BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
AB 65 (Achadjian) - Crimes: sex crimes committed by
impersonation.
Amended: June 25, 2013 Policy Vote: Public Safety 7-0
Urgency: Yes Mandate: Yes
Hearing Date: July 1, 2013 Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 65, an urgency measure, would expand the
definitions of rape and sodomy committed by fraud or
impersonation to include the occurrence where an individual
submits under the belief that the person committing the act is
someone known to the victim other than the accused, and this
belief is induced by artifice, pretense, or concealment by the
perpetrator, with the intent to induce the victim's belief.
Fiscal Impact:
Potential minor near-term increase in state incarceration
costs, likely less than $25,000 (General Fund) annually, for
increased state prison commitments to the extent expanding
the definition of specified crimes results in additional
felony convictions. Out-year costs could potentially be
greater due to the cumulative cost effect of overlapping
base sentence terms, parole, and/or sentence enhancements
applicable to the specified crimes.
Potential future cost pressure of $60,000 (General Fund)
per prison commitment per year to the extent the long-term
impact of pending legislation considered in aggregate
affects the state prison population to a degree that
undermines the state's ability to reduce or sustain prison
overcrowding below the federal court-imposed population
limit.
Likely minor impact to state trial court workload incurred
by the Judicial Branch to the extent the provisions of this
bill result in additional felony court filings and related
court time.
Minor, absorbable workload impact to the DOJ associated
with increased sex offender registration.
Minor non-reimbursable local law enforcement costs, offset
to a degree by minor fine revenue.
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Background: Existing law provides that rape by fraud or
impersonation can only be committed where the victim submits to
the act under the belief that the perpetrator is the spouse of
the victim (Penal Code (PC) � 261(a)(5)). This same provision
also applies to specified crimes involving unlawful oral
copulation, sodomy, or sexual penetration. Due to this
restrictive definition based on the marital status of a victim,
current law creates a discrepancy with respect to the protection
of a victim who is married versus a victim who is not.
The incident that prompted this measure and AB 765 (Achadjian)
in 2011 involved a male suspect who entered a residence during
the night and had intercourse with the female occupant. The
victim believed that the suspect was her boyfriend with whom she
shared the residence. Although awake during the encounter, the
victim did not immediately realize the perpetrator was not her
boyfriend. When the victim realized that the man was not her
boyfriend, she resisted and the perpetrator fled. Although the
perpetrator was arrested, the district attorney could not
prosecute for felony rape due to the fact that the victim and
her boyfriend of 10 years lived together but were not married.
In another relevant case, People v. Morales (2013) 212
Cal.App.4th 583, the 2nd District Court of Appeal reversed the
rape conviction of Julio Morales and returned the case for
retrial. The defendant was charged and convicted of rape of an
unconscious person, however, the jury instructions allowed the
jury to potentially convict on the invalid basis that the
defendant was able to engage in the act because he induced the
victim to believe that he was her boyfriend. Under such
circumstances, the perpetrator is guilty of rape only where the
inducement leads the victim to believe that he or she is the
victim's spouse. Because the record failed to disclose whether
the jury relied upon a proper legal theory to convict, the
appellate court reversed the conviction and ordered the
defendant be retried.
As expressed in the 2nd District Court of Appeal's opinion, "A
man enters the dark bedroom of an unmarried woman after seeing
her boyfriend leave late at night, and has sexual intercourse
with the woman while pretending to be the boyfriend. Has the man
committed rape? Because of historical anomalies in the law and
the statutory definition of rape, the answer is no, even though,
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if the woman had been married and the man had impersonated her
husband, the answer would be yes." (People v. Morales, supra,
212 Cal.App.4th 586.)
The court urged the Legislature, "to reexamine [PC] section 261,
subdivision (a)(4) and (5), and correct the incongruity that
exists when a man may commit rape by having intercourse with a
woman when impersonating a husband, but not when impersonating a
boyfriend." (People v. Morales, supra, 212 Cal.App.4th 587,
footnote 3.)
This bill addresses an anomaly in the law by updating statutory
definitions to reflect the existence of diverse relationships in
current society and expands the scope of existing law that
narrowly defines rape and sodomy by fraud to apply only where
the perpetrator impersonates the spouse of the victim.
Proposed Law: This bill would expand the definitions of rape and
sodomy committed by fraud that are restricted to the
impersonation of a spouse to include cases where the perpetrator
induces the victim to believe that he or she is someone known to
the victim other than the perpetrator. Specifically, this bill:
Expands the definition of rape under PC � 261(a)(5) to
include the circumstance where sexual intercourse is
accomplished with a person not the spouse of the
perpetrator, under the belief that the person committing
the act is someone known to the victim other than the
accused.
Expands the definition of sodomy under PC � 286(j) to
include the circumstance where the victim submits under the
belief that the person committing the act is someone known
to the victim other than the accused.
Includes an urgency clause stating, "In order to protect
the public from the danger of rape and sodomy by those who
impersonate others, at the earliest possible time, it is
necessary that this act take effect immediately."
Related Legislation: SB 59 (Evans) 2013, an urgency measure, was
amended on June 12, 2013, to be virtually identical to this
measure as amended on May 8, 2013. This bill is pending hearing
in the Assembly Committee on Appropriations.
AB 765 (Achadjian) 2011 would have expanded the definition of
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rape by fraud to include the circumstance that occurs where a
person submits to the act of sexual intercourse under the belief
that the person committing the act is the victim's cohabitant.
This bill was held in the Senate Committee on Public Safety.
Staff Comments: By broadening the definition of specified sex
offenses committed by impersonation to extend beyond a victim's
spouse and instead apply where the victim believes the
perpetrator is someone known to the victim other than the
accused, the provisions of this bill serve to protect a larger
population of victims, potentially resulting in an increased
number of felony prosecutions and convictions than otherwise
would have occurred under existing law. Based on information
from the Department of Corrections and Rehabilitation (CDCR),
felony convictions for rape by impersonation of a spouse have
historically been few and infrequent, with only five state
prison commitments over the past decade serving a sentence with
a conviction for rape under PC � 261(a)(5), and no admissions to
state prison for sodomy by fraud over the same time period.
Arrest data from the DOJ indicates 32 arrests were charged for
these offenses from 2009 through 2012. Detailed disposition data
is unavailable at this time, but to the extent this bill leads
to an increased number of arrests resulting in felony
convictions that previously would have been denied, dismissed,
or litigated under alternate charges, this bill could result in
increased state incarceration costs of $10,275 (CDCR inmate
overcrowding rate for 2013-14) per inmate per year. The base
prison term for the specified sex offenses in this bill is a
triad of three, six, or eight years. Additionally, various
sentence enhancements of up to five years apply to recidivists
with prior convictions for the offenses specified in this bill.
Subsequent to serving the base sentence term, felony convictions
under PC � 261(a)(5) would also be subject to parole supervision
($3,000 per parolee per year) due to the classification of rape
under PC � 261 in its entirety as a 'serious' felony. Ongoing
annual costs would be dependent on the number of convictions,
frequency over time, and length of sentences served.
California's prison system continues to operate under federal
oversight as it addresses the issues of prison overcrowding and
constitutionally adequate health care in its 33 facilities. On
January 7, 2013, the state requested the court vacate or modify
its order requiring the state to reduce the inmate population.
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The three-judge panel did not issue judgment on whether to
vacate the population limit but issued an order extending the
deadline for meeting the population limit from June to December
2013. On June 20, 2013, the three-judge panel ordered the State
to immediately take all steps necessary to implement the
measures in the Amended Plan, as specified, notwithstanding any
state or local laws or regulations to the contrary, and, in any
event, to reduce the prison population to 137.5 percent of
design capacity by December 31, 2013, through the specific
measures contained in that plan, through the release of
prisoners from the Low-Risk List, or through the substitution of
prisoners due to other measures approved by the court.
While this bill independently is not likely to impact the prison
population significantly, considered collectively with all
pending legislative proposals potentially exacerbating prison
overcrowding, the effect of any future increases to the prison
population creates cost pressure of $60,000 (General Fund) per
inmate per year to the extent overall prison population growth
potentially requires additional capital outlay.