AB 962: Sex offenses: disabled victims.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-02-26
(1)Existing law, as amended by Proposition 83, the Sexual Predator Punishment and Control Act (Jessicas Law), approved by the voters at the November 7, 2006, statewide general election, makes a defendant punisable by imprisonment in the state prison for 25 years to life if convicted of certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, among other things, in the commission of that offense, any person kidnapped the victim, tortured the victim, or committed the offense during the commission of a burglary, as specified. Existing law also makes a defendant punishable by imprisonment in the state prison for 15 years to life if convicted of certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, among other things, in the commission of that offense any person, except as specified in the provisions above, kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense. Proposition 83 provides that the Legislature may amend the provisions of the act to expand the scope of their application or increase the punishment or penalties by a statute passed by a majority vote of each house of the Legislature.
This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions, if the victim is developmentally disabled, as defined. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(2)Existing law makes a defendant punishable by imprisonment in the state prison for 25 years to life if convicted of certain crimes, including rape, spousal rape or sexual penetration in concert, sexual penetration, sodomy, or oral copulation if certain circumstances were present, including, among other things, in the commission of that offense any person kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense, or under other specified circumstances, and the crime was committed against a minor 14 years of age or older.
This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions, if the victim is developmentally disabled, as defined. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(3)Existing law requires that a person who commits certain enumerated crimes, including rape, sodomy, oral copulation, and sexual penetration, against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under 14 years of age, receive a one-year sentence enhancement and requires that any person having a prior conviction for any of the enumerated offenses receive a 2-year sentence enhancement.
This bill would add to the enumerated list of crimes rape, sodomy, oral copulation, and sexual penetration, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(4)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
(a)Except as provided in subdivision (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life.
(b)Except as provided in subdivision (a), (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.
(c)This section shall apply to any of the following offenses:
(1)Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.
(2)Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Section 262.
(3)Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.
(4)Lewd or lascivious act, in violation of subdivision (b) of Section 288.
(5)Sexual penetration, in violation of subdivision (a) of Section 289.
(6)Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286.
(7)Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.
(8)Lewd or lascivious act, in violation of subdivision (a) of Section 288.
(9)Continuous sexual abuse of a child, child in violation of Section 288.5.
(10)Rape in violation of paragraph (1) of subdivision (a) of Section 261, if the victim was developmentally disabled, as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(11)Sexual penetration, in violation of subdivision (b) of Section 289, if the victim was developmentally disabled, as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(12)Sodomy, in violation of subdivision (g) of Section 286, if the victim was developmentally disabled, as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(13)Oral copulation, in violation of subdivision (g) of Section 288a, if the victim was developmentally disabled, as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(d)The following circumstances shall apply to the offenses specified in subdivision (c):
(1)The defendant has been previously convicted of an offense specified in subdivision (c), including an offense committed in another jurisdiction that includes all of the elements of an offense specified in subdivision (c).
(2)The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).
(3)The defendant inflicted aggravated mayhem or torture on the victim or another person in the commission of the present offense in violation of Section 205 or 206.
(4)The defendant committed the present offense during the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, with intent to commit an offense specified in subdivision (c).
(5)The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 288a, and, in the commission of that offense, any person committed any act described in paragraph (2), (3), or (4) of this subdivision.
(6)The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.
(7)The defendant personally inflicted bodily harm on the victim who was under 14 years of age.
(e)The following circumstances shall apply to the offenses specified in subdivision (c):
(1)Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.
(2)Except as provided in paragraph (4) of subdivision (d), the defendant committed the present offense during the commission of a burglary in violation of Section 459.
(3)The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.53.
(4)The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.
(5)The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.
(6)The defendant administered a controlled substance to the victim in the commission of the present offense in violation of Section 12022.75.
(7)The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 288a, and, in the commission of that offense, any person committed any act described in paragraph (1), (2), (3), (5), or (6) of this subdivision or paragraph (6) of subdivision (d).
(f)If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a), (b), (j), (l), or (m) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a), (b), (j), (l), or (m) whichever is greater, rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or the punishment under another provision of law can be imposed in addition to the punishment provided by this section. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), (j), or (l) and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other provision of law.
(g)Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section.
(h)Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section.
(i)For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), or in paragraphs (1) to (6), inclusive, of subdivision (n), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions, as defined in subdivision (d) of Section 667.6.
(j)(1)Any person who is convicted of an offense specified in subdivision (c), with the exception of a violation of subdivision (a) of Section 288, upon a victim who is a child under 14 years of age under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), shall be punished by imprisonment in the state prison for life without the possibility of parole. Where the person was under 18 years of age at the time of the offense, the person shall be punished by imprisonment in the state prison for 25 years to life.
(2)Any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life.
(k)As used in this section, bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit an offense specified in subdivision (c).
(l)Any person who is convicted of an offense specified in subdivision (n) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), upon a victim who is a minor 14 years of age or older shall be punished by imprisonment in the state prison for life without the possibility of parole. If the person who was convicted was under 18 years of age at the time of the offense, he or she shall be punished by imprisonment in the state prison for 25 years to life.
(m)Any person who is convicted of an offense specified in subdivision (n) under one of the circumstances specified in subdivision (e) against a minor 14 years of age or older shall be punished by imprisonment in the state prison for 25 years to life.
(n)Subdivisions (l) and (m) shall apply to any of the following offenses:
(1)Rape, in violation of paragraph (2) of subdivision (a) of Section 261.
(2)Spousal rape, in violation of paragraph (1) of subdivision (a) of Section 262.
(3)Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.
(4)Sexual penetration, in violation of paragraph (1) of subdivision (a) of Section 289.
(5)Sodomy, in violation of paragraph (2) of subdivision (c) of Section 286, or in violation of subdivision (d) of Section 286.
(6)Oral copulation, in violation of paragraph (2) of subdivision (c) of Section 288a, or in violation of subdivision (d) of Section 288a.
(7)Rape in violation of paragraph (1) of subdivision (a) of Section 261, if the victim was developmentally disabled, as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(8)Sexual penetration, in violation of subdivision (b) of Section 289, if the victim was developmentally disabled, as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(9)Sodomy, in violation of subdivision (g) of Section 286, if the victim was developmentally disabled, as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(10)Oral copulation, in violation of subdivision (g) of Section 288a, if the victim was developmentally disabled, as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(o)The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact.
SEC. 2.Section 667.9 of the Penal Code is amended to read:667.9.(a)Any person who commits one or more of the crimes specified in subdivision (c) against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under the age of 14 years, and that disability or condition is known or reasonably should be known to the person committing the crime, shall receive a one-year enhancement for each violation.
(b)Any person who commits a violation of subdivision (a) and who has a prior conviction for any of the offenses specified in subdivision (c), shall receive a two-year enhancement for each violation in addition to the sentence provided under Section 667.
(c)Subdivisions (a) and (b) apply to the following crimes:
(1)Mayhem, in violation of Section 203 or 205.
(2)Kidnapping, in violation of Section 207, 209, or 209.5.
(3)Robbery, in violation of Section 211.
(4)Carjacking, in violation of Section 215.
(5)Rape, in violation of paragraph (2) (1), (2), or (6) of subdivision (a) of Section 261.
(6)Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Section 262.
(7)Rape, spousal rape, or sexual penetration in concert, in violation of Section 264.1.
(8)Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), (d) or (g), of Section 286.
(9)Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), (d) or (g), of Section 288a.
(10)Sexual penetration, in violation of subdivision (a) or (b) of Section 289.
(11)Burglary of the first degree, as defined in Section 460, in violation of Section 459.
(d)As used in this section, developmentally disabled means a severe, chronic disability of a person, which is all of the following:
(1)Attributable to a mental or physical impairment or a combination of mental and physical impairments.
(2)Likely to continue indefinitely.
(3)Results in substantial functional limitation in three or more of the following areas of life activity:
(A)Self-care.
(B)Receptive and expressive language.
(C)Learning.
(D)Mobility.
(E)Self-direction.
(F)Capacity for independent living.
(G)Economic self-sufficiency.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
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Date
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Status
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| Feb 26, 2015 | Read first time. To print. |
| Feb 27, 2015 | From printer. May be heard in committee March 29. |
| Mar 16, 2015 | Referred to Com. on PUB. S. |
| Apr 15, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (April 14). Re-referred to Com. on APPR. |
| Apr 22, 2015 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| May 28, 2015 | In committee: Held under submission. |
| Jan 31, 2016 | Died pursuant to Article IV, Sec. 10(c) of the Constitution. |
| Feb 1, 2016 | From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. |
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Date
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Description
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Location
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Votes
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| Apr 14, 2015 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
AB 962
Page 3
Date of Hearing: April 22, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB 962
(Maienschein) – As Introduced February 26, 2015
Policy Committee: |
Public Safety |
Vote: |
7 - 0 |
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Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill adds the crimes of rape, sexual penetration, sodomy, and oral copulation committed against a person who is incapable of giving legal consent due to a mental disorder or developmental or physical disability to the list of offenses which qualify for (a) application of the "One Strike Sex Law," and (b) vulnerable-victim enhancement.
FISCAL EFFECT:
According to the California Department of Corrections (CDCR), the contracted out-of-state bed rate is $29,000. Approximately 30 individuals are admitted under the targeted sex crimes annually. If 10 percent were targeted for the specified victims, the additional costs to CDCR for the enhancements would be $87,000 (GF) the first additional year, $174,000 (GF) the second year, etc. for each additional year added to the original sentence.
COMMENTS:
Background. The One Strike Sex Crime Law is a separate sentencing scheme which was enacted to provide life sentences for certain aggravated sex offenders, even if they do not have prior convictions. Under this scheme, a first-time offender who commits a qualifying sex offense under one or more of the circumstances listed in the statute is subject to a mandatory sentence of 15 years to life or 25 years to life. The facts that bring a defendant within the provisions of the One Strike Law are grouped into two categories. If a defendant commits a qualifying crime under one circumstance listed, then he or she will receive a sentence of 15 years to life. If a defendant commits a qualifying crime under one or more circumstances listed under a second category, or two or more circumstances listed under the first category, then he or she will receive a sentence of 25 years to life. The distinction is that the aggravating circumstances listed in the second category are more severe than those listed in first category.
Current law provides various sentencing enhancements if a person commits specific sex crimes against a victim who is incapable of giving legal consent due to a mental disorder or developmental or physical disability, or meets specific age criteria.
Purpose. According to the author, "Under AB 962, the scope of existing penalty enhancements [in current law] will be expanded, thus 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 California example, this was imperative as the victim's disability makes her incapable of speech or movement."
"Additionally, AB 962 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. AB 962 will allow for more equitable punishment for those who commit heinous crimes against victims who do not have the ability to protect themselves."
This bill adds crimes to the list of offenses which can be prosecuted under the One Strike Law. The additional aggravating circumstances must still be pled and proven to a jury.
Argument in Support: According to the Arc and United Cerebral Palsy California Collaboration, "Sexual assault of people with developmental disabilities can legitimately be called an epidemic. Your bill will increase penalties for the relatively few persons who the criminal justice system is able to convict of this vile crime, keeping them in prison and preventing their predation of non-incarcerated persons [with] developmental disabilities for longer periods of time."
Argument in Opposition: The California Public Defenders Association writes, "This legislation is not needed and is redundant because someone who in the course of committing a sexual assault kidnaps the victim, commits a burglary, uses a weapon, inflicts great bodily injury, or ties the victim up or has a prior sexual assault is already subject to the enhanced punishment provisions, 15 or 25 years to life, of Penal Code Section 667.61. What this legislation does is add merely the status of the disability of the victim."
Related Legislation:
AB 1272 (Grove) authorizes a judicial officer to issue an ex parte emergency protective order when an officer has reason to believe that a developmentally-disabled person is in immediate danger of sexual exploitation by a developmental disability residential service provider. AB 1272 is pending in Assembly Judiciary.
SB 164 (Beall) provides that where a defendant has been convicted of a One-Strike qualifying crime in two separate cases, he or she is subject to a life term under the law regardless of the order of the convictions. SB 164 is pending Senate Appropriations.
Prior Legislation:
AB 1335 (Maienschein), of the 2013-2014 Legislative Session, a substantially similar bill was held on the Senate Appropriations Committee suspense file.
AB 313 (Zettel), Chapter 569, Statutes of 1999, added deaf and developmentally disabled persons as qualifying victims to the existing enhancement statute for serious crimes committed against the elderly, children under age 14, and persons who are either blind, a paraplegic, or quadriplegic.
SBx1 26 (Bergeson), Chapter 14, Statutes of 1994, codified the One-Strike Sex Law.
Analysis Prepared by: Pedro R. Reyes / APPR. / (916) 319-2081
AB 962
Page 9
Date of Hearing: April 14, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB 962
(Maienschein) – As Introduced February 26, 2015
SUMMARY:
Makes specified sex crimes committed against victims with mental
disorders or physical or developmental disabilities qualifying crimes
for the "One Strike Sex Law" and the vulnerable victim
enhancement. Specifically, this bill:
Adds the crimes of rape, sexual penetration, sodomy, and oral copulation committed against a person who is incapable of giving legal consent due to of a mental disorder or developmental or physical disability to the list of offenses which qualify for application of the "One Strike Sex Law."
Adds the crimes of rape, sexual penetration, sodomy, and oral copulation committed against a person who is incapable of giving legal consent due to of a mental disorder or developmental or physical disability to the list of offenses which qualify for the vulnerable-victim enhancement.
EXISTING LAW:
Provides that a person who commits an act of rape against a victim who is incapable of giving legal consent due to of a mental disorder or developmental or physical disability, shall be punished by imprisonment in the state prison for three, six, or eight years. (Pen. Code, § 264.)
Provides that a person who commits an act of sodomy against a victim who is incapable of giving legal consent due to a mental disorder or developmental or physical disability, shall be punished by imprisonment in the state prison for three, six, or eight years. (Pen. Code, § 286, subd. (g).)
Provides that a person who commits an act of oral copulation against a victim who is incapable of giving legal consent due to a mental disorder or developmental or physical disability, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. (Pen. Code, § 288a, subd. (g).)
Provides that a person who commits an act of sexual penetration against a victim who is incapable of giving legal consent due to a mental disorder or developmental or physical disability shall be punished by imprisonment in the state prison for a period of three, six, or eight years. (Pen. Code, § 289, subd. (b).)
Provides an additional punishment of one year when the defendant knows or reasonably should know that the victim of an enumerated offense is 65 years of age or older, blind, deaf, developmentally disabled, a paraplegic, a quadriplegic, or under 14 years old. (Pen. Code, § 667.9, subd. (a).)
Provides an additional punishment of two years when the defendant knows or reasonably should know that the victim of an enumerated offense is 65 years of age or older, blind, deaf, developmentally disabled, a paraplegic, a quadriplegic, or under 14 years old, and where the defendant also has a prior conviction for one of those crimes. (Pen. Code, § 667.9, subd. (b).)
Defines "developmentally disabled" for purposes of the vulnerable victim enhancement as "a severe, chronic disability of a person, which is all of the following:
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:
Self-care;
Receptive and expressive language;
Learning;
Mobility;
Self-direction;
Capacity for independent living;
Economic self-sufficiency." (Pen. Code, § 667.9, subd. (d).)
Provides that persons who commit rape, spousal rape, rape in concert, lewd and lascivious acts on a minor, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, shall be punished by 25-years-to-life if (Pen. Code, § 667.61, subd. (a)):
One or more of the following circumstances exist:
The defendant has been previously convicted of a specified sex offense.
The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to him or her.
The defendant inflicted aggravated mayhem or torture on the victim or another person in the commission of the present offense.
The defendant committed the present offense during the commission of a burglary of the first degree.
The defendant committed rape by a foreign object, sodomy in concert, as specified, oral copulation in concert as specified; or,
Two or more of the following circumstances exist:
The defendant kidnapped the victim of the present offense, as specified.
The defendant committed the present offense during the commission of a burglary, as specified.
The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense, as specified.
The defendant has been convicted in the present case or cases of committing an offense specified against more than one victim.
The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.
The defendant administered a controlled substance to the victim in the commission of the present offense, as specified.
Provides that persons who commit rape, spousal rape, rape in concert, lewd and lascivious acts on a minor, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, shall be punished with 15-years-to-life if one of the following circumstances exist (Pen. Code, § 667.61, subd. (b)):
The defendant kidnapped the victim of the present offense, as specified.
The defendant committed the present offense during the commission of a burglary, as specified.
The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense, as specified.
The defendant has been convicted in the present case or cases of committing an offense specified against more than one victim;
The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense; or,
The defendant administered a controlled substance to the victim in the commission of the present offense, as specified.
FISCAL EFFECT:
Unknown
COMMENTS:
Author's Statement: According to the author, "Under AB 962, the scope of existing penalty enhancements in Penal Code section 667.9 will be expanded, thus 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 California example, this was imperative as the victim's disability makes her incapable of speech or movement.
"Additionally, AB 962 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. AB 962 will allow for more equitable punishment for those who commit heinous crimes against victims who do not have the ability to protect themselves."
Dual Use of Facts: "Although a single factor may be relevant to more than one sentencing choice, such dual or overlapping use is prohibited to some extent. For example, the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence." (People v. Scott (1994) 9 Cal.4th 331, 350 & fn. 12.)
For example, Penal Code section 12022.7, the great bodily injury enhancement, which allows for enhanced punishment for actual infliction of great bodily injury where a great bodily injury occurred, can be applied to any offense except those where serious bodily injury is already an element of the substantive offense charged. (People v. Parrish (1985) 170 Cal.App.3d 336, 343-344; see also Pen. Code, § 12022.7, subd. (e), and Cal. Rules of Court, rule 4.420.)
However, "where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence." (People v. Castorena (1996) 51 Cal.App.4th 558, 562.) So, for example, where an age is an element of the offense, the victim's age alone may not be used as a factor in aggravation (People v. Fernandez (1990) 226 Cal.App.3d 669, 680), unless the victim is extremely young within the given age range so as to make a victim "particularly vulnerable" in relation to others within the age range (People v. Ginese (1981) 121 Cal.App.3d 468, 477).
As pertains to this bill, the victim's developmental or physical disability is an element of the enhancement. CALCRIM No. 3222 instructs the jury that it must decide whether the victim was, inter alia, "blind/deaf/developmentally disabled/paraplegic/[or] quadriplegic." The instruction also gives a specific definition for a developmental disability. For a true finding on the enhancement based on this characteristic, the jury must find developmentally disabled means a severe, chronic disability of a person that: 1) is attributable to a mental or physical impairment or a combination of mental and physical impairments; 2) is likely to continue indefinitely; and 3) results in substantial functional limitation in three or more of the following abilities: to care for one's self; to understand and express language; to learn; to be independently mobile; to engage in self-direction; to live independently; or to be economically self-sufficient. (CALCRIM No. 3222.)
The instructions on the substantive crimes also reference the victim's disability. The jury is required to find that a mental disorder/development or physical disability prevents the victim from legally consenting. (See e.g., CALCRIM No. 1004 [rape of a disabled woman.) The finding that there is a disability is limited to whether that disability affects the victim's ability to consent.
Arguably, the jury would have to make additional findings to impose the vulnerable-victim enhancement. The jury would be required to find that the developmental disability satisfied the criteria listed in the jury instruction. Alternatively, the jury could find that a victim suffered from one of the other physical disabilities which would not necessarily have prevented the person from legally consenting to the sex act. So, imposing the victim-vulnerability enhancement on a sex crime committed against a disabled person would not necessarily constitute impermissible dual use of facts.
One Strike Law: The One Strike Sex Crime Law is a separate sentencing scheme which was enacted to provide life sentences for certain aggravated sex offenders, even if they do not have prior convictions. Under this scheme, a first-time offender who commits a qualifying sex offense under one or more of the circumstances listed in the statute is subject to a mandatory sentence of 15 years to life or 25 years to life. (Pen. Code, § 667.61.) The facts that bring a defendant within the provisions of the One Strike Law are grouped into two categories. If a defendant commits a qualifying crime under one circumstance listed in subdivision (e), then he or she will receive a sentence of 15 years to life. If a defendant commits a qualifying crime under one or more circumstances listed under subdivision (d), or two or more circumstances listed under subdivision (e), then he or she will receive a sentence of 25 years to life. The distinction is that the aggravating circumstances listed in subdivision (d) are more severe than those listed in subdivision (e).
This bill adds crimes to the list of offenses which can be prosecuted under the One Strike Law. The additional aggravating circumstances must still be pled and proven to a jury.
Prison Overcrowding: In January 2010, a three-judge panel issued a ruling ordering the State of California to reduce its prison population to 137.5% of design capacity because overcrowding was the primary reason that CDCR was unable to provide inmates with constitutionally adequate healthcare. (Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United State Supreme Court upheld the decision, declaring that “without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill” inmates in California’s prisons. (Brown v. Plata (2011) 131 S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.)
After continued litigation, 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 its most recent status report to the court (February 2015),
the administration reported that as "of February 11, 2015,
112,993 inmates were housed in the State's 34 adult institutions,
which amounts to 136.6% of design bed capacity, and 8,828 inmates
were housed in out-of-state facilities. This current population is
now below the court-ordered reduction to 137.5% of design bed
capacity." (Defendants’ February 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).
The state now 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).) Moreover, there are
still approximately 10,500 prisoners being housed in out of state and
in private prisons. (See latest CDCR monthly population report:
<http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly/TPOP1A/TPOP1Ad1503.pdf>.)
CDCR has informed this Committee that in in the last four
fiscal years (FY), there were approximately 25 admissions to prison
for the offenses targeted under this bill, as follows:
-
FY 2010/11
Principal
Subordinate
Both
PC § 261(a)(1)
9
6
15
PC §286(h)
0
0
0
PC § 286(g)
0
1
1
PC § 288a(g)
1
1
2
PC § 289(b)
2
5
7
Totals
12
13
25
FY 2011/12
Principal
Subordinate
Both
PC § 261(a)(1)
4
4
8
PC §286(h)
0
0
0
PC § 286(g)
1
6
7
PC § 288a(g)
3
8
11
PC § 289(b)
1
0
1
Totals
9
18
27
FY 2012/13
Principal
Subordinate
Both
PC § 261(a)(1)
9
4
13
PC §286(h)
0
1
1
PC § 286(g)
1
1
2
PC § 288a(g)
3
6
9
PC § 289(b)
1
0
1
Totals
14
12
26
FY 2013/14
Principal
Subordinate
Both
PC § 261(a)(1)
5
PC § 286(h)
0
PC § 286(g
1
PC § 288a(g)
1
PC § 289(b)
3
Totals
10
However, it should be noted that not all of these admissions would be prosecuted under the One-Strike Law or allege the vulnerable-victim enhancement. Moreover, in those cases in which the vulnerable-victim enhancement is pled and proven, the court retains the discretion to strike it. (Pen. Code, § 1385.) Therefore, expanding the scope of these provisions to include the specified crimes would likely result in minor increased state incarceration.
Argument in Support: According to the Arc and United Cerebral Palsy California Collaboration, "Sexual assault of people with developmental disabilities can legitimately be called an epidemic. Your bill will increase penalties for the relatively few persons who the criminal justice system is able to convict of this vile crime, keeping them in prison and preventing their predation of non-incarcerated persons [with] developmental disabilities for longer periods of time."
Argument in Opposition: The California Public Defenders Association writes, "While well-intended, this proposed bill has the potential to imprison mentally disordered and disabled people. Mentally disordered and disabled individuals in group homes and other settings may not have the legal capacity to consent since the CALCRIM jury instruction 1004 defines it as 'a woman is prevented from legally consenting if she is unable to understand the act, its nature, and possible consequences.' Courts have stated that the definition, as embodied in the jury instruction, is sufficient to explain inability to legally consent. People v. Miranda, 199 Cal.App.4th 1403, 1419, fn. 13 (2011).
"However, such individuals are not children. They have sex drives and are sexually active. Should one mentally disordered or disabled individual face life in prison for having sex with another disabled or disordered person? Who is culpable? Is the person with the borderline mentally retarded I.Q. culpable for having sex with someone whose I.Q. is lower? Is the mentally disordered person who is taking his psychotropic medication culpable for having sex with the mentally disordered person who refused to take his psychotropic medications? Under the provisions of this proposed legislation, no force or other offense would be required if the individual had done it before and been convicted.
"This legislation is not needed and is redundant because someone who in the course of committing a sexual assault kidnaps the victim, commits a burglary, uses a weapon, inflicts great bodily injury, or ties the victim up or has a prior sexual assault is already subject to the enhanced punishment provisions, 15 or 25 years to life, of Penal Code Section 667.61. What this legislation does is add merely the status of the disability of the victim. …
"This proposed legislation would also undermine the Department of Corrections and Rehabilitation’s efforts to comply with the federal court order regarding prison overcrowding. Increasing sentences requires additional expenditures for state prisons.
Currently, it costs the state about $50,000 annually per prisoner.
Costs are higher for physically or mentally disabled inmates."
Related Legislation:
AB 1272 (Grove) authorizes a judicial officer to issue an ex parte emergency protective order when an officer has reason to believe that a developmentally-disabled person is in immediate danger of sexual exploitation by a developmental disability residential service provider. AB 1272 is pending hearing in this Committee.
SB 164 (Beall) provides that where a defendant has been convicted of a One-Strike qualifying crime in two separate cases, he or she is subject to a life term under the law regardless of the order of the convictions. SB 164 is pending hearing in the Senate Appropriations Committee.
Prior Legislation:
AB 1335 (Maienschein), of the 2013-2014 Legislative Session, would have made sex crimes committed against developmentally disabled victims qualifying crimes under the One Strike life-term sentencing scheme, and the vulnerable victim sentence enhancement. AB 1335 was held on the Senate Appropriations Committee suspense file.
AB 313 (Zettel), Chapter 569, Statutes of 1999, added deaf and developmentally disabled persons as qualifying victims to the existing enhancement statute for serious crimes committed against the elderly, children under age 14, and persons who are either blind, a paraplegic, or quadriplegic.
SBx1 26 (Bergeson), Chapter 14, Statutes of 1994, codified the One-Strike Sex Law.
REGISTERED SUPPORT / OPPOSITION:
Support
The
Arc and Cerebral Palsy California Collaboration
California
District Attorneys Association
California State Lodge, Fraternal
Order of Police
Crime Victims United
Junior League of
California
Los Angeles County Professional Peace Officers
Association
Long Beach Police Officers Association
Sacramento
County Deputy Sheriffs' Association
San Diego County District
Attorney
Santa Ana Police Officers Association
Opposition
American
Civil Liberties Union of California
California Public Defenders
Association
Legal Services for Prisoners with Children
Analysis Prepared by:
Sandy Uribe / PUB. S. / (916) 319-3744
Bill Author
Bill Co-Author(s):