BILL ANALYSIS �
AB 1462
Page 1
Date of Hearing: March 6, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1462 (Mendoza) - As Amended: February 23, 2012
SUMMARY : Reduces worktime credits and imposes minimum
mandatory fines for those convicted of specified vehicular
manslaughter offenses. Specifically, this bill :
1)Limits the credits available to a person who is serving a
sentence in state prison, a county jail, industrial farm, road
camp, or city jail for specified cases of vehicular
manslaughter, including gross vehicular manslaughter while
intoxicated and vehicular manslaughter while intoxicated, to
15% of the worktime credits. By increasing the time served in
county jails, this bill would impose a state-mandated local
program.
2)Imposes a minimum mandatory fine of not less than $2,000
($7,503 with penalties and assessments) for gross vehicular
manslaughter while intoxicated.
3)Imposes a minimum mandatory fine of not less than $1,000
($3,803 with penalties and assessments) but not more than
$10,000 ($37,103 with penalties and assessments) for vehicular
manslaughter while intoxicated.
4)Imposes a minimum mandatory fine of not less than $1,000
($3,803 with penalties and assessments) for vehicular
manslaughter.
EXISTING LAW :
1)States that gross vehicular manslaughter while intoxicated is
the unlawful killing of a human being without malice
aforethought, in the driving of a vehicle, where the driving
was in violation of specified driving-under-the-influence
(DUI) offenses, and the killing was either the proximate
result of the commission of an unlawful act, not amounting to
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a felony, and with gross negligence, or the proximate result
of the commission of a lawful act that might produce death, in
an unlawful manner, and with gross negligence. �Penal Code
Section 191.5(a).]
2)States that vehicular manslaughter while intoxicated is the
unlawful killing of a human being without malice aforethought,
in the driving of a vehicle, where the driving was in
violation of specified DUI offenses, and the killing was
either the proximate result of the commission of an unlawful
act, not amounting to a felony, but without gross negligence,
or the proximate result of the commission of a lawful act that
might produce death, in an unlawful manner, but without gross
negligence. �Penal Code Section 191.5(b).]
3)Provides that a first time offender of gross vehicular
manslaughter while intoxicated shall be punished by
imprisonment in the state prison for 4, 6, or 10 years.
�Penal Code Section 191.5(c)(1).]
4)Provides that an offender of vehicular manslaughter while
intoxicated is punishable by imprisonment in a county jail for
not more than one year or by imprisonment for 16 months or two
or four years. �Penal Code Section 191.5(c)(2).]
5)Specifies that the vehicular manslaughter while intoxicated
and gross vehicular manslaughter while intoxicated sections of
the Penal Code shall not be construed as prohibiting or
precluding a charge of murder under Penal Code Section 188
upon facts exhibiting wantonness and a conscious disregard for
life to support a finding of implied malice, or upon facts
showing malice consistent with the holding of the California
Supreme Court in People v. Watson, 30 Cal. 3d 290. Nor shall
the sections be construed as making any homicide in the
driving of a vehicle or the operation of a vessel punishable
which is not a proximate result of the commission of an
unlawful act, not amounting to felony, or of the commission of
a lawful act which might produce death, in an unlawful manner.
�Penal Code Section 191.5(e) and (f).]
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6)Mandates that any person who is convicted of a violent felony
(strike) offense shall accrue no more than 15% of worktime
credit. �Penal Code Section 2933.1(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "A person who
kills another as a result of driving while under the influence
of drugs or alcohol should be eligible for the same, not less,
conduct credits than a person who causes great bodily injury
as a result of driving while impaired. The current sentencing
scheme creates a sentencing inequity that benefits the
alcohol/drug-impaired offender. This reality is shocking to
all victims (next-of-kin) of DUI fatalities. Correcting this
inequity is common sense and long overdue."
2)Vehicular Manslaughter is Not a Violent Felony : Violent
felons are only entitled to 15% worktime credits, and must
therefore serve 85% of their sentences. Vehicular
manslaughter while intoxicated and gross vehicular
manslaughter while intoxicated are not violent felonies.
Felonies which inflict great bodily injury as defined in Penal
Code Section 12022.7, et seq., are violent felonies. However,
Penal Code Section 12022.7 specifically exempts manslaughter
and murder from inclusion in crimes that constitute great
bodily injury. As a result, vehicular manslaughter while
intoxicated and gross vehicular manslaughter are serious
felonies (strikes), but not classified as violent felonies
which require offenders to serve 85% of their sentences.
3)On-going Concerns for Prison Overcrowding : In November 2006,
plaintiffs in two ongoing class action lawsuits-Plata v. Brown
(involving inmate medical care) and Coleman v. Brown
(involving inmate mental health care)-filed motions for the
courts to convene a three-judge panel pursuant to the U.S.
Prison Litigation Reform Act. The plaintiffs argue that
persistent overcrowding in the state's prison system was
preventing the California Department of Corrections and
Rehabilitation (CDCR) from delivering constitutionally
adequate health care to inmates. The three-judge panel
declared that overcrowding in the state's prison system was
the primary reason that CDCR was unable to provide inmates
with constitutionally adequate health care. In January 2010,
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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 State Supreme Court upheld the decision of the
three-judge panel, declaring that "without a reduction in
overcrowding, there will be no efficacious remedy for the
unconstitutional care of the sick and mentally ill" inmates in
California's prisons. �Brown v. Plata (2011) 131 S.Ct. 1910,
1939; 179 L.Ed.2d 969, 999.]
According to a recent report by the Legislative Analyst's
Office, "Based on CDCR's current population projections, it
appears that it will eventually reach the court-imposed
population limit, though not by the June 2013 deadline." �See
Refocusing CDCR After the 2011 Realignment, Feb. 23, 2012,
pp.3
.
] "In particular, the projections show the state missing the
final population limit of no more than 110,000 inmates housed
in state prisons by June 2013. Specifically, the projections
show the state exceeding this limit by about 6,000 inmates.
However, the projections indicate that the state will meet the
court-imposed limit by the end of 2014." (Id. at p. 9.)
"While the state has undergone various changes to reduce
overcrowding prior to the passage of the realignment
legislation-including transferring inmates to out-of-state
contract facilities, construction of new facilities, and
various statutory changes to reduce the prison population-the
realignment of adult offenders is the most significant change
undertaken to reduce overcrowding." (Id. at p. 8.) Because
the provisions of this bill require a defendant convicted of
specified vehicular manslaughter offenses to serve 85% of his
or her sentence, it appears to aggravate the on-going problem
of prison overcrowding.
4)Minimum Mandatory Fines : This bill imposes minimum mandatory
fines on specified vehicular manslaughter offenses.
a) Limitation of Judicial Discretion : The effect of
minimum mandatory fines is to limit the discretion of trial
judges to fashion remedies which best fit the facts and
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circumstances of individual cases. In general, trial
judges are in the best position to determine the most
appropriate punishment for a particular defendant; the
judge has heard the facts and circumstances of a particular
case. By proscribing a minimum mandatory fine, as opposed
to merely increasing the maximum possible fine, the
Legislature is tying the hands of judges who are in a much
better position to make those decisions.
b) Penalties and Assessments : With state and local budget
constraints in recent years, penalty assessments have
become a way for California and its counties to raise
needed funds. Currently, penalty assessments are 270% of
the base fine, with a flat $103 added to each fine. For
example, this bill imposes a potential $10,000 fine for
vehicular manslaughter while intoxicated.
Calculation of penalty assessments on a base fine of $10,000:
Base Fine: $10,000
Penal Code 1464 Assessment: $10,000($10 for every
$10 in fines)
Penal Code 1465.7 Assessment: 2,000(20%
surcharge)
Penal Code 1465.8 Assessment: 40($40
fee per fine)
Government Code 70372 Assessment: 5,000($5 for every
$10 in fines)
Government Code 76000 Assessment: 7,000($7 for every
$10 in fines)
Government Code 76000.10 Assessment: 4($4 fee per
fine)
Government Code 76000.5 Assessment: 2,000 ($2 for every
$10 in fines)
Government Code 76104.6 Assessment: 1,000($1
for every $10 in fines)
Vehicle Code 42007.1(a) Assessment: 49($49
fee per fine)
Vehicle Code 40508.6 Assessment: 10($10
fee per fine)
Total Fine with Assessment: $37,103
The bill additionally imposes minimum mandatory fines of
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$1,000 and $2,000 for specified vehicular manslaughter
offenses. With penalties and assessments a $1,000 fine is
actually $3,803 and $2,000 is actually $7,503.
5)Argument in Support : According to the Orange County Board of
Supervisors , "Currently, individuals who drive under the
influence of drugs and/or alcohol can actually serve less time
if they kill someone than if their victim is injured and
survives. This is due to the disparity of custody credits
given in these cases. A driver who kills his victim is
usually charged with vehicular manslaughter in violation of
Penal Code sections 191.5 or 192. While those crimes are
considered serious felony offenses pursuant to Penal Code
sections 1192.7 and 1192.8, the defendant would still be
entitled to custody credits of 50 percent.
"On the other hand, if an intoxicated driver inflicts great
bodily injury (GBI) on the victim, he would be charged with
felony driving under the influence of alcohol and/or drugs,
with an enhancement for the infliction of great bodily injury
pursuant to Penal Code section 12022.7(a). The addition of
the great bodily injury enhancement makes the crime a violent
felony pursuant to Penal Code section 667.5(c) and the
defendant's conduct credits would be limited to 15 percent
pursuant to Penal Code section 2933.1. Though California
courts have stated that great bodily injury includes death,
the GBI enhancement cannot be alleged on vehicular
manslaughter offenses because it is an element of the
offense."
6)Argument in Opposition : According to the California Public
Defenders Association , "Gross vehicular manslaughter, with or
without intoxication, is by definition not intentional, and is
therefore less culpable than most if not all violent or
serious felonies. By definition, gross vehicular manslaughter
involves the unlawful death of another while intoxicated but
in the absence of malice aforethought and the killing can be
either the proximate result of the commission of an unlawful
ac, not amounting to a felony, and with gross negligence, or
the proximate result of the commission of a lawful act that
might produce death, in an unlawful manner, and with gross
negligence. Driving the speed limit but under conditions such
as during a rainstorm or in extreme fog could be the lawful
act that might be conducted in an unlawful manner and with
gross negligence. Even the unlawful act, such as a
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misdemeanor or infraction is not required to be inherently
dangerous but rather dangerous under the circumstances.
Driving 65 miles per hour on the freeway isn't inherently
dangerous but might be dangerous under the circumstances
during rush hour traffic or poor visibility."
7)Prior Legislation :
a) AB 303 (Spitzer), 2007-08 Legislative Session, would
have increased the penalty for vehicular manslaughter while
intoxicated from an alternate felony/misdemeanor,
punishable by up to one year in county jail or by 16
months, 2 or 4 years in state prison, to a straight felony,
punishable by 16 months, 2 or 4 years in state prison. AB
303 would have also clarified that gross vehicular
manslaughter while intoxicated was a violent felony,
thereby making the offense a "strike" for sentencing
purposes - double the base term with a prior violent or
serious offense - and reducing potential sentence credits
from 50% to 15%. AB 303 was held in the Assembly
Appropriations Committee.
b) AB 2559 (Benoit), 2005-06 Legislative Session, increased
the penalty for vehicular manslaughter while intoxicated
without gross negligence from an alternate
felony/misdemeanor to a straight felony and increased
penalties for other specified vehicular manslaughter
sections. Prior to the hearing by this Committee, the
author amended AB 2559 to remove the provisions related to
increasing penalties and instead made technical changes the
vehicular manslaughter sections of the Penal Code.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
Orange County Board of Supervisors
Orange County District Attorney
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Friends Committee on Legislation
AB 1462
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Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744