BILL ANALYSIS
AB 2246
Page 1
Date of Hearing: April 20, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2246 (Blakeslee) - As Amended: April 6, 2010
SUMMARY : Provides that a person confined to a state hospital
or residing at a state-operated developmental center operated by
the Department of Developmental Services (DDS) 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 two, three,
or four years in the state prison. Specifically, this bill :
1)States that every person confined in a state hospital or
residing in a state-operated developmental center operated by
the DDS who commits battery by gassing upon the person of any
peace officer, 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.
2)Defines "gassing" as 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.
3)Defines "director" as the director of the state hospital, or
the clinical director of a state-operated developmental center
operated by DDS.
4)Requires 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, including,
but not limited to, the use of forensically acceptable means
of preserving and testing the suspected gassing substance to
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confirm the presence of human excrement or other bodily fluids
or bodily substances. If there is probable cause to believe
that the individual has committed a battery by gassing, 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. 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.
5)Mandates the director or other person in charge of the state
hospital or developmental center to refer all reports for
which there is probable cause to believe that the individual
has committed a battery by gassing to the local district
attorney for prosecution.
6)Asks the Department of Mental Health (DMH) and DDS 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:
a) The total number of gassing incidents at each state
hospital or developmental center up to the date of the
report;
b) 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;
c) A profile of the individuals who commit the aggravated
batteries, including the number of individuals who have one
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or more prior serious or violent felony convictions;
d) Efforts that the department has taken to limit these
incidents, including staff training and the use of
protective clothing and goggles; and,
e) The results and costs of the medical testing authorized
by this section.
7)Effectuates this section 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.
EXISTING LAW :
1)States every person confined in any local detention facility
who commits a battery by gassing upon the person of any peace
officer or employee of the local detention facility 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. [Penal Code Section 243.9(a).]
2)Defines "gassing" as 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 result in actual contact with the
person's skin or membranes. [Penal Code Section 243.9(b).]
3)Allows a person in charge of the local detention facility to
use every available means to immediately investigate all
reported or suspected batteries by gassing, 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 inmate has committed battery by gassing, the chief
medical officer of the local detention facility, or his or her
designee, 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 inmate 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
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medical officer 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 Center 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. [Penal Code Section 243.9(c).]
4)Provides that a mentally disordered prisoner who is committed
to a mental health facility after a finding of not guilty by
reason of insanity (NGI) and escapes is guilty of an alternate
misdemeanor/felony, punishable by up to one year in the county
jail or one year and one day in state prison. (Penal Code
Sections 1026 and 1026.4.)
5)Mandates that criminal defendants who are found to be
incompetent to stand trial and escapes from a mental health
facility is guilty of an alternate misdemeanor/felony,
punishable by up to one year in the county jail or one year
and one day in state prison. (Penal Code Section 1370.5.)
6)Creates an alternate felony/misdemeanor for a Mentally
Disordered Sexual Offender (MDSO), who has been convicted of a
specified sexual offense, to escape from a mental health
facility or while being moved to or from the facility, and
requires notification of the escape to specified law
enforcement agencies. (Penal Code Section 4536.)
7)Necessitates, under the Lanterman-Petris-Short (LPS) Act, that
persons who, by reason of mental disorders, are "dangerous to
others or to themselves or who are gravely disabled" may be
involuntarily held for 72 hours, and then treated for 14
additional days, and 180 days following a judicial hearing.
[Welfare and Institutions Code (WIC) Section 5000 et seq.]
8)Provides that a prisoner found to be a mentally disordered
offender (MDO) can be required to receive mental treatment as
a condition of parole and may be civilly confined after his or
her parole expires. (WIC Section 7227 and Penal Code Sections
2960 et seq.)
9)Allows prisoners found to be sexually violent predators (SVPs)
to be civilly confined based on a judicial commitment. A
"SVP" is defined as a person who has been convicted of a
sexually violent offense, as specified, against two or more
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victims for whom he or she received a determinate sentence. A
SVP must have a diagnosable mental disorder that makes the
person a danger to the health and safety of others in that it
is likely that he or she will engage in sexually violent
criminal behavior. (WIC Sections 6600 to 6608.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In 1997,
Assemblyman Pacheco introduced AB 995 which defined the term
of gassing as intentionally placing or throwing, or causing to
be placed or thrown, upon the person of another, any mixture
of human excrement or other bodily fluids or substances. This
definition was used to describe incidents of gassing upon
correctional officers or employees of state prisons. AB 995
was chaptered into law September 30, 1997, with a sunset date
of January 1, 2000. AB 995 established that every inmate that
committed the act of gassing upon a correctional officer would
be guilty of aggravated battery which would result in a
sentence of 2, 3 or 4 years in state prison. This bill also
provided that the person who committed the aggravated battery
would be ordered to receive an examination for hepatitus and
turbuculosis and the results of those tests would be made
available to the officer or employee to whom the aggravated
battery occurred. AB 995 also required CDCR to submit a
report to the Legislature providing the findings and
recommendations regarding gassing incidents that occurred in
the state prison.
"Since the passage of AB 995, not only have correctional
officers in CDCR faced incidents of gassing, but follow-up
bills have highlighted the growing number of gassing incidents
that had occurred within the Department of the Youth
Authority. In 1999, Assemblyman Florez, introduced AB 1449,
which amended and added to the Penal Code and to the Welfare
and Institutions Code to extend the protection of
"anti-gassing" statute to apply not only to correctional
officers and employeers of state prisons, but to apply to all
peace officers and employees under the jurisdiction of the
Department of the Youth Authority or a local detention
facility.
"With the passage and chaptering of AB 1449, the law provided
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for the statute to be continued indefinitely. Under the
previous provisions of the law that protected state prison
workers, only state prison inmates were subjected to immediate
medical testing after a gassing incident and the goal and
provision of this bill was to allow for the same protections
to be afforded to local detention and Department of the Youth
Authority personnel. As was required in previous legislation
requiring CDCR to report to the Legislature incidents of
gassing in state prisons, AB 1449 required the Department of
Youth Authority to report the same relevant findings of
incidents of gassing to the Legislature."
2)This Bill Applies to All Civilly Committed Patients : To be
subjected to a 180-day renewable commitment hold in
California, the nonprisoner patient must have attempted,
inflicted, or made a serious threat of substantial physical
harm upon another person that either resulted in the
nonprisoner's detention for evaluation and treatment or that
occurred during such detention, and the nonprisoner must
continue to present a demonstrated danger of inflicting
substantial physical harm upon others. (WIC Section 5300.)
"Although the 'substantial danger of physical harm to others'
commitment criterion is the same for both groups,
sentence-expiring prisoners are subject to 'special' civil
commitment without any requirement that they engaged in a
recent dangerous act or made a serious threat to do so. And
yet, even without such proof, the statute authorizes
sentence-expiring mentally ill prisoners to be confined for
longer periods (renewable, one-year periods) than are
demonstrably dangerous, 'regular' civilly committed patients
(renewable, 180-day periods)." [Morris, Escaping the Asylum:
When Freedom Is a Crime (2003) 40 San Diego L. Rev. 481,
503-504.] Additionally, unlike a "regular" civilly committed
patient who begins his or her involuntary detention in a
community treatment center located in the county of his or her
residence, a sentence-expiring prisoner begin his or her
"civil" commitment in an isolated, maximum security, state
mental hospital, such as Atascadero or Patton. (Id. at 504.)
3)NGI : The NGI plea actually operates as a de facto guilty plea
as to everything except the sanity question. That is, unless
the defendant separately asserts a not-guilty plea, his or her
NGI plea operates as an admission of all the elements of the
charged offense, but it negates his or her criminal
culpability and precludes a prison sentence or other criminal
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punishment. [Cf. People v. Ferris (2005) 130 Cal.App.4th 773,
774.]
When a defendant enters an NGI plea, the trial court is required
to appoint two psychologists or psychiatrists to evaluate him
or her and submit written reports to the court. [Penal Code
Section 1027(a).] Most NGI findings occur in cases in which
both examining doctors agreed that the defendant met the test
for insanity. In that situation, the prosecution and the
defense typically agree to submit the sanity question to the
court on the basis of the reports, and the court proceeds to
find the defendant NGI.
When a defendant is found NGI (by either jury verdict or by the
judge), the court must refer him or her for an evaluation of a
suitable disposition [Penal Code Section 1026(c)] - and that
disposition is almost always a commitment to a state mental
hospital. The court is required to set a "maximum period of
commitment" - equal to the greatest sentence the defendant
could legally receive if convicted on all counts and
enhancements. [Penal Code Section 1026.5(a).]
4)MDO : The MDO program was enacted in 1986 and served as a
precursor of the SVP Act (enacted in 1995). An NGI acquittee
never sustains a criminal conviction and sentence. Instead,
the NGI finding absolves the person of criminal culpability
for his or her offenses and effectively diverts him or her
into a hospital commitment, in lieu of a prison sentence.
However, like the later-enacted SVP program, MDO is a
post-prison civil commitment. The defendant is convicted of
one or more of the violent offenses listed in the statute and
receives a conventional determinate prison sentence. [See
Penal Code Section 2962(e).] It is only when the defendant
is about to complete his or her prison term that the MDO
regimen starts.
Upon an administrative determination that the defendant meets
the MDO criteria, the defendant is paroled into the MDO
program. That is, rather than release him or her outright,
the California Department of Corrections and Rehabilitation
(CDCR) essentially paroles the prisoner into the supervision
of the State Hospital, and the defendant remains under a
hospital commitment throughout his or her parole period.
(Penal Code Section 2964.)
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The criteria for MDO treatment are: (a) the prisoner has a
"severe mental disorder" that is not in remission or cannot be
kept in remission without treatment; (b) the severe mental
disorder was a cause or aggravating factor in the commission
of his original conviction offense; (c) the conviction was for
one of the violent offenses designated in Penal Code Section
1170, and the defendant received an determinate prison term;
(d) the prisoner has been in treatment for the disorder for 90
days or more within the year immediately preceding his parole
or release; and (e) psychologists or psychiatrists of CDCR and
DMH certify that because of the severe mental disorder the
prisoner poses a substantial danger of physical harm if
released. (See generally Penal Code Section 2962.)
When the defendant is due to be released from parole, the State
can petition to extend his MDO commitment for an additional
year. And, as with NGI and SVP extensions, the State can file
successive petitions for further extensions raising the
prospect that despite his or her completion of a determinate
prison sentence the defendant may ultimately be hospitalized
for life.
5)SVP : Like MDO, SVP is a post-prison commitment regimen,
rather than one which diverts the defendant from criminal
punishment altogether, such as an NGI finding. Also, like
MDO, the process begins with DMH psychological evaluations,
certifying that the defendant meets the statutory criteria for
commitment. The commitment standard for an SVP requires a
person to have been convicted of a sexually violent offense
against two or more victims and who has a diagnosed mental
disorder that makes the person a danger to the health and
safety of others in that it is likely that he or she will
engage in sexually violent criminal behavior. [WIC Section
6600(a)(1).] A "diagnosed mental disorder" is defined as a
congenital or acquired condition affecting the emotional or
volitional capacity that predisposes the person to the
commission of criminal sexual acts in a degree constituting
the person a menace to the health and safety of others."
[Id., Section 6600(c).]
As with other regimens, there is a right to jury trial on an SVP
petition, and the prosecution bears the burden of proof beyond
a reasonable doubt. An SVP commitment is for two years (like
an NGI extension), and the prosecution may seek successive
two-year extensions of that commitment.
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6)Legislative Intent toward Treatment as Opposed to Punishment
for Persons under Civil Commitment : In approving the SVP law,
the Legislature stated in its findings and declarations,
"while these individuals [(SVPs)] have been duly punished for
their criminal acts, they are, if adjudicated SVPs, a
continuing threat to society. The continuing danger posed by
these individuals and the continuing basis for their judicial
commitment is a currently diagnosed mental disorder, which
predisposes them to engage in sexually violent criminal
behavior. It is intent of the Legislature that these
individuals be committed and treated for their disorders only
as long as the disorders persist and not for any punitive
purposes." [AB 888 (Rogan), Chapter 763, Statutes of 1995,
Section 1 (emphasis added).]
Thus, the 1995 Senate Committee on Criminal Procedure analysis
for AB 888 indicated that the Legislature disavowed any
"punitive purpose" and declared an intent to establish "civil
commitment" proceedings in order to provide treatment to
mentally disordered individuals who cannot control their
sexually violent criminal behavior. The Legislature also made
clear that, "persons who may be judicially committed . . . as
mentally disordered sexually offenders, SVPs, or mentally
retarded persons . . . shall be treated, not as criminals, but
as sick persons." (WIC Section 6250.) Consistent with these
remarks, the SVP Act was placed in the WIC, surrounded on each
side by other schemes concerned with the care and treatment of
various mentally ill and disabled groups. [See, e.g., WIC
Sections 5000 (LPS Act) and 6500 (Mentally Retarded Persons
Law).]
This bill punishes persons who commit a battery whilst committed
to a state hospital. It seems this bill goes against the
original intent of all civil commitments which is patient
treatment.
Further, persons who are NGI, MDO, or a SVP (often referred to
as prisoner patients) are receiving treatment for existing
mental illnesses. Second, one could argue that MDOs and SVPs
have already served their sentence in prison. Thus, once they
are released they should not be seen as prisoners, but rather
as patients in a nonpenal institution. After all, the person
was not transferred for further punishment, but rather for
treatment of a mental disorder that could not be treated
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adequately within the prison environment.
Moreover, if a person is NGI, it is quite possible that the
person does not know, whilst committing the battery by
gassing, the nature and quality of that act or that it was
wrong. At a minimum, evidence that supported the adjudication
of defendant's insanity is probative on the defendant's mental
illness at the time he or she would have committed the battery
by gassing.
In sum, bill creates a felony for persons who commit a battery
by gassing within a mental hospital or state-operated
developmental center. It is questionable whether a person who
is civilly committed for mental health issues should be
subject to state prison for his or her actions whilst under
treatment.
7)Existing Battery Statutes Apply to Persons under Civil
Commitment : A person is deemed to have committed a battery if
he or she used willful and unlawful force or violence upon the
person of another. (Penal Code Section 242.) Battery is
punishable by a fine not exceeding $2,000, or by fine and
imprisonment in a county jail not exceeding six months or
both. [Penal Code Section 243(a).] When a battery is
committed against any person and serious bodily injury is
inflicted upon that person, the battery is punishable by
imprisonment in a county jail not exceeding one year or
imprisonment in the state prison for two, three, or four
years. [Penal Code Section 243(d).] Any person who commits
an assault upon the person of another with a deadly weapon or
instrument other than a firearm, or by any means likely to
produce great bodily injury, shall be punished by imprisonment
in the state prison for two, three, or four years, or in a
county jail not exceeding one year, or by a fine not exceeding
$10,000. [Penal Code Section 245(a)(1).] Therefore, in cases
where serious injury is inflicted, this bill would not change
the penalty applicable under current law. In cases where no
injury was inflicted, the effect of this bill would be to
increase the penalty for this specific form of battery from
one year in the county jail to two, three or four years in
prison. Whether the force used by the defendant in any given
situation was likely to produce great bodily injury is for the
trier of fact to decide. [People v. Sargent (1999) 19 Cal.4th
1206, 1221-1222.]
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Therefore, this bill raises the question whether gassing a peace
officer or employee of a state hospital or state development
center, under certain circumstances, could be charged as an
assault likely to produce great bodily injury under Penal Code
Section 245(c). If the offender knew that he or she was
carrying an infectious disease before deliberately throwing
his or her bodily fluids on a peace officer or employee of a
state hospital or state development center, this could be
charged as assault with force likely to produce great bodily
injury and would be punished the same as this bill prescribes.
In Roman v. Superior Court (2003)113 Cal.App. 4th 27, the court
held that a man who knew he was HIV-positive and who forcibly
sodomized his victim could be held to answer for exposing his
victim to the likelihood of great bodily harm in a similar
fashion as that prohibited by Penal Code Section 245. (Roman,
supra, at 35.) Furthermore, the Supreme Court held that
whether the victim of an aggravated assault under Penal Code
Section 245 suffers actual harm is immaterial. [People v.
Aguilar (1997) 16 Cal.4th 1023, 1028.] Hence, pursuant to the
holding in Roman, when a person knows he or she suffers from a
life-threatening illness and he or she deliberately exposes
others to that illness, a person may charged with assault
likely to produce great bodily injury. The statutory schemes
establishing precautions for those who are potentially exposed
to human immunodeficiency virus, acquired immunodeficiency
syndrome, and hepatitis B and C by prisoners further supports
the notion that the Legislature recognizes that assaulting a
person with infected bodily fluids is an assault by means
likely to produce great bodily harm. (See Penal Code Section
7500 et seq.)
In sum, where the crime of battery by gassing upon a peace
officer or employee of a state hospital or state development
center with the intent to cause serious bodily injury, the
penalty under existing law is the same as this bill proposes.
If the person commits a "simple" battery, this bill increases
the punishment significantly. Again, it is important to
reflect on whether a patient civilly committed to a mental
hospital should be subject to prison time when he or she is
not of sound mind.
8)Argument in Support : According to the Service Employees
International Union (SEIU) Local 1000 , "AB 2246 will allow for
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the same protection of SEIU Local 1000 members currently being
afforded peace officers who guard inmates at juvenile
detention centers, jails and state prisons. This bill creates
a deterrent by allowing prosecutors to charge those who "gas"
employees of a state hospital or state developmental center
with a felony punishable by adding additional time to an
inmate's sentence."
9)Argument in Opposition : According to the Taxpayers for
Improving Public Safety , "Although there can be no reason for
battery upon a peace officer or employee of the DDS, the
individuals housed by DDS, are significantly different in one
special regard, there is more than a reasonable doubt that
these individuals are capable of reaching the minimum legal
standard at trial for having the intent to commit the crime
proscribed by this legislation.
"Unlike inmates in a CDCR facility who have been adjudicated to
be sufficiently mentally competent to form the intent to
commit the crime for which they are incarcerated, the
individuals residing at a state-operated developmental center
are not likely to be. That is why they are housed in a DDS
facility.
"Any attempt to prosecute such an individuals would result in a
massive expense, to the detriment of the County in which the
action will be tried, for not only the cost of the prosecution
and its expert witnesses, but also that of the public defender
and its expert witnesses. While there is good reason to
indict and try a competent individual for "gassing", it makes
no sense to bother incurring the expense of a trial for an
individual who is not sufficient competent to assist in
his/her own defense."
10)Related Legislation : SB 1419 (Runner) would have broadened
the scope of battery by gassing to include any peace officer.
SB 1419 was held in the Senate Committee on Public Safety.
11)Prior Legislation :
a) AB 1755 (Maldonado), of the 2001-02 Legislative Session,
would have created an alternate felony/misdemeanor for SVP
to escape from a state hospital or mental health facility.
AB 1755 failed passage in the Assembly Committee on
Appropriations.
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b) AB 1038 (Pacheco), of the 1999-2000, would have made
every confined person who committed battery by gassing in a
state prison or a local detention facility against any
person guilty of felony aggravated battery, punishable by
imprisonment in the state prison for two, three or four
years to be served consecutively if the offense was
committed while confined in the state prison; if the
offense was committed while confined in a county detention
facility, the punishment is two, three, or four years in
state prison to be served after the defendant completes the
county sentence previously imposed. AB 1038 was held on
the Assembly Committee on Appropriations' Suspense File.
c) AB 1449 (Florez), Chapter 627, Statutes of 2000, deleted
the sunset on the existing felony crime of battery by
gassing which applies to the state prison system and to add
local detention facilities with the Department of the Youth
Authority to that specific crime of battery "gassing," as
specified. AB 1449 also required actual contact with the
victim's skin or membranes in order to constitute the
offense of gassing and makes the offense an alternate
felony/misdemeanor.
d) AB 1522 (Margett), of the 1999-2000 Legislative Session,
extended the protection of the correctional anti-gassing
statute to include all peace officers who come into contact
with prison inmates, not just state prison employees, and
removed the January 1, 2001 sunset on the gassing statute.
AB 1522 was held in the Assembly Committee on
Appropriations.
e) AB 1833 (Maldonado), of the 1999-2000 Legislative
Session, would have made an escape from a state hospital or
mental health facility by a MDO or SVP punishable as an
alternate misdemeanor/felony. AB 1833 failed passage in
this Committee.
f) SB 795 (McPherson), of the 1999-2000 Legislative
Session, would have required the person in charge of a
youth correctional facility to investigate "gassing"
incidents, and required the ward suspected of committing
the gassing to be tested for hepatitis and tuberculosis.
SB 795 was later amended into an unrelated Public Safety
bill and vetoed.
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g) AB 995 (Pacheco), Chapter 591, Statutes of 1998,
provided that every person confined in the state prison who
commits a battery by gassing on any officer or employee is
guilty of aggravated battery, punishable by two, three or
four years in state prison.
h) AB 1783 (Bordonaro), of the 1997-98 Legislative Session,
made it a felony for any patient housed in a security
compound of a state hospital to commit a battery against,
and inflict an injury upon, the person of another. AB 1783
failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Peace Officers Research Association of California
Service Employees International Union Local 1000
Opposition
Taxpayers for Improving Public Safety
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744