BILL ANALYSIS
AB 1360
Page 1
Date of Hearing: April 21, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1360 (Perez) - As Introduced: February 27, 2009
SUMMARY : Expands the categories of relationships that
constitute felony domestic violence resulting in a traumatic
condition to include former fianc?s/fianc?es, as well as current
and former dating relationships.
EXISTING LAW :
1)Provides any person who willfully inflicts upon a person who
is his or her spouse, former spouse, cohabitant, former
cohabitant, or the mother or father of his or her child,
corporal injury resulting in a traumatic condition, is guilty
of a felony, and upon conviction thereof shall be punished by
imprisonment in the state prison for two, three, or four
years, or in a county jail for not more than one year, or by a
fine of up to $6,000 or by both that fine and imprisonment.
[Penal Code Section 273.5(a).]
2)States that holding oneself out to be the husband or wife of
the person with whom one is cohabiting is not necessary to
constitute cohabitation as the term is used in this section.
[Penal Code Section 273.5(b).]
3)Defines a "traumatic condition" a condition of the body, such
as a wound or external or internal injury, whether of a minor
or serious nature, caused by a physical force. [Penal Code
Section 273.5(c).]
4)Provides that for the purpose of this section, a person shall
be considered the father or mother of another person's child
if the alleged male parent is presumed the natural father
under specified provisions of the California Family Code.
[Penal Code Section 273.5(d).]
5)Provides that any person convicted of violating this section
for acts occurring within seven years of a specified related
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previous conviction shall be punished by imprisonment in a
county jail for not more than one year, or by imprisonment in
the state prison for two, four, or five years, or by both
imprisonment and a fine of up to $10,000. [Penal Code Section
273.5(e)(1).]
6)States that any person convicted of a violation of this
section for acts occurring within seven years of a previous
conviction of this section shall be punished by imprisonment
in the state prison for two, three, or four years, or in a
county jail for not more than one year, or by a fine of up to
$10,000, or by both that imprisonment and fine. [Penal Code
Section 273.5(e)(2).]
7)Specifies probation conditions related to domestic violence
counseling. The court shall impose one of the following
conditions of probation [Penal Code Section 273.5(g)]:
a) If the defendant has suffered one prior conviction
within the previous seven years for a violation of this
section, it shall be a condition thereof, in addition to
specified provisions, that he or she be imprisoned in a
county jail for not less than 15 days.
b) If the defendant has suffered two or more prior
convictions within the previous seven years for a violation
of any offense specified in this section, it shall be a
condition of probation, in addition to the specified
provisions, that he or she be imprisoned in a county jail
for not less than 60 days.
c) The court, upon a showing of good cause, may find that
the mandatory imprisonment required by this subdivision
shall not be imposed and shall state on the record its
reasons for finding good cause.
8)States that if probation is granted upon conviction of a
violation of felony domestic violence, the conditions of
probation may include, consistent with the terms of specified
probation imposed, in lieu of a fine, one or both of the
following requirements [Penal Code Section 273.5(h)]:
a) That the defendant make payments to a battered women's
shelter, up to a maximum of $5,000, pursuant to Penal Code
Section 1203.097.
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b) That the defendant reimburse the victim for reasonable
costs of counseling and other reasonable expenses that the
court finds are the direct result of the defendant's
offense.
c) For any order to pay a fine, make payments to a battered
women's shelter, or pay restitution as a condition of
probation under this subdivision, the court shall make a
determination of the defendant's ability to pay. In no
event shall any order to make payments to a battered
women's shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married
person is caused in whole or in part by the criminal acts
of his or her spouse in violation of this section, the
community property may not be used to discharge the
liability of the offending spouse for restitution to the
injured spouse, required by specified Penal Code
provisions, or to a shelter for costs with regard to the
injured spouse and dependents, required by this section,
until all separate property of the offending spouse is
exhausted.
9)States that upon conviction of this section, the sentencing
court shall also consider issuing an order restraining the
defendant from any contact with the victim, which may be valid
for up to 10 years, as determined by the court. It is the
intent of the Legislature that the length of any restraining
order be based upon the seriousness of the facts before the
court, the probability of future violations, and the safety of
the victim and his or her immediate family. This protective
order may be issued by the court whether the defendant is
sentenced to state prison, county jail, or if imposition of
sentence is suspended and the defendant is placed on
probation. [Penal Code Section 273.5(i).]
10)States when a battery is committed against a 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, the
battery is punishable by a fine not exceeding two $2,000, or
by imprisonment in a county jail for a period of not more than
one year, or by both that fine and imprisonment. If probation
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is granted, or the execution or imposition of the sentence is
suspended, it shall be a condition thereof that the defendant
participate in, for no less than one year, and successfully
complete, a batterer's treatment program, as defined in Penal
Code Section 1203.097, or if none is available, another
appropriate counseling program designated by the court.
However, this provision shall not be construed as requiring a
city, a county, or a city and county to provide a new program
or higher level of service. [Penal Code Section 243(e)(1).]
11)States that upon conviction of a violation of this
subdivision, if probation is granted, the conditions of
probation may include, in lieu of a fine, one or both of the
following requirements [Penal Code Section 243(e)(2)]:
a) That the defendant make payments to a battered women's
shelter, up to a maximum of $5,000.
b) That the defendant reimburse the victim for reasonable
costs of counseling and other reasonable expenses that the
court finds are the direct result of the defendant's
offense.
c) For any order to pay a fine, make payments to a battered
women's shelter, or pay restitution as a condition of
probation under this subdivision, the court shall make a
determination of the defendant's ability to pay. In no
event shall any order to make payments to a battered
women's shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married
person is caused in whole or in part by the criminal acts
of his or her spouse in violation of this section, the
community property may not be used to discharge the
liability of the offending spouse for restitution to the
injured spouse, required by Penal Code Section 1203.04, as
operative on or before August 2, 1995, or Penal Code
Section 1202.4, or to a shelter for costs with regard to
the injured spouse and dependents, required by this
section, until all separate property of the offending
spouse is exhausted.
d) Upon conviction of a violation of this subdivision, if
probation is granted or the execution or imposition of the
sentence is suspended and the person has been previously
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convicted of a domestic violence violation, the person
shall be imprisoned for not less than 48 hours in addition
to specified conditions. However, the court, upon a
showing of good cause, may elect not to impose the
mandatory minimum imprisonment as required by this
subdivision and may, under these circumstances, grant
probation or order the suspension of the execution or
imposition of the sentence.
e) The Legislature finds and declares that these specified
crimes merit special consideration when imposing a sentence
so as to display society's condemnation for these crimes of
violence upon victims with whom a close relationship has
been formed.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1360 seeks
to eliminate an inconsistency in domestic violence laws by
amending Penal Code Section 273.5 to expand the scope of
felony domestic violence to include relationships found in
other domestic violence laws.
"Specifically, this bill adds to the list of persons who
can be charged with felony domestic violence a defendant
who is a fianc? or fianc?e, or a person with whom he or
she currently has, or previously had, a dating or
engagement relationship.
"The prevalence of domestic violence has been an
increasingly important focus of the Legislature and law
enforcement as California has witnessed rates of domestic
violence increase. In order to adequately respond to
cases of domestic violence, state laws must be consistent
with respect to who qualifies for this crime.
"The exclusion of these relationships makes the felony
domestic violence statute inconsistent with other
domestic violence laws with respect to who may qualify
for that crime. Under current law, the list of
individuals covered by California's misdemeanor domestic
violence law [Penal Code Section 243(e)(1)] is
significantly broader than the individuals covered by our
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felony domestic violence law (Penal Code Section 273.5).
"Because of this flaw, a defendant who commits a felony
battery on his or her fianc? or fianc?e, or a person with whom
the defendant currently has, or has previously had, a dating
or engagement relationship are not subject to the same
punishments and treatment requirements that other domestic
abusers are subject to upon conviction. For example, if
probation is granted, the conditions of probation may include:
(a) That the defendant make payments to a battered women's
shelter, up to a maximum of $5,000, pursuant to Section
1203.097, and/or (b) That the defendant reimburse the victim
for reasonable costs of counseling and other reasonable
expenses that the court finds are the direct result of the
defendant's offense; enhanced penalties for multiple
convictions within a seven-year period; requirement that an
individual participate in a one-year batterers treatment
program.
"State law also requires that domestic violence crimes track
annual deaths when the deceased was a current or former
spouse, current or former fianc? or fianc?e, or current or
former dating partner (Penal Code Section 11163.6). This
discrepancy in the felony domestic violence statute impacts
the reporting of domestic violence cases. By not including
the same relationships in the Penal Code Section 273.5 that
are used for annual reporting, the state relies on inaccurate
domestic violence statistics.
"The inclusion of fianc?s or fianc?es, and current or
former dating and engagement partners in Penal Code
Section 273.5 will make the felony statute consistent
with all other domestic violence laws. It will enable
all offenders to be charged with the appropriate crimes
and sentenced to the appropriate punishments. And it
will allow for more accurate statistical reporting of
domestic violence occurrences."
2)Background : According to the background submitted by the
author, "Under existing law, any person who willfully inflicts
corporal injury resulting in a traumatic condition upon a
person who is his or her spouse, former spouse, cohabitant,
former cohabitant, or the mother or father of his or her
child, is guilty of a felony domestic violence punishable by
up to four years in state prison. [Penal Code Section
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273.5(a).]
"California's misdemeanor domestic violence includes the same
list of relationships, but also includes a fianc? or fianc?e,
and persons with whom the defendant has, or previously had, a
dating or engagement relationship.
"The inconsistency with respect to which relationship
qualifies for domestic violence creates a serious problem.
Because of this flaw, a defendant who commits a felony battery
on his or her fianc? or fianc?e, or a person with whom the
defendant currently has, or has previously had, a dating or
engagement relationship are not subject to the same
punishments and treatment requirements that other domestic
abusers are subject to upon conviction. (For example, if
probation is granted, the conditions of probation may include:
(a) that the defendant make payments to a battered women's
shelter, up to a maximum of $5,000, pursuant to Section
1203.097 and/or (b) that the defendant reimburse the victim
for reasonable costs of counseling and other reasonable
expenses that the court finds are the direct result of the
defendant's offense; enhanced penalties for multiple
convictions within a seven-year period; requirement that an
individual participate in a one-year batterers treatment
program."
3)Felony Battery vs. Domestic Violence : California has created
an elaborate scheme for dealing with the problem of domestic
violence. Individuals who are arrested, charged, or convicted
of domestic violence-related offenses have a variety of
conditions mandated and services available which are not in
place for simple assault and battery offenses. Individuals
arrested and charged with domestic violence offenses may be
required to appear in court at times when battery defendants
are not and face stiffer rules related to protective orders.
Probation conditions include an extensive counseling program
for the purpose of deprogramming violent conduct as it relates
to domestic scenarios. Additionally, criminal penalties for
recidivist conduct are more severe. Finally, additional
counseling and victim advocacy services are available for
victims of domestic violence.
4)Inconsistent Categorization of Victims in Domestic Violence
Cases and Domestic Battery Cases : Current law treats two
categories of offenders with differing provisions.
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Misdemeanor domestic battery includes a 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
Felony domestic violence includes a spouse, former spouse,
cohabitant, former cohabitant, or the mother or father of his
or her child.
Proponents argue the differences in these two lists create a
discrepancy in current law with respect to the protection of
victims. Other relationship categories included in the
misdemeanor statute are similarly excluded from the felony
provisions. This bill, proponents argue, would correct this
inconsistency by creating an increased repeat offense penalty
under the broader misdemeanor battery statute.
Legislation has been previously introduced in prior sessions
to expand the category of persons to whom the felony domestic
violence statute would apply. In 1998, AB 45 (Murray), of the
1997-98 Legislative Session, would have expanded the statute
to include non-cohabiting former spouses, a fianc?, fianc?e,
or a person with whom the defendant currently has, or has
previously had, a dating relationship. This provision was
amended out of AB 45 before its passage, although this
Committee passed AB 45 to expand the felony domestic violence
statute to include former spouse and person with whom the
defendant had cohabited. During the 1995-96 Legislative
Session, AB 720 (Speier), which died in the Assembly, proposed
a similar expansion.
5)Potential for Prison Overcrowding Due to Recidivist Provisions
of Domestic Violence Offenses : Felony assault under Penal
Code Section 245 and felony domestic violence both carry
punishments of up to four years in prison. However, felony
domestic violence have recidivism provisions which increase
punishments for up to five years in state prison if the
defendant has a one of several specified prior offenses. The
prospective prison overcrowding in this scenario is not as
significant as in a simple enhancement of sentences. In this
case, overcrowded is only implicated when a defendant has a
one of the specified prior offenses at the time he or she is
convicted of the new felony domestic violence offense.
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When the offense is currently punishable by a substantial
prison term, any proposed increase in that prison term causes
concern for additional prison overcrowding. As California's
prison crisis worsens, close attention should be paid to
legislation increasing 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, 30 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
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a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentives 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).]
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 state "[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.
6)Argument in Support : According to the Los Angeles District
Attorney's Office , "The Los Angeles County District Attorney's
Office is pleased to sponsor Assembly Bill 1360 with the Los
Angeles County Sheriff's Department.
"AB 1360 would expand the definition of felony domestic violence
to include current and former fianc?s or fianc?es and persons
currently or formerly in a dating or engagement relationship
as individuals who may qualify to be charged with this crime.
"Under existing law, any person who willfully inflicts corporal
injury resulting in a traumatic condition upon a person who is
his or her spouse, former spouse, cohabitant, former
cohabitant, or the mother or father of his or her child, is
guilty of a felony domestic violence punishable by up to 4
years in state prison. (Penal Code Section 273.5(a)).
"California's misdemeanor domestic violence statute provides
that a battery committed against a spouse, a person with whom
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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, the
battery is punishable by up to a year in a county jail.
[Penal Code Section 243(e)(1).]
"Under current law the list of individuals covered by
California's misdemeanor domestic violence law [Penal Code
Section 243(e)(1)] is significantly broader than the
individuals covered by our felony domestic violence law (Penal
Code Section 273.5).
"Individuals who are a 'fianc?, or fianc?e, or a person with
whom the defendant currently has, or has previously had, a
dating or engagement relationship' are covered by our
misdemeanor statute but not the felony statute.
"AB 1360 would correct this problem by expanding the scope of
the felony statute to cover the same list of victims as the
misdemeanor statute.
"Because of this flaw, a defendant who commits a felony battery
on his or her fianc?, or fianc?e, or a person with whom the
defendant currently has, or has previously had, a dating or
engagement relationship are not subject to the same
punishments and treatment requirements that other domestic
abusers are subject to upon conviction. (For example, if
probation is granted, the conditions of probation may
include:(1) That the defendant make payments to a battered
women's shelter, up to a maximum of five thousand dollars
($5,000), pursuant to Section 1203.097 and/or (2) That the
defendant reimburse the victim for reasonable costs of
counseling and other reasonable expenses that the court finds
are the direct result of the defendant's offense; Enhanced
penalties for multiple convictions within a 7 year period;
requirement that an individual participate in a one-year
batterers treatment program)."
7)Prior Legislation : AB 45 (Murray), 1997-1998 Legislative
Session, would have allowed judges setting bail to set an
amount necessary to protect the victim and victim's family
from further abuse, and requires interested parties shall
receive a copy of domestic violence restraining orders. At
the time it was heard in this Committee, AB 45 contained the
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provisions of this bill. The provisions adding fianc?s and
fianc?es, as well as dating relationships, were removed in the
Senate.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Sheriff's Department (Co-Sponsor)
California Commission on the Status of Women
California Communities United Institute
California District Attorneys Association
California Partnership to End Domestic Violence
Planned Parenthood Affiliates of California
Opposition
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744