BILL ANALYSIS �
AB 1508
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Date of Hearing: April 29, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1508 (Gatto) - As Introduced: January 14, 2014
FOR VOTE ONLY
SUMMARY : Prevents the defense that a person was raised in an
overly permissive household or was raised in an affluent manner
from being used at the pre-trial phase and sentencing phase of
criminal proceedings. Specifically, this bill :
1)Provides that, when determining the punishment to be imposed
in all misdemeanor and infraction cases, or when determining
the term to be imposed when a statute specifies three possible
terms of imprisonment, the fact that a defendant did not
understand the consequences of his or her actions because he
or she was raised in an affluent or overly permissive
household shall not be considered a circumstance in mitigation
of the crime.
2)Provides that, when determining suitability for probation,
that circumstances in mitigation do not include the fact that
the defendant may not have understood the consequences of his
or her actions because he or she was raised in an affluent or
overly permissive household.
3)Provides that, as a matter of public policy, an act committed
by a person is not less criminal by reason of his or her
having been raised in an affluent or overly permissive
household, nor is it a defense to a criminal action or
juvenile adjudication that a person did not understand the
consequences of his or her actions because he or she was
raised in an affluent or overly permissive household.
EXISTING LAW :
1)Provides a jury instruction that states, "It is the general
rule that no act committed by a person while in a state of
voluntary intoxication is less criminal by reason of that
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condition?However, there is an exception to this general rule,
namely, where a [specific intent] [or] [mental state] is an
essential element of a crime. In that event, you should
consider the defendant's voluntary intoxication in deciding
whether the defendant possessed the required [specific intent]
[or] [mental state] at the time of the commission of the
alleged crime?If the evidence shows that a defendant was
intoxicated at the time of the alleged crime, you should
consider that fact in deciding whether or not [that] defendant
had the required [specific intent] [or] [mental state]. If
from all the evidence you have a reasonable doubt whether a
defendant had the required [specific intent] [or] [mental
state], you must find that defendant did not have that
[specific intent] [or] [mental state]."
2)Provides that no act committed by a person while in a state of
voluntary intoxication is less criminal by reason of his or
her having been in that condition. Evidence of voluntary
intoxication shall not be admitted to negate the capacity to
form any mental states for the crimes charged, including, but
not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused
committed the act. (Cal. Pen Code, � 29.4.)
a) Evidence of voluntary intoxication is admissible solely
on the issue of whether or not the defendant actually
formed a required specific intent, or, when charged with
murder, whether the defendant premeditated, deliberated, or
harbored express malice aforethought.
b) Voluntary intoxication includes the voluntary ingestion,
injection, or taking by any other means of any intoxicating
liquor, drug, or other substance.
3)Provides that the defense of diminished capacity is hereby
abolished. In a criminal action, as well as any juvenile court
proceeding, evidence concerning an accused person's
intoxication, trauma, mental illness, disease, or defect shall
not be admissable to show or negate capacity to form the
particular purpose, intent, motive, malice aforethought,
knowledge, or other mental state required for the commission
of the crime charged. Notwithstanding the foregoing, evidence
of diminished capacity or of a mental disorder may be
considered by the court only at the time of sentencing or
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other disposition or commitment. (Pen. Code, � 25.)
4)Provides that all persons are capable of committing crimes
except those belonging to the following classes: (Pen. Code,
� 26.)
a) Children under the age of 14, in the absence of clear
proof that at the time of committing the act charged
against them, they knew its wrongfulness;
b) Persons who are mentally incapacitated;
c) Persons who committed the act or made the omission
charged under an ignorance or mistake of fact, which
disproves any criminal intent;
d) Persons who committed the act charged without being
conscious thereof;
e) Persons who committed the act or made the omission
charged through misfortune or by accident, when it appears
that there was no evil design, intention, or culpable
negligence; or
f) Persons (unless the crime be punishable with death) who
committed the act or made the omission charged under
threats or menaces sufficient to show that they had
reasonable cause to and did believe their lives would be
endangered if they refused.
5)Provides that the following persons are liable to punishment
under the laws of this state: (Pen. Code, � 27.)
a) All persons who commit, in whole or in part, any crime
within this state;
b) All who commit any offense without this state which, if
committed within this state, would be larceny, carjacking,
robbery, or embezzlement under the laws of this state, and
bring the property stolen or embezzled, or any part of it,
or are found with it, or any part of it, within this state;
c) All who, being without this state, cause or aid, advise
or encourage, another person to commit a crime within this
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state, and are afterwards found therein; and.
d) Perjury, in violation of Section 118, is punishable also
when committed outside of California to the extent provided
in Section 118.
6)Provides that evidence of mental disease, mental defect, or
mental disorder shall not be admitted to show or negate the
capacity to form any mental state, including, but not limited
to, purpose, intent, knowledge, premeditation, deliberation,
or malice aforethought, with which the accused committed the
act. Evidence of mental disease, mental defect, or mental
disorder is admissible solely on the issue of whether or not
the accused actually formed a required specific intent,
premeditated, deliberated, or harbored malice aforethought,
when a specific intent crime is charged. As a matter of
public policy there shall be no defense of diminished
capacity, diminished responsibility, or irresistible impulse
in a criminal action or juvenile adjudication hearing.
Nothing in this section shall limit a court's discretion,
pursuant to the Evidence Code, to exclude psychiatric or
psychological evidence on whether the accused had a mental
disease, mental defect, or mental disorder at the time of the
alleged offense. (Pen. Code, � 28.)
7)Provides that in the guilt phase of a criminal action, any
expert testifying about a defendant's mental illness, mental
disorder, or mental defect shall not testify as to whether the
defendant had or did not have the required mental states,
which include, but are not limited to, purpose, intent,
knowledge, or malice aforethought, for the crimes charged. The
question as to whether the defendant had or did not have the
required mental states shall be decided by the trier of fact.
(Pen. Code, � 29.)
8)Defines "probation" as the suspension of the imposition or
execution of a sentence and the order of conditional and
revocable release in the community under the supervision of a
probation officer. As used in this code, "conditional
sentence" means the suspension of the imposition or execution
of a sentence and the order of revocable release in the
community subject to conditions established by the court
without the supervision of a probation officer. It is the
intent of the Legislature that both conditional sentence and
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probation are authorized whenever probation is authorized in
any code as a sentencing option for infractions or
misdemeanors. (Pen. Code, � 1203.)
a) If a person is convicted of a felony and is eligible for
probation, before judgment is pronounced, the court shall
immediately refer the matter to a probation officer to
investigate and report to the court, at a specified time,
upon the circumstances surrounding the crime and the prior
history and record of the person, which may be considered
either in aggravation or mitigation of the punishment.
b) The probation officer shall immediately investigate and
make a written report to the court of his or her findings
and recommendations, including his or her recommendations
as to the granting or denying of probation and the
conditions of probation, if granted.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1508 will
eliminate the affluenza defense and use as a mitigating
circumstance in sentencing. The affluenza defense claims that
a defendant who did not receive appropriate punishment for bad
behavior during childhood should not be held responsible for
their actions because they have not learned that harming
others is wrong or has consequences. AB 1508 will ensure that
a defendant will not be able to use their privileged
upbringing as a defense or to lessen the severity of their
sentence. AB 1508 will protect victims of thoughtless acts by
ensuring that accused and convicted violent criminals are not
'entitled' to weak punishment because they have been
"victimized" by their wealth or lenient upbringing."
2)Specific Intent vs. General Intent : Most criminal acts are
general intent crimes. To determine whether a crime is a
specific intent offense, the first question is whether the
statutory definition makes any express or implied reference to
a mental state. In addition, in the following situations,
evidence of voluntary intoxication, mental disease, defect or
disorder is admissible on the question of whether the
defendant formed the required mental state:
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a) When the prosecution alleges a theory of liability that
a defendant aided and abetted another individual who was
the actual perpetrator. Proof of liability of aider and
abettor requires proof of specific intent. People v.
Mendoza (1998) 18 C4th 1114, 1126.
b) When a defendant is charged with intent to commit
another crime. Attempt to commit a crime consists of two
basic elements: a specific intent to commit the crime, and
a direct by ineffectual act done toward its commission.
(Pen Code, � 21 subd. (a).)
c) When knowledge is an element of an offense. For
instance, evidence of voluntary intoxication is admissible
to show that a defendant did not know the property was
stolen. People v. Reyes (1997) 52 CA4th 975, 983.
This bill would additionally ban the admissibility of evidence
that affluence or an indulgent childhood negated the specific
intent or requisite mental state to commit a crime. This ban
would raise significant due process concerns. All defendants
have a right to defend themselves under the 6th Amendment to
the U.S. Constitution, and preventing evidence of a lack of
mental state or specific intent may be seen as
unconstitutional. As outlined below, restrictions on the use
of a voluntary intoxication defense include exceptions to
permit evidence of voluntary intoxication to show a lack of
specific intent or mental state. This bill contains no
similar exception.
3)Diminished Actuality : In California the defense of diminished
capacity has been modified to what is in effect known as
diminished actuality. Evidence of mental disease, defect, or
disorder is admissible in the prosecution of a specific intent
crime on the issue of whether the accused formed a required
specific intent, premeditated, deliberated, or harbored malice
aforethought. (Pen. Code � 28 subd. (a).) Similarly,
evidence of the defendant's voluntary intoxication is
admissible on whether the defendant formed a required
defendant formed a required specific intent or, when charged
with murder, whether or not the defendant premeditated,
deliberated, or harbored express malice aforethought. (Pen.
Code, � 22(b).) This evidence is sometimes referred to as
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evidence of diminished actuality.
4)Vagueness : This bill seeks to ban the defense of being raised
in an affluent environment or an overly permissive upbringing.
Neither affluence nor overly permissive upbringing are
sufficiently defined. Would affluence include everyone who is
not indigent? Does affluence include someone who makes
$50,000/year? $100,000/year?
Opponents also take exception to the idea that evidence of an
overly permissive environment cannot be introduced as a
defense at trial or as a factor in mitigation at sentencing.
Overly permissive upbringings can include children who were
neglected by their parents. Parents who are incarcerated,
drug addicted, or simply uncaring could raise children in an
overly permissive environment surrounded by abject poverty.
Should these factors not be considered by juries in deciding a
defendant's mental state, or judges in weighing a defendant's
culpability at sentencing?
5)Sentencing Considerations : Judges are charged with sentencing
criminal defendants. Juries generally determine the guilt of
innocence of a defendant based on the facts and circumstances
of a case. However, judges are tasked with making appropriate
sentencing determinations based on the facts brought out in
the trial, evidence from the criminal investigation, and
background that is generally compiled from the probation
department prior to a sentencing hearing. When a prison
sentence is imposed, the judge must select one of three
statutory authorized terms for each count. Courts and
practitioners often refer to these terms or time periods as
"lower," "middle," and "upper" terms. When making these
determinations, or in determining if a defendant qualifies for
probation, judges look at factors in mitigation and factors in
aggravation.
Generally, a the court replies upon their local probation
department to create a report for sentencing that details the
defendant's history, the facts and circumstances of the case,
as well as any and all legal boundaries in which the court can
act. The court also relies on the prosecution and defense to
provide additional information that the court can factor as
mitigating or aggravating circumstances.
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Probation departments commonly include information regarding
the defendant's childhood and education in making reports for
sentencing. It is unclear how this bill would impact
recommendations to the court from the probation department.
Would courts be allowed to factor the defendant's college
education, or positive upbringing in determining whether a
defendant is likely to reoffend? Courts frequently factor the
defendant's likelihood to recidivate in determining the
severity of a sentence, or whether to grant probation.
Recidivism is a fundamental risk to public safety. Many of
the factors that are looked at when determining whether or not
a defendant will recidivate include their family life,
background, and upbringing. It is unclear how this bill will
impact those decisions by tying judges' hands and not allowing
them to consider some information.
6)Ethan Couch : According to the background supplied by the
author, t he "Affluenza" defense was recently used successfully
in a Texas case where a drunken teenager named Ethan Couch
killed four good-Samaritans, including a mother and daughter,
by running them down on the side of a road as they stopped to
help a stranded motorist. Couch's defense team argued that,
because of his family's wealth and lenient child-rearing
style, the defendant never learned that his actions had
consequences. Couch was sentenced to ten years probation and
will serve no jail time, despite killing four people and
leaving another paralyzed.
7)Argument in Support : According to the California Police
Chiefs Association , "AB 1508 provides that when determining
the punishment to be imposed in all misdemeanor and infraction
cases, or when determining the term to be imposed when a
statute specifies 3 possible terms of imprisonment, the fact
that a defendant did not understand the consequences of his or
her actions because he or she was raised in an affluent or
overly permissive household shall not be considered a
circumstance in mitigation of the crime. This is a good-sense
bill and the California Police Chiefs Association is pleased
to assist you in securing its passage."
8)Argument in Opposition: According to the California Public
Defenders Association , "The proposed legislation would
preclude the 'affluenza defense' in two ways: First, by
amending PC 1170.83 to exclude affluenza as a factor in
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mitigation for sentencing; and second, to add PC 19.1 and 29.9
precluding affluenza as a defense, just as voluntary
intoxication is currently excluded. The language used to
describe the behavior is this: '[A person who has] been raised
in an affluent or overly permissive household,?[or] did not
understand the consequences of his or her actions because he
or she was raised in an affluent or overly permissive
household.
"However, the 'affluenza defense' ban would go even farther
than the current ban on the voluntary intoxication/diminished
capacity defense. Currently, under PC 29.4(b), 'Evidence of
voluntary intoxication is admissible solely on the issue of
whether or not the defendant actually formed a required
specific intent, or, when charged with murder, whether the
defendant premeditated, deliberated, or harbored express
malice aforethought.' This is the 'diminished actuality'
standard that still permits defense attorneys to explore a
defendant's mental state at the time of the crime, even if
that mental state is caused by the defendant's due process
right to a fair trial.
"The 'affluenza defense' ban does not have a similar
accommodation. The defense is precluded from presenting any
evidence of the defendant's upbringing that may have a bearing
on his state of mind at the time of the crime. In short,
there is no ' diminished actuality' standard for affluenza.
Accordingly, we believe that this wholesale ban would violate
a defendant's due process right to a fair trial.
"The legislation also proposes to prohibit any evidence of
affluenza at sentencing, which could have an even greater
impact on our clients. Compare this to the allowances made
for voluntary intoxication under PC 25(c): "Notwithstanding
the foregoing, evidence of diminished capacity or of a mental
disorder may be considered by the court only at the time of
sentencing or other disposition or commitment.
"The proposed language of PC 1170.83 and 1203(e)(b)(3)(B)
precludes the court from considering 'the fact that a
defendant did not understand ('may not have understood' is
used in proposed PC 1203) the consequences of his or her
actions because he or she was raised in an affluent or overly
permissive household.' This would eviscerate the ability of a
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defense attorney to present evidence of a defendant's
background.
"The moral indignation emanating from the recent case in Texas
in which the affluenza defense was used, was based on the fact
that the defendant's parents were very, very rich, and the
perception was that they bought their son's way out of jail.
While that is antithesis to our romanticized notion that the
criminal justice system is blind to a person's income, the
proposed legislation will hurt the poor more than the rich.
Although the media has referred to it as the 'affluenza
defense,' the proposed language also speaks of an ' overly
permissive household.' We have lots of clients where they
were forced to fend for themselves at a very young age with
little or no supervision. This was not as a result of
affluence, but rather as a result of any number of factors,
such as their parents' incarceration, drug addiction, or
abject poverty. A smart DA could shoehorn most of our
mitigation into the rubric of 'overly permissive household.'
And it may hurt most in capital cases, where a defendant's
background and family history are of paramount importance.
Although the proposed legislation doesn't address factors in
mitigation relative to capital cases, it isn't a leap to
believe that it could be applied there as well."
REGISTERED SUPPORT / OPPOSITION :
Support
California Police Chiefs Association
Crime Victims United
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
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