BILL ANALYSIS �
AB 1188
Page 1
Date of Hearing: April 26, 2011
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1188 (Pan) - As Amended: March 31, 2011
SUMMARY : Adds four new offenses relating to child abuse to the
list of "violent" felonies, adds five new offenses related to
human trafficking and the abuse of a child to the "serious"
felony list. Specifically , this bill:
1)Makes child abuse or neglect, assault on a child under eight
years of age resulting in death, assault on a child under
eight resulting in a child becoming comatose due to brain
injury, and cruel and inhuman corporal punishment on a child
"violent" felonies.
2)Makes human trafficking, misdemeanor luring of a minor under
the age of fourteen, child abuse or neglect, assault on a
child under eight years of age resulting in death, assault on
a child under eight resulting in a child becoming comatose due
to brain injury, and cruel and inhuman corporal punishment on
a child "serious" felonies.
EXISTING LAW :
1)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 health may be
endangered is shall be imprisoned in a county jail not
exceeding one year or in the state prison for two, four or six
years. �Penal Code Section 273a(a).]
2)Articulates that any person who under circumstances 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,
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punishable by up to six months in the county jail. �Penal
Code Section 273a(b).]
3)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 two, four, or six years, or in the county
jail not exceeding one year; by a fine up to $6,000; or by
both that imprisonment and fine. �Penal Code Section 273(d).]
4)States that any person having care and custody of a child who
is under eight years of age, 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. (Penal
Code Section 273ab.)
5)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. (Penal Code Section
12022.95.)
6)Provides that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
felony violation of enticement of a minor into prostitution,
pimping or pandering, abduction of a minor for the purposes of
prostitution, extortion, or to obtain forced labor or
services, is guilty of human trafficking. �Penal Code Section
236.1(a).]
7)Provides that an adult stranger 21 years of age or older who
knowingly contacts or communicates with a minor 14 years of
age or younger, who knew or should have known that the minor
is 14 years of age or younger, for the purpose of persuading,
transporting, or luring the minor away from his or her home or
known location, without consent, is guilty of either an
infraction or a misdemeanor. �Penal Code Section 272(b)(1).]
8)Provides that notwithstanding any other law, any person who is
convicted of a felony that is contained in the "violent"
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felony list shall accrue no more than 15% of work-time credit.
�Penal Code Section 2933.1(a).]
9)Provides that plea bargaining in any case in which indictment
or information charges any "serious" felony is prohibited,
unless there is insufficient evidence to prove the people's
case, or testimony of a material witness cannot be obtained,
or a reduction or dismissal would not result in a change in
sentence. �Penal Code Section 1192.7(b).]
10)States that any person convicted of a "serious" felony who
previously has been convicted of a "serious" felony in
California, or of any offense committed in another
jurisdiction, which includes all of the elements of any
"serious" felony, shall receive in addition to the sentence
imposed by the court for the present offense, a five year
enhancement for each such prior conviction on charges brought
and tried separately. The terms of the present offense and
each enhancement shall run consecutively. �Penal Code Section
667(a)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The National
Child Abuse and Neglect Data System (NCANDS) reported an
estimated 1,740 child fatalities in 2008. This translates to
a rate of 2.33 children per 100,000 children in the general
population. NCANDS defines 'child fatality' as the death of a
child caused by an injury resulting from abuse or neglect, or
where abuse or neglect was a contributing factor. Fatal child
abuse may involve repeated abuse over a period of time (e.g.,
battered child syndrome), or it may involve a single,
impulsive incident (e.g., drowning, suffocating, or shaking a
baby). In 2008, nearly 40% of fatalities were caused by
multiple forms of maltreatment. Neglect accounted for 31.9%
and physical abuse for 22.9%. Medical neglect accounted for
1.5% of fatalities.
"The number and rate of fatalities have been increasing during
the past few years. Many researchers and practitioners
believe child fatalities due to abuse and neglect are still
underreported. Studies in Nevada and Colorado have estimated
that as many as 50% to 60% of child deaths resulting from
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abuse or neglect are not recorded as such (Child Fatality
Analysis �Clark County], 2005; Crume, DiGuiseppi, Byers,
Sirotnak, & Garrett, 2002).
"No matter how the fatal abuse occurs, one fact of great concern
is that the perpetrators are, by definition, individuals
responsible for the care and supervision of their victims. In
2008, parents, acting alone or with another person, were
responsible for 71.0% of child abuse or neglect fatalities.
"In California each year alone, nearly a half million children
come to the attention of child welfare officials through
reports of suspected child abuse or neglect. Of 106,706
substantiated referrals for child abuse and neglect in 2007,
41% were for general neglect; 18% involved children at
substantial risk of abuse; 9% were for emotional abuse; and 9%
were for physical abuse. Fatal child abuse and neglect is the
most extreme consequence of child maltreatment. In
California, homicide is the leading cause of injury death in
infancy, with 80-90% of perpetrators being parents or
caretakers, and the second leading cause of injury death among
1-4 year olds."
2)Drafting Problems : Among other additions to the "violent" and
"serious" felony lists, this bill adds Penal Code Sections
273a and 273ab. However, each of these sections contains two
subdivisions that define separate and distinct offenses.
Penal Code Section 273a(a) defines the crime of willful harm
or injury to a child under circumstances likely to produce
great bodily harm or death, and willfully permitting a child,
under circumstances likely to produce great bodily harm or
death, to suffer unjustifiable pain or mental suffering (child
abuse and neglect). This subdivision is an alternate
felony/misdemeanor which means, depending on the
circumstances, the offense can be charged as either a felony
or a misdemeanor. This bill should be limited to felony
violations of this subdivision only. Likewise, Penal Code
Section 273a(b) defines the misdemeanor crime of willful harm
or injury to a child under circumstances other than those
likely to produce great bodily harm or death, and willfully
permitting a child, under circumstances other than those
likely to produce great bodily harm or death, to suffer
unjustifiable pain or mental suffering. Is it the intent of
the author to add a misdemeanor to the "violent" and "serious"
felony list? This bill should add the specific subdivisions
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that are to be made "serious" and "violent" felonies.
In addition, Penal Code Section 273ab contains two subdivisions
that define separate and distinct offenses. Penal Code
Section 273ab(a) defines the crime of assault on a child who
is under eight years of age with force likely to produce great
bodily injury resulting in death. Penal Code Section 273ab(b)
defines the crime of assault on a child who is under eight
years of age with force likely to produce great bodily injury
resulting in the child becoming comatose due to brain injury
or suffering paralysis of a permanent nature. Both of these
offenses are felonies. Therefore, adding Penal Code Section
273ab to the "violent" and "serious" list adds two new
offenses rather than one. As mentioned above, both of these
subdivisions should be specifically referred to in this bill,
rather than just Penal Code Section 273ab. In addition, it
would be consistent with other offenses in Penal Code Sections
667 and 1192.7 that are listed by their specific subdivision.
Penal Code Section 273d(a), which defines the crime of willfully
inflicting upon a child any cruel or inhuman corporal
punishment or any injury resulting in a traumatic condition,
is another alternate felony/misdemeanor. This bill should be
limited to felony violations of this subdivision if that is
the author's intent?
3)Violent" Felonies and Prison Overcrowding. Prison
Overcrowding Crisis : One of the effects of designating a
crime as a "violent" felony is that it reduces an inmate's
work-time credits. Penal Code Section 2933.1(a) provides,
notwithstanding any other law, that any person convicted of a
crime listed in Penal Code 667.5(c), the violent felony list,
shall accrue no more than 15% of work-time credit. Inmates in
the state prison who are not convicted of violent crimes, or
sentenced under the "Three Strikes" Law, receive what is
generally known as "day-for-day" credits. Penal Code Section
2933(b) provides that for every six months of continuous
incarceration a prisoner shall be awarded credit reductions
from his or her term of confinement of six months. Therefore,
at present, a prisoner committed to state prison for felony
child abuse or neglect �Penal Code Section 273a(a)] and felony
infliction of cruel and inhuman corporal punishment on a child
�Penal Code Section 273d(a)] are required to serve one-half of
his or her sentence. By making these offenses "violent"
felonies, these inmates would be required to serve 85% of
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their sentences as opposed to one-half. Clearly, designating
felony child abuse and neglect and felony infliction of cruel
and inhuman corporal punishment on a child these will require
persons convicted of these offenses to serve significantly
longer periods of incarceration.
The California Policy Research Center (CPRC) 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, CPRC (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, thirty 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 incentive s 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 (2007), pg. 1, 2.]
In January 2010, the Three Judge Panel issued its final ruling
ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. �Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] The United States
Supreme Court heard oral argument in November 2010 and is
expected to rule by June 2011 on whether the Three Judge
Panel's "prisoner release order" is an appropriate and
narrowly tailored remedy contemplated by the Prison Litigation
Reform Act. �Docket No. 09-1233; November 30, 2010.] Given
the immediacy of the final disposition of this landmark case,
great care ought to be paid to any bill that exacerbates
California's already overcrowded prisons.
Additionally, this bill adds the alternate felony/misdemeanors
of child abuse or neglect and cruel and inhuman corporal
punishment on a child to the list of "violent" felonies. The
violent felony list contains the most serious crimes under
California law, including crimes such as murder, attempted
murder, mayhem, forcible sex crimes, arson, and robbery. The
violent felony list does not contain any crimes classified as
alternate felony/misdemeanors as they are not deemed to be of
a serious enough nature if they can alternatively be charged
as a misdemeanor. To add the alternate felony/ misdemeanor
offenses of child abuse or neglect and cruel and inhuman
corporal punishment on a child to the list of violent felonies
would be unprecedented.
4)"Serious" Felony Designation : This bill designates human
trafficking, child abuse or neglect, assault on a child under
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eight years of age resulting in death, assault on a child
under eight years of age resulting in the child becoming
comatose due to brain injury, and the infliction of inhuman
corporal punishment as "serious" felonies. Penal Code Section
1192.7(b) prohibits plea bargaining in any case in which the
indictment or information charges a "serious" felony unless
there is insufficient evidence to prove the charge, or the
testimony of a material witness cannot be obtained. The plea
bargaining prohibition in "serious" felony cases results in
less cases being settled and more cases going to jury trial
resulting in longer sentences. Adding five new felonies to
the "serious" felony list will undoubtedly aggravate prison
overcrowding.
Additionally, any person convicted of a "serious" felony who has
previously been convicted of a "serious" felony receives in
addition to the sentence imposed by the court an additional
and consecutive five-year enhancement for each such prior
conviction. �Penal Code Section 667(a)(1).] Adding all of
the above new crimes to the "serious" felony will result in
more enhanced sentences and will also contribute to prison
overcrowding.
5)Argument in Support : According to the Child Abuse Prevention
Center , "Nearly a half million children are reported abused or
neglected in California each year, with at least one child
dying from that mistreatment every day. Many more cases go
unreported. Among California children less than a year old,
homicide is the leading cause of death. Meanwhile, budget
constraints are forcing deep cuts in child abuse prevention
programs and family protective services, making it all the
more important to recognize child abuse as the serious and
violent crime it is. AB 1188 will save the lives of children
and send a powerful message that California is serious about
stopping child abuse and the exploitation of children.
6)Argument in Opposition : According to the California Public
Defenders Association , "Existing law provides sufficient
prison time for the crimes outlined in AB 118 without the need
to expand the current violent felony list. Under existing
Penal Code section 667.5(c) which lists violent felonies, the
following catch all charge is already a violent felony,
namely, any felony in which the defendant inflicts great
bodily injury on any person or any felony in which the
defendant uses a firearm. Already 667.5(c) includes any
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felony punishable by death or imprisonment in the state prison
for life. Penal Code section 273ab, which covers assault of a
child by means of force that to a reasonable person would be
likely to produce great bodily injury, resulting in the
child's death carries a mandatory state prison sentence of 25
years to life. There is no additional reason to add the crime
to the violent felony list. AB 1188 would seek to add two
wobblers to the list of violent felonies, namely Penal Code
section 273a and 273d."
REGISTERED SUPPORT / OPPOSITION :
Support
Child Abuse Prevention Center
Crime Victims United of California
District Attorney, County of Sacramento County
Five private individuals
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744