BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1432 (Mitchell)
As Amended May 25, 2012
Hearing date: June 12, 2012
Penal Code (URGENCY)
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VOTE ONLY
CRIMES
Source: Author
Prior Legislation: AB 1422 (Torlakson) - Ch. 477, Stats. 2000
Support: Crime Victims United of California; Peace Officers
Research Association of California; Los Angeles County
Sheriff's Department; an individual
Opposition:None known
Assembly Floor Vote: Ayes 67 - Noes 3
KEY ISSUES
SHOULD IT BE A MISDEMEANOR FOR ANY PARENT OR GUARDIAN HAVING THE
CARE, CUSTODY, OR CONTROL OF A CHILD UNDER 14 YEARS OF AGE WHO
KNOWS OR SHOULD HAVE KNOWN THAT THE CHILD HAS DIED TO FAIL TO
NOTIFY A PUBLIC AGENCY WITHIN 24 HOURS OF THE TIME THAT THE
PARENT OR GUARDIAN KNEW OR SHOULD HAVE KNOWN THAT THE CHILD HAS
DIED?
SHOULD IT BE A MISDEMEANOR FOR ANY PARENT OR GUARDIAN HAVING THE
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CARE CUSTODY OR CONTROL OF A CHILD UNDER 14 YEARS OF AGE TO
NOTIFY LAW ENFORCEMENT WITHIN 24 HOURS OF THE TIME THAT THE
PARENT OR GUARDIAN KNOWS OR SHOULD HAVE KNOWN THAT THE CHILD IS
A MISSING PERSON, AS DEFINED, AND THAT THERE IS EVIDENCE THAT
THE CHILD IS A PERSON AT RISK, AS DEFINED?
PURPOSE
The purpose of this bill is to make it a misdemeanor for a
parent or guardian to fail to report the death or disappearance
of a child under the age of 14 under specified circumstances.
Existing law states that the desertion of a child in any place
with the intent to abandon the child is prohibited and is
punishable by imprisonment for up to one year, a fine of $1,000,
or both fine and imprisonment. (Penal Code � 271.)
Existing law states that any person who, under circumstances or
conditions likely to produce great bodily harm or death,
willfully causes the or permits any child to suffer, or inflict
thereupon unjustifiable physical pain or mental suffering, or
have the care or custody of any child, willfully causes or
permits the person or health of that child to be injured, or
willfully causes or permits that child to be placed in a
situation where his or her person or health is endangered, shall
be punished by imprisonment in jail not exceeding one year, or
in the state prison for two, four or six years. (Penal Code �
273a(a).)
Existing law states that any person who, under circumstances or
conditions other than those likely to produce great bodily harm
or death, willfully causes the or permits any child to suffer,
or inflict thereupon unjustifiable physical pain or mental
suffering, or have the care or custody of any child, willfully
causes or permits the person or health of that child to be
injured, or willfully causes or permits that child to be placed
in a situation where his or her person or health is endangered,
is guilty of a misdemeanor. (Penal Code � 273a(b).)
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Existing law states that any person having the care or custody
of a child who is under eight years or age, who assaults the
child by means of force that a reasonable person would be likely
to produce great bodily injury, resulting in the child's death,
shall be punished by imprisonment in the state prison for 25
years to life. (Penal Code � 273ab(a).)
Existing law states that every person who, having knowledge of
an accidental death actively conceals or attempts to conceal
that death, shall be guilty of a misdemeanor punishable by
imprisonment in a county jail for up to one year, a fine not
less than $1,000 or more than $10,000, or by both fine and
imprisonment. "Actively conceal and accidental death" includes:
Performing an overt act that conceals the body or
directly impeded the ability of authorities or family
members to discover the body;
Directly destroying the suppressing evidence of the
actual physical body of the deceased, including but not
limited to, bodily fluids or tissues; or,
Destroying or suppressing the actual physical
instrumentality of death. (Penal Code � 152.)
Existing law generally requires any person who reasonably
believes that he or she has observed the commission of a murder,
rape or forcible molestation against a child under the age of 14
years to notify a peace officer, as specified. These provisions
do not apply to a person who is related to either the victim or
the offender, including a husband, wife, parent, child, brother,
sister, grandparent, grandchild, or other person related by
consanguinity or affinity; a person who fails to report based on
a reasonable mistake of fact; or a person who fails to report
based on a reasonable fear for his or her own safety or for the
safety of his or her family. Violation of this provision is a
misdemeanor punishable by a fine of not more than $1,500, by
imprisonment in jail for not more than six months, or by both
that fine and imprisonment. (Penal Code �152.3.)
Existing law defines a "Public safety agency," as a functional
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division of a public agency which provides firefighting, police,
medical, or other emergency services. (Government Code � 53102.)
Existing law provides that "missing person" includes, but is not
limited to, a child who has been taken, detained, concealed,
enticed away, or retained by a parent in violation of Chapter 4
(commencing with Section 277) of Title 9 of Part 1. It also
includes any child who is missing voluntarily or involuntarily,
or under circumstances not conforming to his or her ordinary
habits or behavior and who may be in need of assistance. (Penal
Code � 14213(a).)
Existing law provides that "evidence that the person is at risk"
includes, but is not limited to, evidence or indications of any
of the following:
The person missing is the victim of a crime or foul
play.
The person missing is in need of medical attention.
The person missing has no pattern of running away or
disappearing.
The person missing may be the victim of parental
abduction.
The person missing is mentally impaired. (Penal Code �
14213 (b).)
This bill provides that any parent or guardian having the care,
custody or control of a child under 14 years of age who knows or
should have known that the child has died shall notify a public
agency, as defined in Government Code Section 53102 within 24
hours of the time the parent or guardian knew or should have
known that the child has died. However, this shall not apply
when the child is otherwise under the immediate care of a
physician at the time of death, or if a public agency, a
coroner, or a medical examiner is otherwise aware of the death.
This bill provides that any parent or guardian having the care,
custody or control of a child under 14 years of age shall notify
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law enforcement within 24 hours of the time that the parent or
guardian knows or should have known that the child is a missing
person and there is evidence that the child is a person at risk,
as those terms are defined in Penal Code Section 14213. However,
this shall not apply if law enforcement is otherwise aware of
the missing person.
This bill provides that a violation of either of the above is a
misdemeanor punishable by imprisonment in the county jail for
not more than one year or by a fine not exceeding $1,000 or by
both that fine and imprisonment.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
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overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
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167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Law enforcement has known for years that the first 48
hours of a person's disappearance are critical to the
chances of finding that child alive and successfully
prosecuting any related criminal behavior. Recent
developments make it clear that we don't have the
luxury of leaving the protection of children to others,
or ignoring well-founded suspicions.
2. Failure to Report a Death of a Child
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As it has been amended since the May 8th hearing in this
Committee, this bill creates a misdemeanor for a parent or
guardian to fail to notify a public agency within 24 hours of
the death of a child under the age of 14. The definition of
public agency includes calling a firefighting agency or hospital
as well as the police so that a person who discovers that his or
her child is dead will not be violating the law if he or she
calls medical personnel or 911 before thinking to call the
police. This section will also not apply if the child is
already in a doctor's care or a public safety agency, medical
examiner or coroner has already been notified of the death. The
penalty for violating this new section would be a misdemeanor
with up to one year in county jail and/or up to a $1,000 fine.
These amendments are intended to address concerns raised in
Committee that because of some of the vague terms in the prior
version of the bill, a person could mistakenly violate this
section. They are also intended to address concerns raised that
the first instinct may not be to call the police but to call a
hospital or paramedic if a person were to find a child injured.
Finally, they are intended to address the concern that law
enforcement would receive too many calls by eliminating the need
to call when the child is otherwise in a doctor's care when he
or she dies.
If a person actively conceals an accidental death he or she is
already guilty of a misdemeanor under Penal Code Section 152 and
if he or she caused the death he or she would be guilty of a
crime so this bill would be criminalizing those who neither
caused the death nor actively concealed an accidental death.
Under existing law it is also a misdemeanor for a person who is
not a family member to fail to report the murder of a child
under the age of 14. That provision was added by AB 1422
(Torlakson) in 2000. From the Committee on Public Safety
Analysis at the time the rationale for exempting family members
was:
This language is similar to a Florida law requiring
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reporting and addresses one of the concerns raised by
opposition that in some inter-familial or domestic
violence circumstances there may be reasons other than
fear to not report one of these crimes. There are
reasons that a person may hesitate before reporting a
crime committed by a family member. If a person
ultimately chooses to come forward, that person should
not fear being charged with a crime.
3. Notification of Disappearance
As amended since it was heard on May 8th in this Committee, this
bill would make it a misdemeanor for a parent or guardian having
the care, custody and control of a child under 14 to knowingly
fail to notify law enforcement within 24 hours of the time that
a parent or guardian knows or should have known the child is
missing and there is evidence that the person is at risk. The
bill uses the existing definitions for "missing person" and
"person at risk" that law enforcement uses when taking a report
on a missing person. This section would not apply if law
enforcement is already aware that the child is a missing person.
The penalty for violating this new section would be a
misdemeanor with up to one year in county jail and/or up to a
$1,000 fine.
These amendments are intended to address concerns raised in
Committee about the vagueness of some of the terms in the
earlier version of the bill.
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