BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1335 (Maienschein) 5
As Amended January 8, 2014
Hearing date: May 13, 2014
Penal Code
JM:mc
SEX CRIMES AGAINST THE DEVELOPMENTALLY DISABLED:
LIFE TERM SENTENCES AND VULNERABLE VICTIM ENHANCEMENTS
HISTORY
Source: Author
Prior Legislation: SB 663 (Lara) - pending in the Assembly
AB 602 (Yamada) - Ch. 673, Stats. 2013
SB 1844 (Fletcher) - Ch. 219, Stats. 2010
AB 313 (Zettel) - Ch. 569, Stats. 1999
SB 241 (Boatwright) - Ch. 1086, Stats. 1985
Support: California Association of Psychiatric Technicians; The
Alliance; The Arc and United Cerebral Palsy California
Collaboration; California District Attorneys
Association
Opposition:Taxpayers for Improving Public Safety
Assembly Floor Vote: Ayes 77 - Noes 0
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KEY ISSUES
WHERE A DEFENDANT IS CONVICTED OF A FELONY FOR ENGAGING IN
SPECIFIED SEXUAL CONDUCT WITH A PERSON INCAPABLE OF CONSENTING
DUE TO A MENTAL DISORDER, DEVELOPMENTAL DISABILITY OR PHYSICAL
DISABILITY, SHOULD THE DEFENDANT BE SUBJECT TO A "ONE-STRIKE"
SENTENCE OF LIFE WITHOUT PAROLE, 15-YEARS-TO-LIFE OR
25-YEARS-TO-LIFE, WHERE ONE OR MORE AGGRAVATING FACTORS ARE
PROVED, INCLUDING THE DEFENDANT'S RECORD, THE MANNER IN WHICH
THE CRIME WAS COMMITED AND AGE OF THE VICTIM?
SHOULD SENTENCE ENHANCEMENTS FOR CRIMES AGAINST PARTICULARLY
VULNERABLE VICTIMS BE APPLIED TO CASES WHERE THE DEFENDANT WAS
CONVICTED OF A SEX CRIME BECAUSE THE VICTIM WAS INCAPABLE OF
CONSENTING TO A SEXUAL ACT DUE TO A DEVELOPMENTAL DISABILITY?
PURPOSE
The purpose of this bill is to provide that 1) sex acts that are
felonious because one of the parties was incapable of consenting
due to a mental disorder, developmental disability or physical
disability are qualifying offenses under the One Strike law,
which requires the court to impose a term of life without
parole, 25-years-to-life or 15-years-to-life, depending on the
defendant's sexual offense recidivism, the age of the victim and
the number and of kinds of aggravating factors proved by the
prosecutor or admitted by the defendant; and 2) a sex crime
committed because a developmentally disabled person is unable to
consent is subject to a vulnerable victim sentence enhancement
of one year upon a first conviction and two years for a second
or subsequent conviction.
Sex Crimes Against Persons Unable to Consent - Minors
Existing law provides that rape is an act of sexual intercourse
accomplished against the will of the victim by force, fear,
duress or threats, or where the victim engaged in the act
through the defendant's fraud, or under circumstances where the
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victim is incapable of consenting.
Existing law provides that rape is punishable by a term of 3, 6
or 8 years in prison, unless the status of the victim, the prior
record of the defendant or the circumstances of the offense
subject the defendant to a higher penalty. (Pen. Code � 264.)
Existing law provides that a minor cannot consent to a sexual
act, including sexual intercourse, oral copulation, sodomy,
sexual penetration with a foreign or unknown object, or lewd
conduct. Sexual intercourse with a minor where no aggravating
elements are proved is the crime of "unlawful sexual
intercourse," punishable as follows:
Where the person having intercourse with the minor is no
more than three years older or younger than the minor, the
offense is a misdemeanor, with a maximum jail term is 6
months.
Where the person is at least three years older than the
minor, the offense is an alternate felony-misdemeanor
(wobbler), with a maximum misdemeanor term of one year and
a felony jail term of 16 months, two years or three years.
Where the person is at least 21 and the minor under 16
years of age, the offense is a wobbler, with a felony jail
term of 2, 3 or 4 years. (Pen. Code � 261.5.)
Existing law provides that in the absence of aggravating
circumstances or elements, sodomy, oral copulation or
penetration with a foreign or unknown object with a minor is
punishable as follows:
Where the defendant is over 21 and the minor under 16
years of age, the offense is a felony, with a prison term
of 16 months, 2 years or 3 years.
In other cases, the crime is an alternate
felony-misdemeanor, with a felony prison term of 16 months,
2 years or 3 years. (Pen. Code �� 286, subd. (b), 288a,
subd. (b), 289, subd. (h).)
Existing law provides that where sodomy, oral copulation or
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penetration with a foreign or unknown object involves a minor
under the age of 14 and the perpetrator is more than 10 years
older than the minor, the offense is a felony, punishable by a
prison term of 3, 6 or 8 years. (Pen. Code �� 286, subd.
(c)(1), 288a, subd. (c)(1), 289, subd. (j).)
Sex Crimes Against Persons Unable to Consent - Persons who are
Mentally Disordered, Developmentally Disabled or Physically
Disabled
Existing law specifically provides that sexual intercourse
constitutes a form of rape "[w]here [the victim] is incapable,
because of a mental disorder, developmental disability or
physical disability, of giving legal consent, and this is known
or reasonably should be known to the" perpetrator. A person is
incapable of consenting to a sex act if the person cannot
understand the nature and possible consequences of the act.
(Pen. Code � 261, subd. (a)(1); CALCRIM<1> 1004, 1009, 1034 and
1049.)
Existing law provides that an act of sodomy, oral copulation, or
sexual penetration with a person who is unable to consent
because of a mental disorder, developmental disability or
physical disability that prevents the person from understanding
the nature and consequences of the act is a felony, punishable
by a term of 3, 6 or 8 years in prison. (Pen. Code �� 286,
subd. (g), 288a, subd. (g) and 289, subd. (b).)
One Strike Life Term Sentencing Scheme Applies Where the
Defendant is a Recidivist Sex Offender or the Crime Involves
Specified Aggravating Factors
Existing law includes a number of special sentencing schemes
applicable where a defendant has been convicted of a sex crime
and certain factors are alleged and proved. These include:
Aggravated sexual assault of a child: Victim is under 14 and
perpetrator at least 7 years older than the victim. Rape by
---------------------------
<1> CALCRIM is the acronym for California Jury Instructions,
Criminal.
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force, duress threats to retaliate; equivalent forms of oral
copulation, sodomy and non-rape sexual penetration and
commission of any of these crimes by multiple perpetrators:
15-years-to-life. (Pen. Code � 269.)
Habitual sex offender: Conviction of a sex crime by force,
duress or threats, or sexually motivated kidnapping, with
prior conviction for such a crime: 25-years-to-life. (Pen.
Code
� 667.71.)
Recidivist lewd conduct offenders: Conviction for lewd
conduct with, or continuous abuse of, a child, with a prior
sex crime conviction: 5-year-enhancement for one prior and
15-years-to-life for multiple prior convictions. (Pen. Code
667.51.)
Existing law includes the One Strike law. The One Strike scheme
applies to rape, oral copulation, sodomy, and sexual penetration
committed by force, duress or threats; lewd conduct with a child
under the age of 14 and continuous sexual abuse of a child.
Depending on the number and kinds of aggravating factors
attendant to the crime, the court must impose a term of 15 or
25-years-to-life, or life without parole for specified crimes
against minor. (Pen. Code � 667.61.)
The factors requiring imposition of a 25-years-to-life
sentence where one factor is proved include the following:
o The crime was committed during the commission of
kidnapping in which the victim was exposed to an elevated
risk of harm.
o The crime was committed during commission of a
residential burglary.
o The victim or another person was subjected to torture or
mayhem.
o The victim suffered great bodily injury.
o A victim under the age of 14 suffered bodily harm.
o The crime was committed by multiple perpetrators, one of
whom kidnapped the victim causing an elevated risk of harm,
inflicted torture or mayhem, or committed a residential
burglary.
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o The defendant was previously convicted of a qualifying
One-Strike crime. (Pen. Code
� 667.61, subd. (d).)
The factors requiring a sentence of 15-years-to-life for a
single factor and 25-years-to-life for two or more factors are
the following:
o The crime involved a non-residential burglary.
o The defendant kidnapped the victim without elevated risk
of harm.
o The defendant used a firearm or weapon.
o The crime involved multiple victims.
o Infliction of a specified kinds of injury.
o The victim was bound or tied.
o The defendant administered a controlled substance to
the victim.
o The crime was committed by multiple perpetrators, one of
whom kidnapped the victim without elevated risk, committed
a non-residential burglary, used a weapon, bound or tied
the victim, inflicted great bodily harm or administered a
controlled substance. (Pen. Code � 667.61, subd. (e).)
Existing law requires the following life terms under the
One-Strike law where the victim is a minor:
Life without the possibility of parole for an adult
perpetrator, or 25-years-to-life if the perpetrator is a
minor, if the perpetrator is convicted of a standard One
Strike qualifying offense (Pen. Code � 667.61, subd. (c)) if
the victim is under 14 years under the following
circumstances:
o One or more of the most serious aggravating factors
described in Penal Code Section 667.61, subdivision. (d)
apply; or
o The defendant inflicted "bodily harm."
o Two or more of the aggravating factors described in
Penal Code Section 667.61, subdivision (e) apply).
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o These special penalties do not apply to a lewd conduct
offense not involving force or duress. The usual
One-Strike penalties apply in such cases.
25-years-to-life for any person convicted of an eligible
offense under one of the factors set out in Penal Code section
667.6, subdivision (e) against a child under 14 years of age.
(Pen. Code � 667.61, subd. (j).)
Existing law requires the following life terms under the
One-Strike law where the victim is a minor who is at least 14
years old and the defendant is convicted of rape, sodomy or oral
copulation by force or duress, or the defendant is convicted of
rape, sodomy or oral copulation in concert (with multiple
perpetrators):
Life without the possibility of parole for an adult
perpetrator, or 25-years-to-life if the perpetrator is a
minor, under the following circumstances:
o One or more of the most serious aggravating factors
described in Penal Code Section 667.61, subdivision. (d)
apply; or
o Two or more of the aggravating factors described in
Penal Code Section 667.61, subdivision (e) apply).
25-years-to-life if any one of the factors set out in Penal
Code section 667.6, subdivision (e), apply. (Pen. Code �
667.61, subds. (l)-(m).)
Existing law provides, except where specified, that where a
defendant is convicted of multiple crimes (counts) in a single
prosecution, the court designates the count with the greatest
punishment as the "principal" term, imposes the lower, middle or
upper term for that count and then imposes sentence on each
"subordinate" term as 1/3 of the middle term. Enhancements
based on how the crime was committed are imposed in each count -
a full enhancement for the principal term and 1/3 of the
enhancement for subordinate terms according to the principal and
subordinate term formula. Recidivist enhancements are added to
the entire sentence a single time. (Pen. Code � 1170.1, subd.
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(a).)
Existing law provides that where the defendant is convicted of a
sex offense committed by force, duress, threats or use of an
intoxicating substance, the court must impose full-term
consecutive subordinate term sentences if the crimes involve
different victims or occurred on separate occasions. The court
may impose full-term consecutive terms in other circumstances.
(Pen. Code �� 667.6, subds. (c)-(d) and 1170.1.)
This bill adds specified qualifying crimes to the One Strike
life-term sentencing scheme:
The additional offenses are sex acts that are felonious
because the victim was incapable of consenting because a
developmental disability, physical disability or mental
disorder prevented the victim from understanding the nature
and consequences of the sex act.
Force or duress need not be shown.
The court must impose a sentence of life without the
possibility of parole if the disabled or mentally disordered
person is a minor where the offense involves specified
aggravating factors.
Vulnerable Victim Sentence Enhancement
Existing law directs the court to impose a sentence enhancement
of one year or two years where the defendant is convicted of a
specified crime and the defendant knew or reasonably should have
known that the victim is 65 years of age or older, blind, deaf,
developmentally disabled, a paraplegic, a quadriplegic, or under
14 years old:
The qualifying offenses are rape, sodomy, oral copulation
sexual penetration by force, duress, threat of injury or
threat of future retaliation, mayhem, kidnapping robbery or
carjacking, or residential burglary.
The enhancement is for one year if the defendant has no prior
convictions for a qualifying offense and two-years if such a
prior conviction has been established. (Pen. Code � 667.9,
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subds. (a)-(b).)
Existing law defines "developmentally disabled" for purposes of
the vulnerable victim enhancement as "a severe, chronic
disability of a person" which includes the following:
The disability is attributable to a mental or physical
impairment or a combination of mental and physical
impairments;
Likely to continue indefinitely; and
Results in substantial functional limitation in three or more
of the following areas of life activity:
o Self-care.
o Receptive and expressive language.
o Learning.
o Mobility.
o Self-direction.
o Capacity for independent living.
o Economic self-sufficiency." (Pen. Code, �
667.9, subd. (d).)
This bill provides that where a defendant is convicted of rape,
sexual penetration, sodomy or oral copulation because the person
with whom the defendant engaged in the underlying sex act was
incapable of giving legal consent due to a developmental
disability, the court shall impose an sentence enhancement for a
crime against a particularly vulnerable victim, as follows:
An additional term of one year if the defendant has no prior
convictions for a qualifying offense.
An additional term of two years if the defendant does have a
prior conviction for a qualifying offense.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these
principles, ROCA was applied as a content-neutral, provisional
measure necessary to ensure that the Legislature did not erode
progress towards reducing prison overcrowding by passing
legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
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The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
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remain unresolved. While real gains in reducing the
prison population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Individuals with disabilities are vulnerable and
victimized at a much higher rate than others. Many
disabled people are targeted for abuse because they
can't defend themselves. Further, these crimes are
difficult to prosecute, because victims often cannot
effectively communicate what has happened to them.
Across the country sexual offenders who have
victimized the disabled have faced shockingly short
prison sentences. Last year, the Connecticut Supreme
Court overturned the conviction of a man who raped a
woman with severe cerebral palsy, citing a lack of
evidence that she resisted. A Sacramento man who
raped his 14 year-old disabled, immobile stepdaughter
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was sentenced to only 11 years in prison because there
were no aggravating factors that would have increased
the sentence, such as restraining the victim. Despite
the repulsive nature of the crime, 11 years was the
maximum sentence the court could impose.
In 2012, the Center for Investigative Reporting
published a series revealing severe problems in the
investigation of sex crimes in state developmental
centers. In one example, 36 reported sexual assaults
went uninvestigated at the Sonoma Developmental Center
in Eldridge, California. These reports unfortunately
underscore a much bigger problem of sexual abuse of
our developmentally disabled population.
AB 1335 will expand the scope of penalty enhancements
in Penal Code section 667.9, allowing prosecutors to
obtain higher penalties when sex crimes are committed
against vulnerable individuals, specifically where it
is difficult or
impossible to prove force was used due to the nature
of the victim's disability. In the recent Sacramento
example, this was imperative as the victim's
disability makes her incapable of speech or movement.
Additionally, AB 1335 will expand One Strike base
crime offenses to include sex crimes involving a
victim who is incapable of giving consent due to a
disability when performed in conjunction with other
aggravating circumstances, such as kidnapping,
restraining or use of a deadly weapon.
All victims deserve equal protection under the law. I
am introducing AB 1335 to ensure that developmentally
disabled victims receive adequate justice. AB 1335
will allow for more equitable penalties for those who
commit heinous crimes against victims who do not have
the ability to protect themselves.
2. The One Strike Penalties in This Bill Apply Where a
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Victim was Mentally Disordered or Physically Disabled,
Not Only Developmentally Disabled
The author's statement emphasizes concerns about sexual
abuse of developmentally disabled persons who are incapable
of consenting to a sexual act. A person is incapable of
consenting to sex if he or she cannot understand the nature
and consequences of the act. (CALCRIM 1004) However, the
One Strike life term provisions of the bill also apply to
non-consensual sex acts with or against mentally disordered
and physically disabled persons who are unable to consent
to sex.
3. Expert or Clinical Testimony is Not Required to Prove
that a Disabled or Mentally Disordered Person Cannot
Understand the Nature and Consequences of a Sex Act
Determination of Developmental Disability and Capacity to
Consent to Sex
Developmental disability is not simply a function of a person's
I.Q. Low I.Q. is generally correlated with the more narrow
term, intellectual disability, which is typically means an IQ of
70-75 or lower. The Arc<2> Website explains:
[D]evelopmental disability ? is a broader term [than
intellectual disability and] includes ASD (autism
spectrum disorders), epilepsy, cerebral palsy,
developmental delay, fetal alcohol syndrome and other
disorders that occur during the developmental period
(birth to age 18). The major differences [between
developmental and intellectual disabilities] are in
the age of onset, the severity of
limitations, and the fact that a person with a
developmental disability? may or may not have a low
----------------------
<2> The Arc is a national organization that advocates on behalf
of the intellectually and developmentally disabled.
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I.Q. While some people with intellectual disability
will also meet the definition of developmental
disability, it is estimated that at least half do not
meet the requirements for the developmental disability
definition.<3>
As concerns criminal charges based on a victim's incapacity to
consent to sex, a prosecutor need not establish that a
developmentally disabled person has been diagnosed by an expert
to meet a clinical standard. "The question whether a person
possesses sufficient resources-intellectual, emotional, social,
psychological-to determine whether to participate in sexual
contact with another is an assessment within the ken of the
average juror, who likely has made the same determination at
some point." (People v. Thompson (2006) 142 Cal.App.4th 1426,
1435-1439, internal quotations and citation omitted.)
Appellate decisions on crimes against the developmentally
disabled have referred to I.Q. as simply part of the evidence
that can be used to establish that the alleged victim is
disabled and the additional question of whether the disability
prevented the victim from understanding the nature and
consequences of a sex act. The I.Q.s of the victims in two
representative cases were between 70 and 80 - essentially
equivalent to children between 7 and 14 years old. (Ibid;
People v. Mobley (1999) 72 Cal.App.4th 761.)
Capacity to Consent for Those with Mental Disorders or Physical
Disabilities
The standards for determining whether a mentally disordered or
physically disabled person is able to consent to a sexual act
appear to be even broader than those that apply to cases
involving developmentally disabled persons. (People v. Miranda
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<3> http://www.thearc.org/page.aspx?pid=2543
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(2011) 199 Cal.App.4th 1403 - victim had cerebral palsy<4> and
severely limited ability to communicate.) The term mental
disorder encompasses a very wide range of maladies and
conditions. In the context of dangerous mentally disordered
criminal defendants, a mental disorder is "an illness or disease
or condition that substantially impairs the person's thoughts,
perception of reality, emotional process, or judgment, or which
grossly impairs behavior." (Pen. Code � 2970.) Dictionary
definitions of a mental disorder or illness are broader yet,
including abnormal behavior or inability to function
socially.<5> Jurors in cases concerning the ability of a person
to consent to a sex act are not limited to any technical or
statutory definitions of mental disorders or physical
disability. As with
developmentally disabled persons, the mentally disordered or
physically disabled person is incapable of given consent if he
or she is "unable to understand the act, its nature, and
possible consequences" of the act. (CALCRIM<6> 1004.)
There is very little decisional law as to what constitutes
incapacity to consent because of a physical disability. (People
v. Miranda, supra, 199 Cal.App.1403, 1413.) A person with a
purely physical disability would very likely understand the
nature and consequences of a sex act. Therefore, sex crimes
against physically disabled persons are likely charged as crimes
committed by force or duress, as force or duress in the context
of sex crimes essentially means that the
crime was committed without the consent of the victim. The
prosecutor need not show that the victim was physically
overpowered, although actual use of force often occurs in such
crimes. (People v. Griffin (2004) 33 Cal.4th 1015.)
SHOULD THE ONE-STRIKE LIFE TERM PENALTIES IN THIS BILL BE
LIMITED TO PERSONS WHO ARE DEVELOPMENTALLY DISABLED?
4. One Strike Penalties for Sex Crimes Based on Proof that the
---------------------------
<4> The Mayo Clinic Website defines cerebral palsy as a fairly
broad disorder of movement, muscle tone or posture caused by an
"insult" to the developing brain, usually before birth. Persons
with cerebral palsy may have normal intellectual ability, but
many do suffer from developmental disabilities.
http://www.mayoclinic.org/diseases-conditions/cerebral-palsy/basi
cs/definition/con-20030502.
<5> http://dictionary.reference.com/browse/mental+illness.
<6> CALCRIM is the acronym for California Jury Instructions
Criminal.
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Victim was Incapable of Consenting to a Sexual Act Because of
a Mental Disorder, Developmental Disability or Physical
Disability
The One-Strike law essentially provides that where a defendant
is convicted of a specified sex crime, almost always involving
force, duress or threats, and the prosecutor proves one or more
aggravating factors, the court must impose a prison term of
15-years-to-life, 25-years-to-life, or life without parole,
depending on the age of the victim and the number and kinds of
aggravating factors. Aggravating factors include the
defendant's criminal record and the manner in which the crime
was committed - infliction of injury, different forms of
kidnapping, use of a weapon and others. The penalties are the
most severe if the victim is a minor - including a term of life
without parole in specified circumstances.
This bill provides that a sex crime based on the incapacity of
the victim to consent because a disability or mental disorder
prevented him or her from understanding the nature and
consequences of the act can be punished under the One Strike
law. The prosecutor need not prove that such an offense
involved any force, duress, coercion or threats. However, the
One Strike qualifying crimes, including crimes against minors,
involve force, duress, coercion or threats.<7> This bill thus
makes the One Strike law substantially harsher, at least as
concerns statutory elements, for crimes against disabled or
mentally disordered persons than against children.
The following example demonstrates the severity of One Strike
penalties: The One Strike sentences of 25-years-to-life and
life without parole apply to a One Strike eligible crime
committed during a residential burglary. These are the
penalties that apply to first degree murder and first degree
murder with special circumstances respectively. Many
non-consent sex crimes against developmentally disabled persons
could involve residential burglary. Burglary does not include
an element of breaking and entering. Burglary occurs where a
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<7> The major exception is lewd conduct - any sexually motivated
touching with or of a child under the age of 14.
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person enters a residence with the intent to commit theft or any
felony. Under this bill, a relative of a developmentally
disabled minor who enters the minor's residence with the intent
to engage in a non-consent sex with him or her would be subject
to a mandatory sentence of life without parole. (Pen. Code
� 667.61, subd. (l).)
SHOULD A SEX CRIME PROVED BY THE INABILITY OF A DISORDERED OR
DISABLED PERSON TO CONSENT TO SEX, WITH NO ADDITIONAL ELEMENT,
BE SUBJECT TO THE LIFE-TERM SENTENCES IN THE ONE-STRIKE LAW?
5. Background on the One Strike Law; Plea Bargaining Leverage in
One Strike Eligible Cases
The one-strike sex crime law was enacted shortly after enactment
of the Three Strikes law in 1994.<8> The Sexually Violent
Predators Act (which allows civil commitment of sex offenders
deemed too dangerous to be allowed into society upon release
from prison) was enacted in 1995.<9> The Legislature has urged
prosecutors to seek life terms in the most egregious sex crime
cases. Where a dangerous offender receives a life term, the
state would not need to seek an SVP civil commitment to protect
the public. In 2006, the Legislature codified the following
intent:
[D]istrict attorneys [should] prosecute violent sex
crimes under statutes that provide sentencing under a
"one strike," "three strikes" or habitual sex offender
statute instead of engaging in plea bargaining over
----------------------
<8> SBx1 26 (Bergeson) - (Ch. 14, Stats. 1994).
<9> AB 888 (Rogan) - (Ch. 763, Stats. 1995).
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those offenses.<10>
Many legislators, policy analysts, prosecutors and others
believed that the one-strike law would eventually limit the
necessity for the SVP law, as particularly dangerous offenders
would be committed to prison for life under one-strike, not
committed to prison for determinate terms and then evaluated for
civil commitment under the SVP Act. However, it appears that
may not be the case.
According to a February 2004 analysis by Department of Mental
Health, "602 sex offenders were admitted as one-strike inmates
during the last seven years of the [Sexually Violent Predators
Act] implementation. This number represents a fraction of the
20,750 Penal Code Section 290 registrants in prison at any one
time. This is an indicator that offenders are not being charged
with the one-strike provision as they stand trial for sex
offenses. Furthermore, there is no significant upward trend to
indicate that the one-strike law is going to cause referrals to
DMH under the SVP Act to disappear. [] District Attorneys
have informed DMH that the
one-strike component must be in the charging document. . . .
As a result, the one-strike 25-years-to-life sentence can, and
often does, become part of a plea bargain. For instance, the
[prosecutor] drops the one-strike in exchange for a guilty
plea." (Italics added for emphasis.)
Where a defendant has been charged with a sex crime, the
availability of One Strike charges could be a strong inducement
for him to plead guilty to any lesser offense to avoid the risk
of facing a life term upon conviction at trial. The prosecutor
could seek a plea bargain under such circumstances to spare a
victim the trauma of testifying in open court. However, fear of
an eventual life term could bring a defendant to accept a plea
bargain where the prosecution has a weak case.
DOES THE AVAILABILITY OF ONE STRIKE PENALTIES INCREASE THE
LEVERAGE OF PROSECUTORS IN PLEA BARGAINING IN SEX CRIME CASES,
ALLOWING A PROSECUTOR TO OBTAIN A GUILTY PLEA IN EXCHANGE FOR
---------------------------
<10> (Penal Code � 1192.7, subd. (a)(1). The Legislature has
also prohibited plea bargaining in specified sex crimes "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 substantial change
in sentence. At the time of presenting the agreement to the
court, the district attorney shall state on the record why a
sentence under one of those sections was not sought." (Penal
Code � 1192.7, subd. (a)(3).)
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DISMISSAL OF ONE STRIKE ALLEGATIONS?
6. Related Bill - SB 922 (Knight) - Makes the Sentences for Sex
Crimes Against Disabled or Mentally Disordered Persons by
Force or Duress the Same as Apply to Sex Crimes Against
Children Under the Age of 14 by Force or Duress
On April 29, 2014, this Committee heard and passed SB 922
(Knight). SB 922 provides that a sex crime against a mentally
disordered, developmentally disabled or physically disabled
person by force, duress or threats shall be punished by the same
prison sentences that apply to sex crimes accomplished by force,
duress or threats against a child under the age of 14.
Information from the author and staff research indicated that
many developmentally disabled persons -particularly those with
an intellectual disability - typically have the cognitive
development of children around the age of 7. Arguably, sex
crimes against developmentally disabled persons by force, duress
or threats should be punished in an equivalent manner to such
crimes against children under the age of 14.
A survey of published decisions in cases of sex crimes against
developmentally disabled victims indicates that many, if not
most, of the cases involved some form of force or coercion,
although the prosecution need only prove that the victim did not
understand the nature and consequences of the sex act,
establishing that the victim was incapable of consent. These
cases include
People v. Mobley, supra, 72 Cal.App.4th 761; People v. Thompson,
supra, 142 Cal.App.4th 1426 and People v. Miranda, supra, 199
Cal.App.4th 1403.
SHOULD A CRIME AGAINST DEVELOPMENTALLY DISABLED PERSON FOR WHICH
GREATLY ENHANCED PENALTIES MUST BE IMPOSED INCLUDE AN ELEMENT OF
FORCE, DURESS OR THREATS?
7. The Expanded Vulnerable Enhancements in This Bill Do Not
Apply Where the Victim is Mentally Disordered or Where a
Physically Disabled Victim is Not Deaf, Blind, Paraplegic
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or Quadriplegic
This bill also expands the reach of Penal Code Section 667.9,
which authorizes the court to impose a one-year or two-year
enhancement if the victim of a specified sex crime, mayhem,
robbery, or residential burglary is included in a list of
vulnerable victims. These vulnerable victims include those who
are deaf, blind, paraplegic, quadriplegic, developmentally
disabled, over the age of 65 or under the age of 14. The
vulnerable victim enhancement in existing law, and as expanded
by this bill, does not apply where the victim is mentally
disordered, or if a physically disabled victim is not deaf,
blind, paraplegic or quadriplegic.
Specifically, this bill authorizes a vulnerable victim
enhancement in a case where the defendant was convicted of a sex
crime because he engaged in a sex act of with a person who was
incapable of consenting to the act because he or she could not
understand the nature of a sex act or its consequences. The
expanded enhancement would usually apply if the victim was
developmentally disabled, as physically disabled persons often
are not incapable of understanding the nature and consequences
of a sex act so as to be incapable of consent.
8. Prohibitions on Multiple Punishments for a Single Act and
Use of an Element of a Crime to Impose an Enhancement
The facts of a single incident can be the basis of numerous
crime charges and enhancement allegations. Certain statutes and
court rules guide and direct the court in imposing sentence
where crimes and penalties overlap. A very basic sentencing
rule directly and specifically holds that an element of a crime
cannot be used to impose the upper term or an enhancement. This
is typically described as prohibited dual use of facts. (People
v. Scott (1994) 9 Cal.4th 331, 350 & fn. 12; Pen. Code � 1170,
subd. (b); Cal. Rules of Court, Rule 4.420(c)-(d).) For
example, the court may impose an enhancement where the victim of
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a crime suffered great bodily injury (GBI).<11> However, a GBI
enhancement cannot be imposed if great bodily injury is an
element of the underlying offense, such as in the crime of
battery causing serious injury. (People v. Parrish (1985) 170
Cal.App.3d 336, 343-344; Pen. Code, � 12022.7, subd. (e), and
Cal. Rules of Court, rule 4.420.)
As pertains to this bill, where a sex act is felonious because
one of the participants could not understand the nature and
consequences of the act due to his or her developmental
disability, the victim's disability is clearly an element of the
offense.<12> This essential element of the crime cannot be the
basis of a sentence enhancement. A prosecutor would likely
argue that the vulnerable victim enhancement can be imposed
because the definition of developmental disability in the
enhancement is much more technical and strict than the standard
of disability in the crime, such that the prosecutor would
involve aspects of disability not inherent in the underlying
crime. This issue does not arise under existing law, as a sex
crime that qualifies for a vulnerable victim enhancement would
involve force, duress or threats. Under those circumstances,
the fact that the victim was developmentally disabled would
establish that the crime was aggravated.<13>
Penal Code Section 654 - another basic sentencing statute -
provides that where a defendant's single act or indivisible
transaction violates a number of crime provisions, he or she can
---------------------------
<11> The main great bodily injury enhancement is set out in
Penal Code Section 12022.7.
<12> In contrast, the qualifying crimes for a vulnerable victim
enhancement that applies in cases where the victim is under the
age of 14 do not generally include an element that the victim
was under the age of 14. As noted above, the qualifying sex
crimes include elements of force, duress, threats or use of
intoxicating substances. The additional fact that such a crime
was committed against a child would establish aggravation.
<13> An aggravating factor supporting enhanced penalties is
something that shows the crime to be distinctly worse than the
ordinary. (People v. Rodriguez (1993) 21 Cal. App. 4th 232,
242.)
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be convicted of each of the crimes, but punished only once.
Specifically, if the defendant had only a single objective in
the act or transaction, the court can only impose punishment on
the crime that carries the greatest penalty. (Pen. Code � 654.)
Section 654 applies to enhancements unless the governing statute
includes an exception to the rule. While the applicable court
decisions are not clear, it generally appears that where all of
the aspects of the enhancement are the same as the elements<14>
of the underlying crime, multiple punishments are barred.
(People v. Ahmed (2011) 53 Cal.4th 156, 161-168.) For example,
a defendant cannot be separately punished for the crime of
kidnapping for robbery and receive a three-year enhancement for
kidnapping, unless the enhancement concerns a factor such as
harm to the victim. (People v. Douglas (1995) 39 Cal.App.4th
1385.) If this bill is enacted, a defendant would likely argue
that because an essential element of the crime - the disability
of the victim - is the sole element of the enhancement, Penal
Code Section 654 bars punishment pursuant to the vulnerable
victim enhancement. As noted above, a prosecutor would likely
argue that proof of disability for the enhancement requires
facts and aspects not included in the proof of disability for
the underlying sex crime. As such, the prosecutor would argue
that separate punishments are appropriate for the crime and the
enhancement, since the defendant must be aware, or should be
aware, of the extent of the victim's disability under the
enhancement.
However, multiple punishment issues must be decided on a
case-by-case basis. If this bill is enacted, a clear
understanding of the application of the vulnerable victim
enhancement would develop through appellate decisions.
WOULD IMPOSITION OF THE VULNERABLE VICTIM ENHANCEMENT PURSUANT
TO THIS BILL OFTEN BE PROHIBITED BY EXISTING SENTENCING RULES?
-------------------------
<14> Elements are the essential constituent parts of a crime.
Each element must be proved beyond a reasonable doubt or the
defendant must be acquitted. (In re Winship (1970) 397 U.S.
358.)
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9. Higher Penalties for Sex Crimes Against Persons With
Developmental Disabilities - Issues of Retribution and
Possible Deterrence
Recent studies have found that developmentally disabled persons
are at much higher risk of sexual abuse than the general
population. A developmentally disabled person may have the
cognitive abilities of a child and be overly trusting and easy
to manipulate. Further, because developmentally disabled
persons often have difficulty communicating, perpetrators of sex
acts against them may conclude that they can act with impunity.
The author's statement argues that perpetrators who take
advantage of developmentally disabled persons deserve harsher
punishment than those who commit crimes against victims who are
not disabled. This is described by criminologists as the "just
desserts" theory of criminal sanctions. "The central precept of
just deserts theory is that the punishment be proportionate to
the harm."<15>
The author's statement does not include a specific argument that
increased penalties would deter possible perpetrators of crimes
against the developmentally disabled. Criminologists generally
accept the general deterrence of criminal statutes - the
tendency of people to avoid doing acts that would subject them
to criminal penalties. Criminologists have, however, long been
skeptical of the value of special deterrence - deterring
commission of a particular crime through the specific penalty
for that crime.<16> Research appears to clearly establish that
certainty of punishment is a much more effective deterrent than
---------------------------
<15>
http://www.law.asu.edu/files/!NoTemplate/why%20do%20we%20punish%2
0-%20Robinson.pdf, Why do we Punish? Carlsmith, Darley and
Robinson, 2002, The Journal of Personality and Social
Psychology, p.285.
<16> http://bjc.oxfordjournals.org/content/21/2/136.extract.
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the severity of punishment.<17> The penalties in this bill
would not change the likelihood that a perpetrator would be
apprehended for sexually abusing a mentally disordered,
developmentally or physically disabled person.
10. The Need for Awareness of Risks faced by the Developmentally
Disabled and More Training for Those Who Work With This
Population
The limited research on crimes against developmentally disabled
persons indicates that improved awareness about the risks and
extent of abuse of the developmentally disabled would result in
more reporting of these crimes. Training of law enforcement
officers and prosecutors is likely necessary to increase the
number of successful prosecutions. <18>
Perhaps most important, caretakers, social worker and others who
work or live with the developmentally disabled could prevent
sexual abuse by learning how remove developmentally disabled
persons from circumstances that put them at risk. Professor
Joan Petersilia's<19> essay about the risks faced by the
developmentally disabled largely concerned the need for
awareness and training, not higher penalties:
We need to better understand the various risk factors
that are associated with victimization and criminal
offending. We specifically want to understand more
about the personal and developmental characteristics
of victims and perpetrators, the situational context
and setting in which the crime took place, and the
impact (e.g., physical, psychological) on both victims
----------------------
<17>
http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf
.
<18> Comment Nos. 10 and 11 discuss law enforcement training on
developmentally disabled victims.
<19> Ms. Petersilia wrote the essay while she was at UC Irvine.
She is now at Stanford.
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and perpetrators. We also need to know the extent to
which crimes of different types get reported; who they
get reported to; how the judicial system handles the
report; what barriers exist to effective
identification, prosecution, and sentencing of
offenders; and how those barriers can be overcome.
Finally, we need to develop and evaluate programs to
prevent victimization and assist those who are
victimized to cope with the effects of victimization.
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Victims with cognitive disabilities are truly
invisible, often being unable to advocate on their own
behalf for services and equal justice. With better
information, the issue should become more visible to
the public, policy makers, and those who can fund
training and education programs. (Petersilia, Crime
Victims with Developmental Disabilities, Criminal
Justice and Behavior, Dec. 2000, pp. 689-690.)
11. Recent and Pending Bills Concerning Law Enforcement Training
on Issues of Crimes Against the Developmentally Disabled
AB 602 (Yamada) Ch. 673, Stats. 2013, requires the Commission on
Peace Officer Standards and Training (POST) to develop and make
available a course for law enforcement officers on interactions
with residents of state mental hospitals and state developmental
centers. The bill was enacted in response to reports of serious
abuse and neglect of developmentally disabled patients in state
institutions. Many instances of serious abuse were not properly
investigated and patterns of abuse and neglect continued. SB
663 (Lara) - currently pending in the Assembly -would
effectively expand the reach of the training course statewide,
well beyond the small number of law enforcement agencies that
are likely to handle abuse and neglect investigations in state
facilities. SB 663 also considers training of law enforcement
officers for handling abuse of the developmentally disabled that
occurs in private facilities.
12. The Need for Specialized Law Enforcement Units for Cases
Involving Developmentally Disabled Victims
Research has documented that persons with developmental
disabilities are at "disproportionately high risk for violent
victimization." Unfortunately, the criminal justice system has
been the last societal institution to respond to and accommodate
the needs of people with developmental disabilities.
(Petersilia, supra, pp. 655, 680.) Specific and recurring
issues arise in the investigation of crimes in which the victims
are developmentally disabled. For example, an officer asking a
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person with Down syndrome repeated questions may simply be
trying to assemble the facts of the case as accurately as
possible. However, people with Down syndrome may perceive
repeated questioning as threatening and try to appease the
questioner to stop the questioning. This may result in
inaccurate police reports that impair the viability of a case.
As persons with developmental disabilities are at high risk for
victimization, it may be helpful for law enforcement agencies to
establish units in which officers have training and experience
in interacting with people with developmental disabilities.
These units could also handle cases involving other persons with
special needs, such as the autistic and the mentally ill. For
example, specialized officers could perform the formal
interviews with sexual assault and felony assault victims who
have developmental disabilities. Specialized officers could
also be dispatched to assist patrol officers who encounter
persons with special needs. Communication and trust problems
could be limited or eliminated before the investigation is
harmed.
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