BILL ANALYSIS �
AB 1982
Page 1
Date of Hearing: April 22, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1982 (Ting) - As Amended: April 21, 2014
SUMMARY : Modifies the crime of stalking from one requiring
specific intent on the part of the perpetrator to one of general
intent. Specifically, this bill :
1)Provides that a person who makes a credible threat and
willfully engages in a course of conduct directed at a
specific person or group of persons and knows or should have
known that the course of conduct would cause a reasonable
person to fear for his or her safety, or the safety of his or
her immediate family is guilty of the crime of stalking.
2)States that for purposes of the crime of stalking, the conduct
may include, but is not limited to, acts committed directly,
indirectly, electronically, or through third parties.
3)States that for purposes of the crime of stalking, the conduct
may also include, but is not limited to, acts committed by any
gesture, method or device, or following, monitoring,
observing, physically, or electronically surveilling,
threatening, interfering with a person's property, or identity
theft of, false personation of, or communicating to or about,
a person.
4)Includes a domesticated pet within the definition of
"immediate family" for purposes of the crime of stalking.
EXISTING LAW :
1)States that any person who willfully, maliciously, and
repeatedly follows or willfully and maliciously harasses
another person and who makes a credible threat with the intent
to place that person in reasonable fear for his or her safety,
or the safety of his or her immediate family is guilty of the
crime of stalking. (Pen. Code, � 646.9, subd. (a).)
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2)Defines "harasses" as "engages in a knowing and willful course
of conduct directed at a specific person that seriously
alarms, annoys, torments, or terrorizes the person, and that
serves no legitimate purpose." (Pen. Code, � 646.9, subd.
(e).)
3)Defines "credible threat" as "a verbal or written threat,
including that performed through the use of an electronic
communication device, or a threat implied by a pattern of
conduct or a combination of verbal, written, or electronically
communicated statements and conduct, made with the intent to
place the person that is the target of the threat in
reasonable fear for his or her safety or the safety of his or
her family, and made with the apparent ability to carry out
the threat so as to cause the person who is the target of the
threat to reasonably fear for his or her safety or the safety
of his or her family." (Pen. Code, � 646.9, subd. (g).)
4)States that constitutionally protected activity is not
included within the meaning of credible threat. (Pen. Code, �
646.9, subd. (g).)
5)States that any person who willfully threatens to commit a
crime which will result in death or great bodily injury to
another person, with the specific intent that the statement,
made verbally, in writing, or by means of an electronic
communication device, is to be taken as a threat, even if
there is no intent of actually carrying it out, which, on its
face and under the circumstances in which it is made, is so
unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and thereby
causes that person reasonably to be in sustained fear for his
or her own safety or for his or her immediate family's safety
is guilty of the crime of criminal threats. (Pen. Code, �
422, subd. (a).)
6)Provides that any person who makes a credible threat to cause
serious bodily injury, as specified, to another person with
the intent to place that other person in reasonable fear for
his or her safety, or the safety of his or her immediate
family, and who within 30 days of the threat unlawfully enters
into the residence, real property contiguous to the residence,
or workplace of the person threatened without lawful purpose
is guilty of trespass. (Pen. Code, � 601, subd. (a).)
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7)Provides that a person who loiters, prowls, or wanders upon
the private property of another, at any time, without visible
or lawful business with the owner or occupant is guilty of
disorderly conduct. (Pen. Code, � 647, subd. (h).)
8)Defines "willfully," when applied to the intent with which an
act is done, as "simply a purpose or willingness to commit the
act.? It does not require any intent to violate [the] law, or
to injure another, or to acquire any advantage." (Pen. Code,
� 7.)
9)Defines "maliciously" as "a wish to vex, annoy, or injure
another person, or an intent to do a wrongful act, established
either by proof or presumption of law." (Pen. Code, � 7.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California
adopted the nation's first anti-stalking law in 1991, but it
now needs to be updated to more effectively protect stalking
victims. In order to prosecute someone for stalking,
prosecutors must prove that the stalker had the specific
intent to place the victim in fear for their safety or the
safety of their immediate family. Without a criminal
prosecution, victims do not have the protection of a criminal
protective restraining order. This criminal stalking
threshold is much higher and harder to meet than the
requirement in many other states, which operate under a
general intent standard. General intent enables the court to
focus on a stalker's behavior, not their motives, when hearing
a stalking case or issuing a criminal restraining order. AB
1982 adopts these anti-stalking standards, which have been
implemented in over twenty states, and includes updates to
California's statute to reflect modern understandings of
stalking behavior. These reforms will dramatically improve the
recourse victims may seek to protect themselves and their
families."
2)Replacing Specific Intent with General Intent : In every
crime or public offense there must be a union, or joint
operation of act and intent, or criminal negligence. (Pen.
Code, � 20.) Generally, the intent requirement is divided
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into two categories-general and specific intent. A general
intent crime involves only the intent to commit the act which
causes the harm. A specific intent crime requires the intent
to cause the resulting harm. (People v. Davis (1995) 10
Cal.4th 463, 518-519, fn. 15.)
Under the current stalking statute, the prosecution must prove
that: "1.The defendant willfully and maliciously harassed or
willfully, maliciously, and repeatedly followed another
person; [AND]
2.The defendant made a credible threat with the intent to place
the other person in reasonable fear for (his/her) safety [or
for the safety of (his/her) immediate family]." (CALCRIM No.
1301.)
The term "willfully," when applied to the intent with which an
act is done, means "simply a purpose or willingness to commit
the act.? It does not require any intent to violate [the] law,
or to injure another, or to acquire any advantage." (Pen.
Code, � 7.) And the term "maliciously" means "a wish to vex,
annoy, or injure another person, or an intent to do a wrongful
act, established either by proof or presumption of law."
(Pen. Code, � 7.)
This bill deletes the malice requirement associated with the
proscribed conduct. This bill also deletes the requirement
that the defendant acted with specific intent to instill fear
in the victim. Instead, as to intent, the prosecution would
have to prove only that (1) the defendant willfully engaged in
a course of conduct, and (2) that the defendant knew or should
have known that this course of conduct would instill fear in a
reasonable person. Therefore, stalking becomes a general
intent crime.
A 2002 legal bulletin published by the U.S. Department of
Justice, Office for Victims of Crime, noted that while
originally most stalking statutes were specific intent crimes,
many states have revised their statutes to make stalking a
general intent crime because the subjective intent of the
defendant can be difficult to prove. However, the recommended
approach by the National Institute of Justice's Model
Antistalking Code Project is to require that the defendant
know, or reasonably should know, that the acts would cause the
victim to be placed in fear. (See Strengthening Antistalking
Statutes, Jan. 2002, at pp. 2-3,
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.) That is the approach adopted by this
bill.
3)Definition of Immediate Family : This bill seeks to include a
domesticated pet within the meaning of immediate family for
purposes of the crime of stalking.
This committee is unaware of any other statute which includes a
domesticated pet within the definition of family. (See e.g.,
Pen. Code , � 422, subd. (b) [defining the term for purposes
of criminal threats]; Fam. Code, � 6211 [defining domestic
violence]; Civ. Code, � 1708.7, subd. (a)(2) [defining the
term for purposes of civil tort of stalking]; Pen. Code, � 76,
subd. (c)(3) [defining the term for purposes of threating
public official]; Pen. Code, � 422.4, [defining the term for
purposes of inciting harm to academic researcher]. This bill
creates an inconsistency in the law.
However, according to background information provided by the
author, a 1998 joint report by the National Institute of
Justice and the Centers for Disease Control and Prevention
found that about nine percent of female victims and six
percent of male victims reported that their stalkers killed or
threatened to kill a family pet. (Stalking in America:
Findings From the National Violence Against Women Survey, p.
7, https://www.ncjrs.gov/pdffiles/169592.pdf.)
4)Ex Post Facto Issues : Ex post facto laws are prohibited by
the United States Constitution, article I, section 9, and the
California Constitution, article I, section 9. Although the
Latin phrase "ex post facto" literally encompasses any law
passed "after the fact," the constitutional prohibition on ex
post facto application of laws applies only to penal statutes
which disadvantage the offender affected by them.
The purpose of the ex post facto doctrine is to ensure fair
notice of the conduct that constitutes a crime and of the
punishment that may be imposed for a crime. (In re
Rosenkrantz (2002) 29 Cal.4th 616, 638.) Therefore, it is
"aimed at laws that 'retroactively alter the definition of
crimes or increase the punishment for criminal acts.'
[Citations.]" (California Dept. of Corrections v. Morales
(1995) 514 U.S. 499, 504.)
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In Collins v. Youngblood (1990) 497 U.S. 37, 42, the U.S.
Supreme Court interpreted the ex post facto clause to prohibit
legislation "'[1] which punishes as a crime an act previously
committed, which was innocent when done; [2] which makes more
burdensome the punishment for a crime, after its commission,
or [3] which deprives one charged with crime of any defense
available according to the law at the time when the act was
committed.'" The Collins court also supplied an abbreviated
formulation of the rule: "Legislatures may not retroactively
alter the definition of crimes or increase the punishment for
criminal acts." (Id. at p. 43.)
As noted above, this bill alters the definition of the crime of
stalking by changing it from a specific intent crime to a
general intent crime.
Stalking is a crime requiring a continuous course of conduct.
(See People v. Ibarra (2007) 156 Cal.App.4th 1174, 1198;
People v. Jantz (2006) 137 Cal.App.4th 1283, 1292-1293.)
Therefore, it may be the case that some of the conduct
"straddles" the amendments to the criminal statute. In other
words, some of the prescribed conduct could have occurred
prior to the change in the law, and other acts could have
occurred after the change in the law. A continuous course of
conduct offense cannot be completed until the last requisite
act is performed. Therefore, where an offense is of a
continuing nature, and the conduct continues after the
enactment of a statute, that statute may be applied without
violating the ex post facto prohibition. (See People v.
Chilelle (April 14, 2014, B247311) __ Cal.App.4th __
[http://www.courts.ca.gov/opinions/documents/B247311.PDF], and
cases cited therein.) However, as to stalking crimes
completed before the effective date, application of the new
law would be prohibited.
5)Argument in Support : The San Francisco District Attorney's
Office , the sponsor of this bill, states, "California has the
distinct honor of having been the first state in the nation to
implement a stalking statute back in 1991. Since then,
however, we have fallen behind states across the country that
have updated their laws in order to reflect our growing
understanding of the crime and the corresponding behavior. AB
1982 will bring our statute in line with the Model Stalking
Code developed by the National Institute of Justice. It will
change the crime from specific intent to general intent, an
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essential change that will more effectively protect enable us
to protect victims of stalking.
"Under current California stalking law, the State must prove the
stalker's intentions; that not only did they intend to stalk
their victim, but that they made a credible threat and that
they were acting with specific intent to place the victim in
fear for their safety. This bill will shift the focus from
the stalker's motives to the stalking itself. As a result,
California courts will consider whether the stalking behavior
was sufficient to put a reasonable person in fear for their
safety.
"More than half of the states across the country have a version
of the general intent requirement in their stalking laws.
It's time to update our stalking statute to ensure it reflects
our understanding of the behavior, and to adequately protect
victims."
6)Argument in Opposition : The California Attorneys for Criminal
Justice argue, "Currently, PC 646.9 clearly and concisely
states what is prohibited conduct regarding one individual
'stalking' another. AB 1982 completely obliterates the clear
and concise language of the current statute. It dramatically
expands the type of conduct (including passive conduct) that
can be characterized as criminal behavior. It greatly
increases the types of behavior that can result in significant
punishment. Finally, it expands the target of the 'stalking'
law to include 'domesticated pets.'
"AB 1982 eliminates the current requirement in PC 646.9 of
specific intent. Second, it eliminates any requirement of
malice. Third, it eliminates proof of 'harassment.' ?
"AB 1982 also includes a proposal to expand the definition of
the alleged victim's 'immediate family' to include
'domesticated pet.' Expanding the definition of one's
'immediate family' to include non-human beings is a dangerous
experiment in the eyes of CACJ?. Actual crimes against
animals are prohibited under California law. CACJ is not
unsympathetic to animal abuse. However, AB 1982's attempt to
extend the range of the term 'immediate family' to
'domesticated pets' is, in our judgment, 'a bridge too far.'
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7)Prior Legislation :
a) SB 1320 (Kuehl), Chapter 832, Statutes of 2002, revised
California's stalking statute to, among other things,
specify that constitutionally protected activities are not
included with the meaning of "credible threat."
b) SB 2184 (Royce), Chapter 1527, Statutes of 1990, enacted
California's stalking statute.
REGISTERED SUPPORT / OPPOSITION :
Support
San Francisco District Attorney's Office (Sponsor)
American Federation of State, County and Municipal Employees
American Society for the Prevention of Cruelty to Animals
California Partnership to End Domestic Violence
California Police Chiefs Association
California Crime Victims Assistance Association
California State Sheriffs' Association
Californians for Safety and Justice
Community Overcoming Relationship Abuse
Crime Victims United
La Casa De Las Madres
Peace Officers Research Association of California
Stand for Families Free of Violence
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Tax Payers for Improving Public Safety
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744