BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1360 (John P?rez) 0
As Amended June 2, 2009
Hearing date: July 2, 2009
Penal Code
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FELONY DOMESTIC VIOLENCE
HISTORY
Source: Los Angeles County District Attorney's Office
Prior Legislation: AB 45 (Murray) - Ch. 847, Stats. 1997
Support: Los Angeles County Sheriff's Department; Planned
Parenthood Affiliates of California; California
Communities United Institute; California Partnership to
End Domestic Violence; California Commission on the
Status of Women; California District Attorneys
Association; Rainbow Services, Ltd.; Peace Over
Violence; AFSCME, AFL-CIO
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 77 - Noes 1
KEY ISSUE
SHOULD THE DEFINITION OF FELONY DOMESTIC VIOLENCE BE EXPANDED TO
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INCLUDE THE OFFENDER'S FIANCE OR SOMEONE WITH WHOM THE OFFENDER HAS,
OR PREVIOUSLY HAD, A DATING OR ENGAGEMENT RELATIONSHIP, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to expand the definition of felony
domestic violence to include the offender's fiance" or "someone
with whom the offender has, or previously had, a dating or
engagement relationship," as specified.
Current law provides that it is a felony<1> for any person to
willfully inflict corporal injury resulting in a traumatic
condition<2> upon any of the following persons:
spouse;
former spouse;
cohabitant;
former cohabitant; or
the mother or father of the offender's child. (Penal
Code 273.5.)
This bill would expand this section to include the offender's
"fiance or fiance," or "someone with whom the offender has, or
previously had, a dating or engagement relationship."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
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<1> The punishment specified in this section is imprisonment in
the state prison for 2, 3, or 4 years, or in a county jail for
not more than one year, or by a fine of up to $6000 or by both
that fine and imprisonment.
<2> As used in this section, "traumatic condition" means 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 273.5 (c).
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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
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.
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<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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. . . 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.
. . .
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.
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<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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This bill appears to aggravate the prison overcrowding crisis
outlined above.
COMMENTS
1. Stated Need for This Bill
The author states:
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. 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).
Because of this flaw, a defendant who commits a
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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 batterer's treatment program.
State law also requires that domestic violence
crimes resulting in death be annually tracked 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 PC
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.
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2. What This Bill Would Do
This bill would expand the scope of felony domestic violence to
include corporal injury against the following persons:
the offender's fiance or fiancee<5>;
someone with whom the offender has a dating or
engagement relationship; and
someone with whom the offender previously had a dating
or engagement relationship.
3. Background
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, fiance, or fiancee, 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.
Under current law, so-called "simple" battery is punishable by a
$2000 fine, up to six months in jail, or both. When "simple"
battery is domestic violence, however,<6> the potential jail
time is double - a period of not more than one year. In
addition, if probation is granted in these cases, or the
execution or imposition of the sentence is suspended, the
defendant must participate in a batterer's treatment program, as
specified. (Penal Code 243 (e).)
Even the slightest unprivileged touching can constitute a
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<5> The bill says "fiance and fiance." This appears to be an
error the author may wish to have counsel correct.
<6> More specifically, a battery 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, as
enumerated in Penal Code Section 243(e).
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battery:
It has long been established, both in tort and
criminal law, that "the least touching" may
constitute battery. In other words, force against
the person is enough; it need not be violent or
severe, it need not cause bodily harm or even
pain, and it need not leave any mark.<7>
The greater sentence for battery in a domestic violence setting
was created in 1989 by AB 238 (Roybal-Allard) - Ch. 191, Stats.
1989. According to the Senate Judiciary Committee analysis of
AB 238, the author's intent was to address the need to
"differentiate battery between individuals who are, or were,
involved in a special relationship such as couples who have
lived together but recently separated, dating couples, formerly
married and formerly dating couples and gay couples, as more
severe than 'common' battery." (Senate Judiciary Committee
Analysis of AB 238, as amended May 30, 1989.)
Felony domestic violence first was enacted in California in
1945. As explained in People v. Gutierrez (1985) 171 Cal.App.3d
944:
(Former Penal Code Section 273d) prohibited a
husband from inflicting upon his wife corporal
injury resulting in a traumatic condition and
prohibited any person from doing the same to any
child. In 1977 the Legislature separated the
subject matters of child abuse and wife beating
found in the original Section 273d. The child
abuse prohibition was retained in exact language
with the same section number. The wifebeating
provisions were renumbered as Section 273.5 and
underwent a transformation which prohibited either
spouse from inflicting corporal punishment
resulting in a traumatic condition on the other.
In addition, cohabiting partners of the opposite
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<7> 1 Witkin, California Criminal Law Third Edition, Crimes
Against the Person, 12, pp. 645-646 (emphasis in original).
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sex were added as a category of protected
individuals.<8>
As explained by the court in Gutierrez, "[i]t is injury
resulting in a traumatic condition that differentiates this
crime from lesser offenses. Both simple assault and misdemeanor
battery are included in a prosecution of Section 273.5."<9>
Even "minor" physical injury falls within the scope of Section
273.5:
Section 273.5 is violated when the defendant
inflicts even "minor" injury. Unlike other
felonies, e.g., aggravated battery which require
serious or great bodily injury, "the Legislature
has clothed persons of the opposite sex in
intimate relationships with greater protection by
requiring less harm to be inflicted before the
offense is committed."<10>
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<8> People v. Gutierrez, supra, 171 Cal.App.3d at 948.
<9> Id.
<10> People v. Wilkins (1993) 14 Cal.App.4th 761, 771
(citations omitted).