Existing law prohibits a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of violating specified provisions of law, including rape by force, pandering, aggravated sexual assault of a child, and others.

This bill would prohibit a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of rape, sodomy, penetration with a foreign object, or oral copulation if the victim was either unconscious or incapable of giving consent due to intoxication.

Existing law prohibits a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of violating specified provisions of law, including rape by force, pandering, aggravated sexual assault of a child, and others.

This bill would prohibit a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of rape, sodomy, penetration with a foreign object, or oral copulation if the victim was either unconscious or incapable of giving consent due to intoxication.

Existing law prohibits a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of violating specified provisions of law, including rape by force, pandering, aggravated sexual assault of a child, and others.

This bill would prohibit a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of rape, sodomy, penetration with a foreign object, or oral copulation if the victim was either unconscious or incapable of giving consent due to intoxication.

Existing law requires the Secretary of Food and Agriculture to expend up to $100,000 in any fiscal year for an exhibit or exhibits at a state-supported fair that demonstrates the process of production and use of food and fiber and to annually provide for a conference of fair judges to aid the Department of Food and Agriculture in prescribing regulations for the judging of exhibits and for the premiums paid for all classes, sections, and types of exhibits, and authorizes the secretary to expend up to $15,000 in any fiscal year for these purposes.

This bill would instead authorize rather than require the secretary to perform the above-specified functions.

CONCURRENCE IN SENATE AMENDMENTS

CSA2 Bill Id:AB 2888

Author:(Low and Dodd)

As Amended Ver:August 2, 2016

Majority vote

(vote note relevant)

(Pub. S.)

Original Committee Reference: AGRI. .

SUMMARY: Prohibits judges from granting probation when one of the following felony offenses is committed:

1. Rape, sodomy, forced oral copulation, or sexual penetration by a foreign object when the perpetrator uses an intoxicating or anesthetic substance.
2. Rape, sodomy, or forced oral copulation when the victim is unconscious.
3. Sexual penetration by a foreign object when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused.

The Senate amendments delete the Assembly version of this bill, and instead provide that the following additional crimes would be ineligible for probation:

1. Forcible sexual intercourse where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
2. Forcible sexual intercourse where the victim is at the time unconscious of the nature of the act, and this is known to the accused;
3. Sodomy where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act;
4. Sodomy where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
5. Oral copulation where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act;
6. Oral copulation where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
7. Foreign object sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
8. Foreign object sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused.

EXISTING LAW:

1. Provides that probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is convicted of violating the following crimes:
   1. Forcible sexual intercourse;
   2. In concert sexual assault;
   3. Pimping and pandering;
   4. Procuring or obtaining a minor under the age of 16 for lewd and lascivious act;
   5. Aggravated sexual assault of a child under 14;
   6. Forcible or in concert sodomy;
   7. Forcible or in concert oral copulation;
   8. Sexual intercourse or sodomy of a child 10 or younger;
   9. Forcible foreign object sexual penetration; or
   10. Making child pornography.
2. Provides that "(e)xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of" the following crimes:
   1. Rape by threat of use of public official authority;
   2. Sodomy by threat of use of public official authority;
   3. Oral copulation by threat of use of public official authority; subdivision Foreign object sexual penetration by threat of use of public official authority; or Assault with intent to commit a specified sexual offender.
3. Provides that when probation is granted under specified circumstances, "the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by the disposition."

AS PASSED BY THE ASSEMBLY, this bill made permissive the requirement that:

1. The California Department of Food and Agriculture (CDFA) expend up to $100,000 in any fiscal year for exhibits at a state-supported fair that shows the process of production and use of agricultural products in the state; and
2. CDFA arrange for a conference of fair judges to help CDFA make regulations for the judging of exhibits.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. State prisons: Potentially significant ongoing increase in state incarceration costs (General Fund) for new commitments to state prison that otherwise may have been granted probation or suspension of imposition of a felony sentence. California Department of Corrections and Rehabilitation (CDCR) data indicates nearly 100 new commitments to state prison in 2015 under the specified provisions of this measure. However, the number of individuals granted probation in lieu of a prison sentence for these offenses that may be impacted by this bill is unknown. For context, for every 5% increase in annual commitments to state prison under the specified provisions of law, annual state incarceration costs would increase by $145,000 in the first year, cumulatively increasing for overlapping sentences.
2. State parole: Potential increase in future parole supervision costs for persons released from state prison for a rape conviction pursuant to Penal Code (PC) Section 261(a)(3) or PC Section 261(a)(4). All categories of rape under existing law are considered "serious felonies" pursuant to PC Section 1192.7(c), and therefore, subject to parole supervision upon release from state prison.
3. County supervision: Unquantifiable net local agency supervision costs (Local Funds) consisting of potential cost savings for persons released onto state parole for rape convictions in lieu of probation, offset by increased costs for postrelease community supervision (PRCS) for persons that otherwise would have been granted probation.

COMMENTS: According to the author, "not all forms of sexual assault involving penetration are included in the list of offenses that would trigger a mandatory denial of probation. Current law clarifies that a defendant's use of force triggers a mandatory prison sentence. However, when a victim is unconscious or severely intoxicated, the victim is unable to resist, and the perpetrator does not have to use force. This distinction between assault accomplished through force or predatory behavior provides courts the discretion to sentence perpetrators of sexual assault against intoxicated and unconscious victims to probation, which may include little or no jail time.

"Under this interpretation of the law, a perpetrator at a college party who chooses to forcibly rape a conscious victim will go to prison. However, a different perpetrator at the same party who chooses to watch and wait for a victim to pass out from intoxication before sexually assaulting her may get probation. Whether penetration is accomplished through physical aggression [force] or predatory behavior is a distinction without a difference. Both perpetrators seek prey that are vulnerable; disadvantaged by his/her capacity to resist. Both perpetrators represent a danger to the community. Additionally, the aftermath suffered by an unconscious victim or a victim incapable of giving consent due to intoxication is not ameliorated by the absence of memory. Indeed, the fear and terror that accompanies the absence of memory of a known sexual assault should not be viewed as less serious than the fear and terror that a victim experiences during a recalled forcible sexual assault.

"AB 2888 would amend Penal Code Section 1203.065 to include to the list of offenses that are ineligible for probation, all sexual assaults felonies perpetrated against intoxicated and unconscious victims."

Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0004836

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2888

Author:(Low and Dodd)

As Amended Ver:August 2, 2016

Majority vote

(vote not relevant)

Original Committee Reference: AGRI

SUMMARY: Prohibits judges from granting probation when one of the following felony offenses is committed:

1. Rape, sodomy, forced oral copulation, or sexual penetration by a foreign object when the perpetrator uses an intoxicating or anesthetic substance.
2. Rape, sodomy, or forced oral copulation when the victim is unconscious.
3. Sexual penetration by a foreign object when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused.

The Senate amendments delete the Assembly version of this bill, and instead provide that the following additional crimes would be ineligible for probation:

1. Forcible sexual intercourse where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
2. Forcible sexual intercourse where the victim is at the time unconscious of the nature of the act, and this is known to the accused;
3. Sodomy where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act;
4. Sodomy where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
5. Oral copulation where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act;
6. Oral copulation where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
7. Foreign object sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
8. Foreign object sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused.

EXISTING LAW:

1. Provides that probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is convicted of violating the following crimes:
   1. Forcible sexual intercourse;
   2. In concert sexual assault;
   3. Pimping and pandering;
   4. Procuring or obtaining a minor under the age of 16 for lewd and lascivious act;
   5. Aggravated sexual assault of a child under 14;
   6. Forcible or in concert sodomy;
   7. Forcible or in concert oral copulation;
   8. Sexual intercourse or sodomy of a child 10 or younger;
   9. Forcible foreign object sexual penetration; or
   10. Making child pornography.
2. Provides that "(e)xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of" the following crimes:
   1. Rape by threat of use of public official authority;
   2. Sodomy by threat of use of public official authority;
   3. Oral copulation by threat of use of public official authority; subdivision Foreign object sexual penetration by threat of use of public official authority; or Assault with intent to commit a specified sexual offender.
3. Provides that when probation is granted under specified circumstances, "the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by the disposition."

AS PASSED BY THE ASSEMBLY, this bill made permissive the requirement that:

1. The California Department of Food and Agriculture (CDFA) expend up to $100,000 in any fiscal year for exhibits at a state-supported fair that shows the process of production and use of agricultural products in the state; and
2. CDFA arrange for a conference of fair judges to help CDFA make regulations for the judging of exhibits.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. State prisons: Potentially significant ongoing increase in state incarceration costs (General Fund) for new commitments to state prison that otherwise may have been granted probation or suspension of imposition of a felony sentence. CDCR data indicates nearly 100 new commitments to state prison in 2015 under the specified provisions of this measure. However, the number of individuals granted probation in lieu of a prison sentence for these offenses that may be impacted by this bill is unknown. For context, for every 5% increase in annual commitments to state prison under the specified provisions of law, annual state incarceration costs would increase by $145,000 in the first year, cumulatively increasing for overlapping sentences.
2. State parole: Potential increase in future parole supervision costs for persons released from state prison for a rape conviction pursuant to PC Section 261(a)(3) or PC Section 261(a)(4). All categories of rape under existing law are considered "serious felonies" pursuant to PC Section 1192.7(c), and therefore, subject to parole supervision upon release from state prison.
3. County supervision: Unquantifiable net local agency supervision costs (Local Funds) consisting of potential cost savings for persons released onto state parole for rape convictions in lieu of probation, offset by increased costs for postrelease community supervision (PRCS) for persons that otherwise would have been granted probation.

COMMENTS: According to the author, "not all forms of sexual assault involving penetration are included in the list of offenses that would trigger a mandatory denial of probation. Current law clarifies that a defendant's use of force triggers a mandatory prison sentence. However, when a victim is unconscious or severely intoxicated, the victim is unable to resist, and the perpetrator does not have to use force. This distinction between assault accomplished through force or predatory behavior provides courts the discretion to sentence perpetrators of sexual assault against intoxicated and unconscious victims to probation, which may include little or no jail time.

"Under this interpretation of the law, a perpetrator at a college party who chooses to forcibly rape a conscious victim will go to prison. However, a different perpetrator at the same party who chooses to watch and wait for a victim to pass out from intoxication before sexually assaulting her may get probation. Whether penetration is accomplished through physical aggression [force] or predatory behavior is a distinction without a difference. Both perpetrators seek prey that are vulnerable; disadvantaged by his/her capacity to resist. Both perpetrators represent a danger to the community. Additionally, the aftermath suffered by an unconscious victim or a victim incapable of giving consent due to intoxication is not ameliorated by the absence of memory. Indeed, the fear and terror that accompanies the absence of memory of a known sexual assault should not be viewed as less serious than the fear and terror that a victim experiences during a recalled forcible sexual assault.

"AB 2888 would amend Penal Code Section 1203.065 to include to the list of offenses that are ineligible for probation, all sexual assaults felonies perpetrated against intoxicated and unconscious victims."

This bill was substantially amended in the Senate and the Assembly-approved version provisions of this bill were deleted. This bill, as amended in the Senate and is inconsistent with Assembly actions and the provisions of this bill, have not been heard in an Assembly policy committee.

Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0004183

 THIRD READING  

Bill No: AB 2888

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 6-0, 6/28/16

AYES: Hancock, Anderson, Glazer, Leno, Monning, Stone

NO VOTE RECORDED: Liu

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

ASSEMBLY FLOOR: Not relevant

SUBJECT:

SOURCE: Santa Clara County District Attorney

DIGEST: This bill prohibits a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of rape, sodomy, penetration with a foreign object, or oral copulation if the victim was either unconscious or incapable of giving consent due to intoxication.

ANALYSIS:

Existing law:

1. Provides that probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is convicted of violating specified sex crimes. (Penal Code § 1203.065(a).)
2. Provides that except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of certain sex crimes. (Penal Code § 1203.056(b)(1).)
3. Provides that when probation is granted under this subdivision, “the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by the disposition.” (Penal Code § 1203.065(b)(2).

This bill provides that the following additional crimes would be ineligible for probation under subdivision (a) of Penal Code Section 1203.065, cited above:

1. Forcible sexual intercourse where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (PC § 261 (a)(3));
2. Forcible sexual intercourse where the victim is at the time unconscious of the nature of the act, and this is known to the accused (PC § 261 (a)(4));
3. Sodomy where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act (PC § 286 (f));
4. Sodomy where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (PC § 286 (i));
5. Oral copulation where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act (PC § 288a (f));
6. Oral copulation where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (PC § 288a (i));
7. Foreign object sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused (PC § 289 (d)); and
8. Foreign object sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (PC § 289 (e)).

Background

Current law generally authorizes judges to suspend imposition of a felony sentence and impose terms and conditions of probation. If any of those terms or conditions is violated, probation is revoked and the defendant is committed to prison. There are several crimes, particularly sex crimes, for which probation is prohibited, or for which probation is granted only if the court makes certain findings. As explained above, this bill prohibits probation as a matter of law for certain sex offenses.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• State prisons: Potentially significant ongoing increase in state incarceration costs (General Fund) for new commitments to state prison that otherwise may have been granted probation or suspension of imposition of a felony sentence. California Department of Corrections and Rehabilitation data indicates nearly 100 new commitments to state prison in 2015 under the specified provisions of this bill. However, the number of individuals granted probation in lieu of a prison sentence for these offenses that may be impacted by this bill is unknown. For context, for every five percent increase in annual commitments to state prison under the specified provisions of law, annual state incarceration costs would increase by $145,000 in the first year, cumulatively increasing for overlapping sentences.
• State parole: Potential increase in future parole supervision costs for persons released from state prison for a rape conviction pursuant to PC § 261(a)(3) or PC § 261(a)(4). All categories of rape under existing law are considered “serious felonies” pursuant to PC § 1192.7(c), and therefore, subject to parole supervision upon release from state prison.
• County supervision: Unquantifiable net local agency supervision costs (Local Funds) consisting of potential cost savings for persons released onto state parole for rape convictions in lieu of probation, offset by increased costs for postrelease community supervision for persons that otherwise would have been granted probation.

SUPPORT: (Verified 8/11/16)

Santa Clara County District Attorney (source)

Association of Orange County Deputy Sheriffs

California Police Chiefs Association

California State Sheriffs’ Association

California Statewide Law Enforcement Association

Crime Victims United of California

Fraternal Order of Police

Long Beach Police Officers Association

Sacramento County Deputy Sheriffs’ Association

OPPOSITION: (Verified 8/11/16)

American Civil Liberties Union

California Public Defenders Association

Prepared by:

8/15/16 20:22:36

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2888 (Low) - Sex crimes: mandatory prison sentence

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2888 would prohibit a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of rape, sodomy, penetration with a foreign object, or oral copulation if the victim was either unconscious or incapable of giving consent due to intoxication.

Fiscal Impact:

• State prisons: Potentially significant ongoing increase in state incarceration costs (General Fund) for new commitments to state prison that otherwise may have been granted probation or suspension of imposition of a felony sentence. CDCR data indicates nearly 100 new commitments to state prison in 2015 under the specified provisions of this measure. However, the number of individuals granted probation in lieu of a prison sentence for these offenses that may be impacted by this bill is unknown. For context, for every five percent increase in annual commitments to state prison under the specified provisions of law, annual state incarceration costs would increase by $145,000 in the first year, cumulatively increasing for overlapping sentences.
• State parole: Potential increase in future parole supervision costs for persons released from state prison for a rape conviction pursuant to PC § 261(a)(3) or PC § 261(a)(4). All categories of rape under existing law are considered “serious felonies” pursuant to PC § 1192.7(c), and therefore, subject to parole supervision upon release from state prison.
• County supervision: Unquantifiable net local agency supervision costs (Local Funds) consisting of potential cost savings for persons released onto state parole for rape convictions in lieu of probation, offset by increased costs for postrelease community supervision (PRCS) for persons that otherwise would have been granted probation.

Background:

Existing law prohibits a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of any of the following offenses:

• Forcible sexual intercourse (Penal Code (PC) § 261(a)(2), (a)(6).);
• In concert sexual assault (PC § 264.1.);
• Pimping and pandering (PC §§ 266h, 266i.);
• Procuring or obtaining a minor under the age of 16 for a lewd and lascivious act (PC § 266j);
• Aggravated sexual assault of a child under 14 (PC § 269.);
• Forcible or in concert sodomy (PC § 286 (c)(2), (c)(3), (d).);
• Forcible or in concert oral copulation (PC § 288a(c)(2),(c)(3), (d).);
• Sexual intercourse or sodomy of a child 10 or younger (PC § 288.7.);
• Forcible foreign object sexual penetration (PC § 289(a).); or
• Making child pornography (PC § 311.4 (b).).

(PC § 1203.065 (a).)

Existing law provides that except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of the following offenses:

• Rape by threat of use of public official authority (PC § 261 (a)(7).);
• Sodomy by threat of use of public official authority (PC § 286 (k).);
• Oral copulation by threat of use of public official authority (PC § 288a (k).);
• Foreign object sexual penetration by threat of use of public official authority (PC § 289 (g).); or
• Assault with intent to commit a specified sexual offense (PC § 220.).

(PC § 1203.065 (b)(1).)

Under existing law, if probation is granted under the aforementioned unusual cases, the court is required to specify on the record and enter on the minutes the circumstances indicating that the interests of justice would best be served by the disposition. (PC § 1203.065 (b)(2).)

This bill appears to have been prompted in response to the recent case involving a Stanford University student convicted on three felony counts of sexual assault of an intoxicated and unconscious woman. In this case, the defendant was sentenced to six months in county jail and three years’ probation. This bill seeks to remove judicial discretion and prohibit the granting of probation or suspending execution of a sentence for felony convictions for specified sexual offenses.

Proposed Law:

This bill would prohibit the court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of any of the following sex offenses:

• Forcible sexual intercourse where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (PC § 261 (a)(3).);
• Forcible sexual intercourse where the victim is at the time unconscious of the nature of the act, and this is known to the accused (PC § 261 (a)(4).);
• Sodomy where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act (PC § 286 (f).);
• Sodomy where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (PC § 286 (i).);
• Oral copulation where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act (PC § 288a (f).);
• Oral copulation where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (PC § 288a (i).);
• Foreign object sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused (PC § 289 (d).);
• Foreign object sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (PC § 289 (e).).

Related Legislation:

AB 701 (C. Garcia) 2016 would legislatively declare that all forms of nonconsensual sexual assault may be considered rape for purposes of the gravity of the offense and the support of survivors. This bill is pending a vote on the Senate Floor.

Staff Comments:

By prohibiting a court from granting probation or suspending the execution or imposition of a sentence, this bill could result in significant ongoing costs for new commitments to state prison, as well as increased state parole supervision costs for specified cases.

Data from the CDCR indicates nearly 100 new commitments to state prison in 2015 for the offenses specified in this measure. Based on historical prison releases for these specified sex offenses, the average length of stay in state prison is slightly greater than 30 months. Although the number of new commitments entering state prison each year for the specified offenses is known, the annual number of defendants convicted of the specified sex offenses who have been granted probation or suspension of the execution of their sentences is unknown. As a result, the number of potential new commitments to state prison is also unknown. To the extent the number of commitments to state prison increases by five percent, or five defendants per year, annual costs could increase by $145,000 in the first year, cumulatively increasing each year for overlapping sentences.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 2888 Hearing Date: June 28, 2016

Subject: Sex Crimes: Mandatory Prison Sentence

HISTORY

Source: Santa Clara County District Attorney

Prior Legislation: None

Support: Crime Victims United of California

Opposition: American Civil Liberties Union; California Public Defenders Association

Assembly Floor Vote: Not Applicable

PURPOSE

The purpose of this bill is to prohibit probation in certain felony sex crimes.

Current law provides that probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is convicted of violating the following crimes:

• Forcible sexual intercourse (Penal Code § 261(a)(2) or (6);
• In concert sexual assault (Penal Code § 264.1);
• Pimping and pandering (Penal Code §§ 266h and 266i);
• Procuring or obtaining a minor under the age of 16 for lewd and lascivious act (Penal Code § 266j)
• Aggravated sexual assault of a child under 14 (Penal Code § 269)
• Forcible or in concert sodomy( Penal Code § 286(c)(2), (3) or (d));
• Forcible or in concert oral copulation (Penal Code § 288a(c)(2),(3) or (d));
• Sexual intercourse or sodomy of a child 10 or younger (Penal Code § 288.7);
• Forcible foreign object sexual penetration (Penal Code § 289(a)); or
• Making child pornography (Penal Code § 311.4 (b)).

(Penal Code § 1203.065(a).)

Current law provides that “(e)xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of” the following crimes:

• Rape by threat of use of public official authority (Penal Code § 261 (a)(7));
• Sodomy by threat of use of public official authority (Penal Code § 286(k));
• Oral copulation by threat of use of public official authority (Penal Code § 28a(k)); subdivision Foreign object sexual penetration by threat of use of public official authority (Penal Code § 289(g)); or
• Assault with intent to commit a specified sexual offender (Penal Code § 220).

(Penal Code § 1203.056(b)(1).)

Current law provides that when probation is granted under this subdivision, “the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by the disposition.) (Penal Code § 1203.065(b)(2).

This bill would provide that the following additional crimes would be ineligible for probation under subdivision (a) of Penal Code section 1203.065, cited above:

• Forcible sexual intercourse where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (Penal Code § 261(a)(3));
• Forcible sexual intercourse where the victim is at the time unconscious of the nature of the act, and this is known to the accused (Penal Code § 261(a)(3));
• Sodomy where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act (Penal Code § 286(f));
• Sodomy where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (Penal Code § 286(i));
• Oral copulation where the victim is at the time unconscious of the nature of the act and this is known to the person committing the act (Penal Code § 288a(f));
• Oral copulation where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (Penal Code § 288a(i));
• Foreign object sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (Penal Code § 289(e)); or
• Foreign object sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused (Penal Code § 289(f).)

This bill would make additional technical revisions to this section, as specified.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 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.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Stated Need for This Bill

The author states:

In March 2015, a Stanford University student was convicted on 3 felony counts of sexual assault of an intoxicated and unconscious woman. Despite the fact that the defendant was eligible for a sentence of up to 14 years in prison, the trial judge sentenced the defendant to 6 months in jail and 3 years’ probation. The sentence has been justifiably criticized by many as unethically lenient, given the horrific nature of the crime. However, while the judge’s decision has been viewed as morally wrong and inappropriate, such a decision was within the judge’s legal discretion, and therefore complied with the rules of court.

Each year, nearly 300,000 people are sexually assaulted in the United States. Unfortunately, many of these assaults involve individuals who are under the influence of alcohol or other substances. Women in college are 3 times more likely to experience sexual violence than women not enrolled, and at least 50% of sexual assaults involve alcohol intoxication. Studies have shown more than 55% of those assaulted consumed alcohol at the time of the assault, and more than 75% of those perpetrating the assault also consumed alcohol.

The majority of felony sexual assault crimes fall into two sentencing categories: “Presumptive Ineligibility of Probation” [PIP] or “Mandatory Denial of Probation” [MDP]. If a crime triggers a PIP situation, the court may grant probation if it finds and notes on the record an unusual circumstance, out of those listed under Judicial Rule 4.413.

However, not all forms of sexual assault involving penetration are included in the list of offenses that would trigger a mandatory denial of probation. Current law clarifies that a defendant’s use of force triggers a mandatory prison sentence. However, when a victim is unconscious or severely intoxicated, the victim is unable to resist, and the perpetrator does not have to use force. This distinction between assault accomplished through force or predatory behavior provides courts the discretion to sentence perpetrators of sexual assault against intoxicated and unconscious victims to probation, which may include little or no jail time.

Under this interpretation of the law, a perpetrator at a college party who chooses to forcibly rape a conscious victim will go to prison. However, a different perpetrator at the same party who chooses to watch and wait for a victim to pass out from intoxication before sexually assaulting her may get probation. Whether penetration is accomplished through physical aggression [force] or predatory behavior is a distinction without a difference. Both perpetrators seek prey that are vulnerable; disadvantaged by his/her capacity to resist. Both perpetrators represent a danger to the community. Additionally, the aftermath suffered by an unconscious victim or a victim incapable of giving consent due to intoxication is not ameliorated by the absence of memory. Indeed, the fear and terror that accompanies the absence of memory of a known sexual assault should not be viewed as less serious than the fear and terror that a victim experiences during a recalled forcible sexual assault.

AB 2888 would amend Penal Code § 1203.065 to include to the list of offenses that are ineligible for probation, all sexual assaults felonies perpetrated against intoxicated and unconscious victims.

2. Recent Gut and Amend

Until June 16^th and as passed out of the Assembly, this bill pertained to the Department of Food and Agriculture, concerning the expenditure of $100,000 “for any exhibit or exhibits located on any state-supported fair demonstrating, in a creative and innovative manner, the process of production and use of food and fiber from the producer to the consumer in this state,” and the annual provision of a “conference of fair judges” to help the department with regulations, as specified.

On June 16^th, the bill was amended to the general subject matter of the bill now before the Committee.

The bill before the Committee was amended on June 21^st.

3. What This Bill Would Do; Policy Considerations

As explained in detail above, this bill would prohibit probation for certain sex offenses. Under current law, the crimes affected by this bill are prison felonies. Current law generally authorizes judges to suspend imposition of a felony sentence and impose terms and conditions of probation. If any of those terms or conditions is violated, probation is revoked and the defendant is committed to prison. There are several crimes, particularly sex crimes, for which probation is prohibited, or for which probation is granted only if the court makes certain findings. These provisions are not set forth in one section, although one of them is the section this bill would amend.

Members and the authors may wish to discuss whether prohibiting probation as a matter of law in crimes targeted by this bill – where, for example, a victim may not have witnessed the crime because they were unconscious – could make it more difficult for prosecutors to obtain convictions in cases that might be difficult to prevail in at trial. In other words, members may wish to consider whether a statutory prohibition could result in justice not being done in some cases – for example, charges having to be dropped in order to be able to reach a plea, or a defendant being acquitted at trial.

WOULD THIS BILL LIMIT THE ABILITY OF PROSECUTORS TO NEGOTIATE PLEAS IN DIFFICULT CASES?

WOULD THIS BILL RESULT IN PLEAS THAT DO NOT FULLY REFLECT WHAT HAPPENED TO A VICTIM?

WOULD THIS BILL PROMOTE THE INTERESTS OF JUSTICE?

Members also may wish to discuss whether there would be no conceivable set of facts and circumstances where in a felony conviction for the crimes targeted by this bill the suspension of the execution of judgment and the imposition of terms and conditions of probation could be appropriate.

IS THERE NO CONCEIVABLE SET OF FACTS AND CIRCUMSTANCES WHERE JUDICIAL DISCRETION IN THESE CASES WOULD BE APPROPRIATE?

As noted above, current law provides what is essentially a presumption against the granting of probation in certain cases unless the court makes certain findings. That mechanism is in subdivision (b) of the section this bill would amend. Members may wish to consider whether this approach, notwithstanding the application of this subdivision in any particular case, would better address the broader concerns of policymakers without risking the inadvertent consequences described above.

SHOULD THIS BILL BE AMENDED TO PROVIDE THAT THESE CRIMES CAN ONLY BE GRANTED PROBATION IN “UNUSUAL CASES WHERE THE INTERESTS OF JUSTICE WOULD BE BEST SERVED IF THE PERSON IS GRANTED PROBATION”?

4. Drafting Error?

As noted by the author, in the Stanford swimmer case the defendant was convicted of three felonies: assault with intent to commit a felony, foreign object rape (victim intoxicated) and foreign object rape (victim unconscious).

This bill adds several crimes to the list of offenses for which probation is prohibited. It does not add the crime of foreign object rape where the victim is unconscious (Penal Code § 289(d).) It is assumed that this is a drafting error the authors would intend to correct in Committee.

5. Support

The Crime Victims United of California supports this bill, stating in part:

CVUC was dismayed earlier this year when a Stanford University student was convicted on three felony counts of sexual assault of an intoxicated and unconscious woman, but only sentenced to six months in jail and probation for three years. This deplorable act was eligible – and deserving – of a sentence of up to 14 years in prison; however, the trial judge ultimately imposed the less onerous sentence.

While the sentence was indeed within the legal discretion of the judge, CVUC strongly believes it was an unethical blow to justice for the victim. In California each year we stand in support of victims of sexual assault and vow to eliminate such activity through occasions like Denim Day. If we intend to hold true, we must hold these offenders accountable with sentences that match the severity of the crime and help bring a sense of true justice to victims.

6. Opposition

The American Civil Liberties Union opposes this bill, stating in part:

AB 2888 appears to be a hastily-drafted response to the Stanford rape case. Public outrage over the sentence imposed in a single case should not result in the Legislature rushing to reduce courts’ discretion across the board. The impact of limiting judicial discretion in this fashion will fall primarily on minorities and the economically disadvantaged, who are much more likely to be charged with crimes than the type of defendant involved in the Stanford case.

-- END –

Date of Hearing: April 27, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2888

Author:(Committee on Agriculture) – As Introduced Ver:February 29, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill makes permissive the requirement that:

1. The California Department of Food and Agriculture (CDFA) expend up to $100,000 in any fiscal year for exhibits at a state-supported fair that shows the process of production and use of agricultural products in the state; and
2. CDFA arrange for a conference of fair judges to help CDFA make regulations for the judging of exhibits.

FISCAL EFFECT:

No additional state costs because this bill permits CDFA to fund programs that are already not being funded.

COMMENTS:

Purpose and background. According to the author, AB 2888 will alleviate concerns on unfulfilled statutory mandates. Existing law requires CDFA to expend up on $100,000 in any fiscal year for fair exhibits that demonstrate the production and use of food and fiber from producer to consumer in California. However, CDFA has not spent any money for these purposes since 2011-12 as a result of staff reductions and the elimination of GF support for CDFA’s Fairs and Expositions Branch in 2011.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: April 13, 2016

ASSEMBLY COMMITTEE ON AGRICULTURE

Bill Dodd, Chair

ABPCA Bill Id:AB 2888 (

Author:Committee on Agriculture) – As Introduced Ver:February 29, 2016

SUBJECT: State-supported fairs: food and fiber exhibits.

SUMMARY: This bill will make permissive requirements that the California Department of Food and Agriculture (CDFA) expend up to $100,000 in any fiscal year for exhibits at a state-supported fair that shows the process of production and use of agricultural products in the state and annually arrange for a conference of fair judges to help CDFA make regulations for the judging of exhibits.

EXISTING LAW:

1. Requires CDFA to expend up to $100,000 in any fiscal year for exhibits at a state-supported fair that demonstrate the process of production and use of food and fiber from the producer to the consumer in the state.
2. Requires CDFA to annually provide for a conference of fair judges to aid CDFA in prescribing regulations for the judging of exhibits and for the premiums paid for all classes, sections, and types of exhibits, and authorizes the Secretary of CDFA to expend up to $15,000 in any fiscal year for these purposes.

FISCAL EFFECT: Unknown.

COMMENTS: CDFA’s Fairs and Expositions Branch, charged with the oversight of the network of California fairs, has had drastic reductions in funding and staff since the elimination of General Fund (GF) support in 2011. As GF contributions to California fairs were eliminated, CDFA has not expended funds on food and fiber related exhibits or an annual conference for fair judges since fiscal year 2011-2012. Provisions of the Food and Agriculture Code still reflect that CDFA shall expend these funds for the specified purposes. AB 2888 would make these payments permissive and contingent on new funding alleviating concerns of unfulfilled statutory mandates.

RELATED LEGISLATION:

AB 315 (Bigelow), Chapter 512, Statutes of 2015, would have repealed several requirements for fairs including: an annual report to CDFA related to free pass admissions by fairs; CDFA expenditures on exhibits, as specified; and, an annual conference related to judging exhibits. This bill was passed out of the Assembly on a 77-0 vote, but was substantially amended in the Senate and was removed from the Agriculture Committee's jurisdiction.

AB 2490 (Eggman), Chapter 342, Statutes of 2014, modified District Agricultural Association's (DAAs) requirements for activities needing prior approval by CDFA and/or the Department of General Services; recast language expanding duties; and, made technical conforming changes.

AB 1647 (Bigelow) of 2014 would have repealed several requirements for fairs including: an annual report to CDFA related to free pass admissions by fairs; CDFA expenditures on exhibits, as specified; and, an annual conference related to judging exhibits. This bill was passed out of the Assembly on a 78-0 vote, but was substantially amended in the Senate and was removed from the Agriculture Committee's jurisdiction.

SB 741 (Cannella) of 2013 would have made several substantive and clarifying changes to current law related to the operation, oversight, and funding of the network of California fairs, and contained an urgency clause. This bill was held in the Assembly Appropriations Committee.

AB 2345 (Ma) of 2012 would have established the California Fair Network Commission as a nonprofit mutual-benefit corporation to assess fees for services, managed funds, and provided administration and oversight of California’s fairs. This bill was held in the Assembly Appropriations Committee.

SB 1085 (Runner), Chapter 320, Statutes of 2010, allows the 50th DAA, with the consent of the Secretary of CDFA, to enter into a joint powers agreement with a nonprofit organization to operate, maintain, and improve the 50th DAA.

REGISTERED SUPPORT / OPPOSITION:

Support

Western Fairs Association

Opposition

None of file.

Analysis Prepared by: Victor Francovich / AGRI. / (916) 319-2084