BILL NUMBER: AB 2246 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 6, 2010
INTRODUCED BY Assembly Member Blakeslee
FEBRUARY 18, 2010
An act to amend Section 273.5 of the Penal Code, relating
to domestic violence. An act to add Section 243.93 to
the Penal Code, relating to battery.
LEGISLATIVE COUNSEL'S DIGEST
AB 2246, as amended, Blakeslee. Domestic violence.
Battery: gassing.
Existing law establishes the State Department of Mental Health and
provides for the administration of state hospitals and provides for
the involuntary confinement of certain individuals in those state
hospitals, including persons who have been found not guilty of a
charge by reason of insanity, who have been found incompetent to
stand trial by a judge, or have been determined, as a result of a
mental disorder, to be a danger to themselves or others.
Existing law establishes the State Department of Developmental
Services and sets forth its duties and responsibilities, including,
but not limited to, administration and oversight of the state
developmental centers and programs relating to persons with
developmental disabilities. Existing law provides for the judicial
commitment of certain persons, including a mentally retarded person
who is a danger to himself or herself or others, mentally disordered
sex offenders, juvenile wards in need of intensive treatment as a
result of a mental disorder, and certain sexually violent predators,
to the State Department of Developmental Services. A person may also
be admitted to a developmental center voluntarily who is
substantially disabled.
Existing law provides that every person confined in a local
detention facility, state prison, or under the jurisdiction of the
Division of Juvenile Facilities of the Department of Corrections and
Rehabilitation, who commits a battery upon the person of a peace
officer by "gassing," as defined, is guilty of aggravated battery.
This bill would provide that a person confined to a state hospital
or residing at a state-operated developmental center operated by the
State Department of Developmental Services who commits battery upon
the person of a peace officer or employee of a state hospital or
state development center, by gassing, is guilty of aggravated
battery, a felony punishable by 2, 3, or 4 years in the state prison.
The bill would also require the State Department of Mental Health
and the State Department of Developmental Services to submit reports
to the Legislature by January 1, 2015, regarding gassing incidents at
their respective institutions.
By creating a new crime, this bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Existing law requires that 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 is punished by 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 $6,000, or by both that fine and imprisonment.
This bill would make technical, nonsubstantive changes to that
provision.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 243.93 is added to the
Penal Code , to read:
243.93. (a) Every person confined in a state hospital or residing
in a state-operated developmental center operated by the State
Department of Developmental Services who commits battery by gassing
upon the person of any peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, or employee of
the state hospital or state-operated developmental center is guilty
of aggravated battery and shall be punished by imprisonment in a
county jail or by imprisonment in the state prison for two, three, or
four years.
(b) For purposes of this section, "gassing" means intentionally
placing or throwing, or causing to be placed or thrown, upon the
person of another, any human excrement or other bodily fluids or
bodily substances or any mixture containing human excrement or other
bodily fluids or bodily substances that results in actual contact
with the person's skin or membranes.
(c) As used in this section, "director" shall mean the director of
the state hospital if a violation of subdivision (a) occurs in a
state hospital, or to the clinical director of a state-operated
developmental center operated by the State Department of
Developmental Services if a violation of subdivision (a) occurs in a
developmental center.
(d) The director of the state hospital or the clinical director of
a developmental center, or any other person in charge of the state
hospital or developmental center, as the case may be, shall use every
available means to immediately investigate all reported or suspected
violations of subdivision (a), including, but not limited to, the
use of forensically acceptable means of preserving and testing the
suspected gassing substance to confirm the presence of human
excrement or other bodily fluids or bodily substances. If there is
probable cause to believe that the individual has violated
subdivision (a), the director may, when he or she deems it medically
necessary to protect the health of an officer or employee who may
have been subject to a violation of this section, order the
individual to receive an examination or test for hepatitis or
tuberculosis or both hepatitis and tuberculosis on either a voluntary
or involuntary basis immediately after the event, and periodically
thereafter as determined to be necessary by the director in order to
ensure that further hepatitis or tuberculosis transmission does not
occur. These decisions shall be consistent with an occupational
exposure as defined by the Centers for Disease Control and
Prevention. The results of any examination or test shall be provided
to the officer or employee who has been subject to a reported or
suspected violation of this section. Nothing in this subdivision
shall be construed to otherwise supersede the operation of Title 8
(commencing with Section 7500) of Part 3. Any person performing
tests, transmitting test results, or disclosing information pursuant
to this section shall be immune from civil liability for any action
taken in accordance with this section.
(e) The director or other person in charge of the state hospital
or developmental center shall refer all reports for which there is
probable cause to believe that the individual has violated
subdivision (a) to the local district attorney for prosecution.
(f) Nothing in this section shall preclude prosecution under both
this section and any other provision of law.
SEC. 2. (a) The State Department of Mental Health
and the State Department of Developmental Services shall report to
the Legislature, by January 1, 2015, their respective findings and
recommendations on gassing incidents at state hospitals and
developmental centers and the medical testing authorized by this
section. The report shall include, but not be limited to, all of the
following:
(1) The total number of gassing incidents at each state hospital
or developmental center up to the date of the report.
(2) The disposition of each gassing incident, including the
administrative penalties imposed, the number of incidents that are
prosecuted, and the results of those prosecutions, including any
penalties imposed.
(3) A profile of the individuals who commit the aggravated
batteries, including the number of individuals who have one or more
prior serious or violent felony convictions.
(4) Efforts that the department has taken to limit these
incidents, including staff training and the use of protective
clothing and goggles.
(5) The results and costs of the medical testing authorized by
this section.
(b) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted statute
that is enacted before January 1, 2016, deletes or extends that
date.
SEC. 3. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 273.5 of the Penal Code is
amended to read:
273.5. (a) Any person who willfully inflicts corporal injury
resulting in 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, 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 six thousand dollars
($6,000), or by both that fine and imprisonment.
(b) 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.
(c) 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.
(d) 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 Sections 7611 and 7612 of
the Family Code.
(e) (1) Any person convicted of violating this section for acts
occurring within seven years of a previous conviction under
subdivision (a), subdivision (d) of Section 243, or Section 243.4,
244, 244.5, or 245, 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 ten thousand dollars ($10,000).
(2) Any person convicted of a violation of this section for acts
occurring within seven years of a previous conviction under
subdivision (e) of Section 243 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 ten thousand
dollars ($10,000), or by both that imprisonment and fine.
(f) If probation is granted to any person convicted under
subdivision (a), the court shall impose probation consistent with the
provisions of Section 1203.097.
(g) If probation is granted, or the execution or imposition of a
sentence is suspended, for any defendant convicted under subdivision
(a) who has been convicted of any prior offense specified in
subdivision (e), the court shall impose one of the following
conditions of probation:
(1) If the defendant has suffered one prior conviction within the
previous seven years for a violation of any offense specified in
subdivision (e), it shall be a condition thereof, in addition to the
provisions contained in Section 1203.097, that he or she be
imprisoned in a county jail for not less than 15 days.
(2) If the defendant has suffered two or more prior convictions
within the previous seven years for a violation of any offense
specified in subdivision (e), it shall be a condition of probation,
in addition to the provisions contained in Section 1203.097, that he
or she be imprisoned in a county jail for not less than 60 days.
(3) 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.
(h) If probation is granted upon conviction of a violation of
subdivision (a), the conditions of probation may include, consistent
with the terms of probation imposed pursuant to Section 1203.097, in
lieu of a fine, one or both of the following requirements:
(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.
(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.
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 Section 1203.04, as operative on or
before August 2, 1995, or 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.
(i) Upon conviction under subdivision (a), 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.