reality that some child victims
experience permanent injury or disability but do not
perish.
This past summer a defendant received 10 years in
state prison for felony child abuse under Section
273a, subdivision (a), with a great bodily injury
enhancement under PC Section 12022.7, subdivision
(d). The defendant shook the then one-year-old child
so violently that the child (now four) suffers from
permanent brain damage and permanent partial
paralysis.
The current maximum punishment for felony child abuse
that results in permanent injury or disability is
outrageously inadequate considering the
unconscionable nature of the crime and the impact the
perpetrator's actions have on their victim's future
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
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assault on a child resulting in the greatest 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."
5. Argument in Opposition
According to the California Attorneys for Criminal Justice:
By creating a new crime, the proposed amendments
would punish these assaults on the same level as an
assault resulting in death, a second-degree murder.
We believe that this escalation in criminal liability
is unacceptable and inappropriate, given the
definition of the crime. "Force that to a reasonable
person would be likely to produce great bodily
injury" is a vague standard and makes no distinction
between different varieties of intent. Under this
standard, accidental infliction of disabling injury
could come within the statute, and be punished with a
life sentence as if the act were intentional. This
does not make sense.
Acknowledging the tragedy of physical abuse of
children, CACJ and its members do not support
creating new crimes and augmenting punishment where
the standard of proof does not justify the increase
in punishment. In addition, we believe that existing
laws already provide a framework to punish child
abuse according to the individual circumstances of
the crime. Nothing in this proposed legislation
indicates that making a new crime which dramatically
increases punishment would deter or prevent the
physical abuse of children in the future."
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