(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 subject to 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 subject to 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 subject to 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.

Date of Hearing: April 26, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 516

Author:(Maienschein) – As Introduced Ver:February 13, 2017

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 20 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:

1. 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.

1. Purpose. According to the author, "Under AB 516, the scope of existing penalty enhancements 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.
   
   Additionally, AB 516 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.
   

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.

1. 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.” Arc argues this bill will increase penalties for the persons convicted of this vile crime, thus preventing their predation of persons with developmental disabilities.
   
2. Argument in Opposition. According to the American Civil Liberties Union (ACLU), "While protecting our developmentally disabled community from victimization is an extremely important objective, we believe that lengthening sentences for the sexual crimes referenced in this bill will not accomplish that goal, and will only lead to more overcrowding in our prisons.” ACLU argues that now is not the time for California to be adding longer prison sentences to crimes, California law already provides significant punishments for the crimes listed in AB 516.
3. Prior Legislation. AB 962 and AB 1821 (Maienschein) of the 2015-2016 Legislative Session were identical to this bill. Both were held on this Committee’s Suspense file.
   

AB 1335 (Maienschein) of the 2013-2014 Legislative Session also contained the same provisions as this bill. 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.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Introduced Ver:

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:

1. 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."
   
2. 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:

1. 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.)
   
2. 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).)
   
3. 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).)
   
4. 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).)
   
5. 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).)
   
6. 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).)
   
7. Defines "developmentally disabled" for purposes of the vulnerable victim enhancement as "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; and
      
   3. Results in substantial functional limitation in three or more of the following areas of life activity:
      
      1. Self-care;
         
      2. Receptive and expressive language;
         
      3. Learning;
         
      4. Mobility;
         
      5. Self-direction;
         
      6. Capacity for independent living;
         
      7. Economic self-sufficiency." (Pen. Code, § 667.9, subd. (d).)
         
8. 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)):
   
   1. One or more of the following circumstances exist:
      
      1. The defendant has been previously convicted of a specified sex offense;
         
      2. 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;
         
      3. The defendant inflicted aggravated mayhem or torture on the victim or another person in the commission of the present offense;
         
      4. The defendant committed the present offense during the commission of a burglary of the first degree;
         
      5. The defendant committed rape by a foreign object, sodomy in concert, as specified, oral copulation in concert as specified; or,
         
   2. Two or more of the following circumstances exist:
      
      1. The defendant kidnapped the victim of the present offense, as specified.
         
      2. The defendant committed the present offense during the commission of a burglary, as specified.
         
      3. The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense, as specified.
         
      4. The defendant has been convicted in the present case or cases of committing an offense specified 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, as specified.
         
9. 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)):
   
   1. The defendant kidnapped the victim of the present offense, as specified.
      
   2. The defendant committed the present offense during the commission of a burglary, as specified.
      
   3. The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense, as specified.
      
   4. The defendant has been convicted in the present case or cases of committing an offense specified 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; or,
      
   6. The defendant administered a controlled substance to the victim in the commission of the present offense, as specified.
      

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Under AB 516, 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 516 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.”
   
2. 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.
   
3. 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.
   
4. 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.
   
   CDCR’s February 2017 monthly report on the prison population notes that the in-state adult institution population is currently 114,124 inmates, which amounts to 134.1% of design capacity. This is an increase of 1.1% from February of last year. Additionally, there are still 4,400 prisoners being housed out of state. (http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly/TPOP1A/TPOP1Ad1702.pdf )
   
   The Governor’s January proposed budget for 2017-2018 anticipates that “[t]he adult inmate average daily population is projected to decrease from 129,015 in 2016-17 to 128,159 in 2017-18, a decrease of 856 inmates, or 0.7 percent. The average daily parolee population is projected to increase from 43,686 in 2016-17 to 44,761 in 2017-18, an increase of 1,075 parolees, or 2.5 percent. The decrease in the adult inmate population is due to a projected reduction related to the implementation of Proposition 57, the Public Safety and Rehabilitation Act of 2016, which offsets a projected increase in felon admissions.” (http://ebudget.ca.gov/budget/2017-18/#/Department/5225)
   
   Thus, while CDCR is currently in compliance with the three-judge panel’s order on the prison population, the state needs to maintain a “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).)
   
   CDCR has informed this Committee that in in the last four fiscal years (FY), there were the following admissions to prison for the offenses targeted under this bill:

1. Argument in Support: According to the Arc and Cerebral Palsy California Collaboration, “Sexual assault of people with developmental disabilities can legitimately be called 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.”
   
2. Argument in Opposition: According to the American Civil Liberties Union, “California law already provides significant punishments for the crimes listed in AB 516. Under existing statutes, any person convicted of rape, sodomy, or oral copulation where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent can be punished by up to eight years in prison. (Penal Code, §§261, subd. (a)(1); 264; 289, subd. (b); 288a, subd. (g).) If a defendant commits rape against a person incapable of giving legal consent due to a developmental disability by acting in concert with another person by force or violence, that defendant can be punished by up to nine years in prison (Penal Code, §264.1, subd. (a)); if the person against whom the crime was committed was under the age of 14 years, the defendant can be punished by up to 14 years in prison (Penal Code, §264.1, subd. (b)(1)); and if the defendant has twice been previously been convicted of this offense or any other serious or violent felony, the defendant can face 25 years-to-life in prison. (Penal Code, §667, subd. (e)(2); 1192.7, subd. (c).) Thus, the existing penalties for these offenses are already quite severe and impose sufficient punishment.
   
   “Additionally, now is not the time for California to be adding longer prison sentences to crimes, particularly when it is not clear that these longer sentences will have any greater deterrent effect. Corrections spending remains high; last year the Governor’s proposed budget provided $11.2 billion for adult corrections and an additional $1.2 billion for other parts of the state corrections system. Rather than enacting new, longer penalties, the Legislature should strive to simplify the state’s complex Penal Code, unless longer sentences are truly necessary. While protecting our developmentally disabled community from victimization is an extremely important objective, we believe that lengthening sentences for the sexual crimes referenced in this bill will not accomplish that goal, and will only lead to more overcrowding in our prisons.”
   
3. Prior Legislation:
   
   1. AB 1821 (), of the 2015-2016 Legislative Session was identical to this bill. AB 1821 was held on the Assembly Appropriations Committee suspense file.
      
   2. AB 962 (Maienschein), of the 2015-2016 Legislative Session was identical to this bill. AB 962 was held on the Assembly Appropriations Committee suspense file.
      
   3. AB 1335 (Maienschein), of the 2013-2014 Legislative Session, also contained the same provisions as this bill. AB 1335 was held on the Senate Appropriations Committee suspense file.
      
   4. 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.
      
   5. SBx1 26 (Bergeson), Chapter 14, Statutes of 1994, codified the One-Strike Sex Law.

REGISTERED SUPPORT / OPPOSITION:

Support

Arc and Cerebral Palsy California Collaboration
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs’ Association
Crime Victims United of California
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Los Angeles Probation Officers Union
Peace Officers Research Association of California
Riverside Sheriffs Association
San Diego Regional Center

Opposition

American Civil Liberties Union
California Public Defenders Association

Analysis Prepared by:

Sandy Uribe / PUB. S. /