BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 755
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          Date of Hearing:   April 17, 2007
          Counsel:                Nicole J. Hanson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                 AB 755 (Lieber) - As Introduced:  February 22, 2007
           
           
           SUMMARY  :   Creates a rebuttable presumption that any person who  
          willfully inflicts on a child physical pain or mental suffering  
          resulting from specified manners is unjustifiable.   
          Specifically,  this bill  :  

          1)Finds and declares that "child abuse is a major social problem  
            and that children in the age group of birth to three years  
            suffer the highest rate of victimization.  Child fatalities  
            are the most tragic consequences of maltreatment, and the vast  
            majority of children killed are younger than four years old.   
            Fatal abuse is too often the result of hitting or shaking by  
            caregivers under the guise of discipline.  Infants and  
            toddlers are the most vulnerable because of their tender age  
            and inability to defend themselves or ask for help.  It is  
            therefore wholly reasonable that the integrity and sanctity of  
            their bodies should be afforded the greatest protection under  
            the law."

          2)Provides that if the infliction of physical pain or mental  
            suffering occurred as a result of any of the following, there  
            is a rebuttable presumption that the physical pain or mental  
            suffering is unjustifiable:

             a)   The use of an implementation, including, but not limited  
               to, a stick, a rod, a switch, an electrical cord, a belt, a  
               broom, or a shoe;

             b)   Throwing, kicking, burning, or cutting a child;

             c)   Striking a child with a closed fist;

             d)   Striking a child under the age of three on the face or  
               head;

             e)   Vigorous shaking of a child under the age of three;








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             f)   Interference with a child's breathing; or,

             g)   Threatening a child with a deadly weapon.

          3)Requires the successful completion of either a non-violent  
            parental education class approved by the probation department  
            or no less than one year of a child abuser's treatment  
            counseling program approved by the probation department.  The  
            court shall determine whether the parenting class or the  
            treatment counseling program is the most appropriate under the  
            circumstances of each particular case and order the defendant  
            to complete the one which is most appropriate.

           EXISTING LAW  : 

          1)States any person who, under circumstances or conditions  
            likely to produce great bodily harm or death, willfully causes  
            or permits any child to suffer, or inflicts thereon  
            unjustifiable physical pain or mental suffering, or having the  
            care or custody of any child, willfully causes or permits the  
            person or health of that child to be injured, or willfully  
            causes or permits that child to be placed in a situation where  
            his or her person or health is endangered, shall be punished  
            by imprisonment in a county jail not exceeding one year, or in  
            the state prison for two, four, or six years.  [Penal Code  
            Section 273a(a).]

          2)Provides that any person who, under circumstances or  
            conditions other than those likely to produce great bodily  
            harm or death, willfully causes or permits any child to  
            suffer, or inflicts thereon unjustifiable physical pain or  
            mental suffering, or having the care or custody of any child,  
            willfully causes or permits the person or health of that child  
            to be injured, or willfully causes or permits that child to be  
            placed in a situation where his or her person or health may be  
            endangered, is guilty of a misdemeanor.  [Penal Code Section  
            273a(b).]

          3)Requires persons convicted of causing willful harm or injury  
            to a child, or endangering the person or health of a child and  
            probation is granted, the court shall set the following as  
            minimum standards of probation:

             a)   A mandatory minimum period of probation of 48 months;








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             b)    A criminal court protective order protecting the victim  
               from further acts of violence or threats, and, if  
               appropriate, residence exclusion or stay-away conditions;

             c)   Successful completion of no less than one year of a  
               child abuser's treatment counseling program approved by the  
               probation department.  The defendant shall be ordered to  
               begin participation in the program immediately upon the  
               grant of probation.  The counseling program shall meet  
               specified criteria as outlined under existing law.  The  
               defendant shall produce documentation of program enrollment  
               to the court within 30 days of enrollment, along with  
               quarterly progress reports;

             d)   The terms of probation for offenders shall not be lifted  
               until all reasonable fees due to the counseling program  
               have been paid in full, but in no case shall probation be  
               extended beyond the term provided under existing law.  If  
               the court finds that the defendant does not have the  
               ability to pay the fees based on the defendant's changed  
               circumstances, the court may reduce or waive the fees;

             e)   If the offense was committed while the defendant was  
               under the influence of drugs or alcohol, the defendant  
               shall abstain from the use of drugs or alcohol during the  
               period of probation and shall be subject to random drug  
               testing by his or her probation officer; and,

             f)   The court may waive any of the above minimum conditions  
               of probation upon a finding that the condition would not be  
               in the best interests of justice.  The court shall state on  
               the record its reasons for any waiver.  [Penal Code Section  
               273a(c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

          1)Author's Statement  : According to the author, "Corporal  
            punishment of children as a discipline technique has long been  
            a source of debate.  What starts as discipline, though, too  
            often becomes abuse.  

          "Conservative estimates indicate that almost 2,000 infants and  








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            young children die from abuse or neglect by parents or  
            caretakers each year or five children every day.  More must be  
            done to protect the smallest citizens of the State. 

          "Corporal punishment in California schools has been illegal  
            since 1986 (Education Code Section 49000).  It is also  
            expressly prohibited in day care centers, group homes, and  
            foster care. 

          "Existing law, Penal Code Section 273a, makes it a crime for any  
            person, under specified circumstances, to willfully cause or  
            permit a child to suffer or inflict on a child unjustifiable  
            physical pain or mental suffering. 

          "The vagueness of the 'unjustifiable' standard leads to  
            inconsistent results.  Cases of discipline serious enough to  
            injure a child and warrant prosecution may go unpunished if  
            the defendant raises the affirmative defense of 'reasonable  
            corporal punishment'.  Nor does current law explicitly ban  
            baby-shaking, which can result in grave injury to infants. 

          "This legislation amends California Penal Code Section 273a.  

          "This bill creates a rebuttable presumption that certain  
            specified types of discipline are to be considered  
            unjustifiable per se.  These provisions allow prosecutors to  
            charge baby-shaking as either a felony or a misdemeanor.  This  
            bill also expands the sentencing discretion of courts by  
            adding non-violent parenting education classes as an option  
            for those convicted under the statute." 

           2)Background  : According to information provided by the author,  
            "A battery is 'any willful and unlawful use of force or  
            violence upon the person of another'."  (Penal Code Section  
            242.)

            "Existing law explicitly exempts from criminal battery  
            prosecution adults who use physical violence on minors in the  
            form of corporal punishment.  The degree of battery permitted  
            is defined negatively:  the level of force used cannot be  
            'unjustifiable'.  

            "The imprecision of this language has permitted a broad range  
            of batteries on children to be excused by the courts or go  
            unprosecuted.








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            "The international law community has reached agreement  
            generally that corporal punishment is a human rights  
            violation.  Several countries, most recently New Zealand, have  
            officially banned corporal punishment, including spanking.  No  
            American state currently does so."

           3)Historical Backdrop behind Corporal Punishment  :  Corporal  
            punishment is the infliction of physical force by a parent or  
            guardian upon a child with the intent of correcting a child's  
            behavior.  Adults have used corporal punishment to discipline  
            children for centuries; however, it does have its limits.   
            Historically, common law held that a parent was "not permitted  
            to resort to punishment which would exceed that properly  
            required for disciplining purposes or which would extend  
            beyond the bounds of moderation.  Excessive or cruel conduct  
            was universally prohibited."  [  Bowers v. State  (Md. 1978) 389  
            A.2d 341, 348.]  

          All 50 states permit corporal punishment, either explicitly in  
            state statutes or through court decisions.  [Annotation,  
             Criminal Liability for Excessive or Improper Punishment  
            Inflicted on Child by Parent, Teacher, or One in Loco  
            Parentis  , 89 A.L.R.2d 396 (1995).]  By official estimates,  
            over 90% of American parents use corporal punishment to  
            discipline their children.  [Rodney Stark & James McEvoy III,  
             Middle Class Violence  , Psychol. Today, Nov. 1970, at 54.]

          The Bible sanctions corporal punishment and religious and other  
            moral teachings have approved of the threat and use of force  
            as a proper method of disciplining children.  Biblical support  
            came from Proverbs 23:13-14:  "Withhold not correction from  
            the child; for if thou beatest him with the rod, he shall not  
            die.  Though halt beat him with the rod, and shalt deliver his  
            soul from hell."  [Cited in  People v. Mummert  (Nassau County  
            Ct. 1944) 40 N.Y.S.2d 699, 703-04.]  Martin Luther believed  
            that parents could use extreme measures, even death, when  
            children were disobedient.  [  What Luther Says: An Anthology   
            145 (E. Plass ed., 1959).]  Based upon these religious  
            authorities, many people believed that beating a child was  
            acceptable. 

           4)Corporal Punishment versus Constitutional Right to Discipline  :  
             Some people believe that corporal punishment is an inherent  
            parental right.  The United States Supreme court has provided  








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            support for the idea that parents have a constitutional right  
            to use corporal punishment.  The interests of parents in the  
            care, custody, and control of their children is a fundamental  
            right protected by the Constitution.  [  Troxel v. Granville  
            (2000) 530 U.S. 57, 66 ("In light of . . . extensive  
            precedent, it cannot now be doubted that the Due Process  
            Clause of the Fourteenth Amendment protects the fundamental  
            right of parents to make decisions concerning the care,  
            custody, and control of their children." (citing  Meyer v.  
            Nebraska  (1923) 262 U.S. 390;  Pierce v. Soc'y of Sisters   
            (1925) 268 U.S. 510;  Prince v. Massachusetts  (1944) 321 U.S.  
            158;  Stanley v. Illinois  (1972) 405 U.S. 645;  Wisconsin v.  
            Yoder  (1972) 406 U.S. 205;  Quilloin v. Walcott   (1978)  434  
            U.S. 246  ;  Parham v. J.R  .(1979) 442 U.S. 584;  Santosky v.  
            Kramer  (1982) 455 U.S. 745;  Washington v. Glucksberg (  1997)  
            521 U.S. 702.] 

          There are, however, limits to this right.  A parent who  
            willfully inflicts unjustifiable punishment is not immune from  
            criminal prosecution.  [  People v. Stewart  (1961) 188  
            Cal.App.2d 88, 91;  People v. Curtiss  (1931) 116 Cal.App. Supp.  
            771, 777.]  As explained in  Curtiss  , corporal punishment is  
            unjustifiable when it is not warranted by the circumstances,  
            i.e., not necessary, or when such punishment, although  
            warranted, was excessive.  (116 Cal.App. at p. Supp. 780.)   
            "[B]oth the reasonableness of, and the necessity for, the  
            punishment is to be determined by a jury, under the  
            circumstances of each case." [  Id  ., at p. Supp. 777.] 

          The Attorney General (AG) issued an opinion on July 21, 1997  
            concerning the lawfulness of corporal punishment administered  
            by a parent. The AG concluded that such punishment may be so  
            administered as long as it is necessary and not excessive in  
            relation to the individual circumstances.  The AG stated, "The  
            use of an object other than the open hand when a parent  
            administers a spanking to his or her child is not in itself  
            unlawful.  However, the particular object used may affect the  
            reasonableness of the punishment, which is at the center of  
            the legal right to discipline one's own child.  In  People v.  
            Whitehurst  (1992) 9 Cal.App.4th 1045, 1050, the court recently  
            explained:  

          'A parent has a right to reasonably discipline by punishing a  
            child and may administer reasonable punishment without being  
            liable for a battery.  [  Emery v. Emery  (1955) 45 Cal.2d 421,  








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            429;  People v. Stewart  188 Cal.App.2d at p. 91.]  This  
            includes the right to inflict reasonable corporal punishment.  
            [  People v. Curtiss  116 Cal.App.Supp. at p. 775.]

          'However, a parent who willfully inflicts unjustifiable  
            punishment is not immune from either civil liability or  
            criminal prosecution.  [  People v. Stewart, supra,  188  
            Cal.App.2d 88, 91;  People v. Curtiss, supra  , 116 Cal.App.Supp.  
            771, 777.]  As explained in  Curtiss  , corporal punishment is  
            unjustifiable when it is not warranted by the circumstances,  
            i.e., not necessary, or when such punishment, although  
            warranted, was excessive.  [116 Cal.App. at p. Supp. 780.]   
            "Both the reasonableness of, and the necessity for, the  
            punishment is to be determined by a jury, under the  
            circumstances of each case."  [  Id  ., at p. Supp. 777.]

          'Thus as these cases make clear, whether the corporal punishment  
            falls within the parameters of a parent's right to discipline  
            involves consideration of not only the necessity for the  
            punishment but also whether the amount of punishment was  
            reasonable or excessive. Reasonableness and necessity  
            therefore are not two separate defenses but rather two aspects  
            of the single issue of parental right to discipline by  
            physical punishment . . . . '

          Hence, it is not unlawful for a parent to spank a child for  
            disciplinary purposes with an object other than the hand;  
            however, the punishment must be necessary and not excessive.   
            Whether such punishment is necessary and not excessive is for  
            the tier of fact to decide, not the Legislature as this bill  
            projects.

           5)Rebuttable Presumptions Violate Constitutional Principles  :  A  
            rebuttable presumption is an inference drawn from certain  
            facts that establish a prima facie case, which may be overcome  
            by the introduction of contrary evidence. 

          In criminal cases, a mandatory presumption offends  
            constitutional principles of due process of law because it  
            relieves the prosecutor from having to prove each element of  
            the offense beyond a reasonable doubt.  [  People v. Williams   
            (2005) 130 Cal.App.4th 1440, 1444-1445.]  "The prosecution  
            'may not rest its case entirely on a [mandatory rebuttable]  
            presumption unless the fact proved is sufficient to support  
            the inference of guilt beyond a reasonable doubt'."  [ People  








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            v. McCall  (2004) 32 Cal.4th 175, 183.] 

          An example of an impermissible mandatory presumption is  
            contained in  Carella v. California  (1989) 491 U.S. 263.   
            Carella was convicted of grand theft for failure to return a  
            rented car.  At the time of his conviction, Penal Code Section  
            10855 provided "[w]henever any person who has leased or rented  
            a vehicle willfully and intentionally fails to return the  
            vehicle to its owner within five days after the lease or  
            rental agreement has expired, that person shall be presumed to  
            have embezzled the vehicle."  Penal Code Section 484(b)  
            provided in part that "intent to commit theft by fraud is  
            presumed if one who has leased or rented the personal property  
            of another pursuant to a written contract fails to return the  
            personal property to its owner within 20 days after the owner  
            has made written demand . . . ."

          The jury was instructed that if the conditions of Penal Code  
            Section 10855 were met, the person "shall be presumed to have  
            embezzled the vehicle."  [  Carella v. California, supra  , 491  
            U.S. at p. 264.]  The jury was also instructed that if the  
            conditions of Penal Code Section 484(b) were met "intent to  
            commit theft by fraud is presumed . . . . "  [  Carella  , supra,  
            at p. 264.] 

          The United States Supreme Court found these instructions  
            violated the Fourteenth Amendment.  "These mandatory  
            directions directly foreclosed independent jury consideration  
            of whether the facts proved established certain elements of  
            the offense with which Carella was charged.  The instructions  
            also relieved the State of its burden of proof articulated in  
             Winship  [  In re Winship  (1970) 397 U.S. 358], namely proving by  
            evidence every essential element of Carella's crime beyond a  
            reasonable doubt."  [  Carella v. California  , supra, 491 U.S. at  
            p. 266.]

          Expressions in many opinions of the Supreme Court indicate that  
            it has long been assumed that proof of a criminal charge  
            beyond a reasonable doubt is constitutionally required.  [See,  
            for example,  Miles v. United States  (1881) 103 U.S. 304, 312;  
             Davis v. United States  (1895)160 U.S. 469, 488;  Holt v. United  
            States  (1910) 218 U.S. 245, 253;  Wilson v. United States   
            (1914) 232 U.S. 563, 569-570;  Brinegar v. United States  (1949)  
            338 U.S. 160, 174 (1949);  Leland v. Oregon  (1952) 343 U.S.  
            790, 795;  Holland v. United States  (1954) 348 U.S. 121, 138;  








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             Speiser v. Randall  (1958) 357 U.S. 513, 525-526. Cf.  Coffin v.  
            United States  (1895) 156 U.S. 432.]  Mr. Justice Frankfurter  
            stated "it is the duty of the Government to establish . . .  
            guilt beyond a reasonable doubt.  This notion -- basic in our  
            law and rightly one of the boasts of a free society -- is a  
            requirement and a safeguard of due process of law in the  
            historic, procedural content of 'due process'."  [  Leland v.  
            Oregon, supra  , at 802-803 (dissenting opinion)].  

          In a similar vein, the Court said in  Brinegar v. United States,  
            supra  , at 174, that "guilt in a criminal case must be proved  
            beyond a reasonable doubt and by evidence confined to that  
            which long experience in the common-law tradition, to some  
            extent embodied in the Constitution, has crystallized into  
            rules of evidence consistent with that standard.  These rules  
            are historically grounded rights of our system, developed to  
            safeguard men from dubious and unjust convictions, with  
            resulting forfeitures of life, liberty and property."   Davis  
            v. United States, supra  , at 488, stated that the requirement  
            is implicit in "constitutions . . . [which] recognize the  
            fundamental principles that are deemed essential for the  
            protection of life and liberty."  The Supreme Court demands  
            that, "No man should be deprived of his life under the forms  
            of law unless the jurors who try him are able, upon their  
            consciences, to say that the evidence before them . . . is  
            sufficient to show beyond a reasonable doubt the existence of  
            every fact necessary to constitute the crime charged."  (  Id.  ,  
            at 484, 493.)

          The reasonable-doubt standard plays a vital role in the American  
            scheme of criminal procedure and is a prime instrument for  
            reducing the risk of convictions resting on factual error.   
            The standard provides concrete substance for the presumption  
            of innocence -- that bedrock "axiomatic and elementary"  
            principle whose "enforcement lies at the foundation of the  
            administration of our criminal law."  (  Coffin v. United  
            States, supra,  at 453.)

          The requirement of proof beyond a reasonable doubt has a vital  
            role in criminal procedure for cogent reasons.  The accused  
            during a criminal prosecution has at stake interests of  
            immense importance, both because of the possibility that he or  
            she may lose his or her liberty upon conviction and because of  
            the certainty that he or she would be stigmatized by the  
            conviction.  Accordingly, a society that values the good name  








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            and freedom of every individual should not condemn a man for  
            commission of a crime when there is reasonable doubt about his  
            or her guilt.  The Supreme Court said in  Speiser v. Randall  ,  
            supra, at 525-526:  "There is always in litigation a margin of  
            error, representing error in factfinding, which both parties  
            must take into account.  Where one party has at stake an  
            interest of transcending value -- as a criminal defendant his  
            liberty -- this margin of error is reduced as to him by the  
            process of placing on the other party the burden of . . .  
            persuading the factfinder at the conclusion of the trial of  
            his guilt beyond a reasonable doubt.  Due process commands  
            that no man shall lose his liberty unless the Government has  
            borne the burden of . . . convincing the factfinder of his  
            guilt."  To this end, the reasonable-doubt standard is  
            indispensable, for it "impresses on the trier of fact the  
                                                                           necessity of reaching a subjective state of certitude of the  
            facts in issue."  [  Dorsen & Rezneck,   In Re Gault  and the  
            Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1,  
            26 (1967).]
           
          The reasonable doubt standard is further codified by Penal Code  
            Section 1096 which states, "A defendant in a criminal action  
            is presumed to be innocent until the contrary is proved, and  
            in case of a reasonable doubt whether his or her guilt is  
            satisfactorily shown, he or she is entitled to an acquittal,  
            but the effect of this presumption is only to place upon the  
            state the burden of proving him or her guilty beyond a  
            reasonable doubt.  Reasonable doubt is defined as follows: 'It  
            is not a mere possible doubt; because everything relating to  
            human affairs is open to some possible or imaginary doubt. It  
            is that state of the case, which, after the entire comparison  
            and consideration of all the evidence, leaves the minds of  
            jurors in that condition that they cannot say they feel an  
            abiding conviction of the truth of the charge.'"

          Hence, use of the reasonable-doubt standard is indispensable to  
            command the respect and confidence of the community in  
            applications of the criminal law.  It is critical that the  
            moral force of the criminal law not be diluted by a standard  
            of proof that leaves people in doubt whether innocent men are  
            being condemned.  It is also important in free society that  
            every individual going about his or her ordinary affairs has  
            confidence that his or her government cannot adjudge him  
            guilty of a criminal offense without convincing a proper fact  
            finder of his guilt with utmost certainty. 








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          Thus, a "rebuttable presumption 'tells the trier of fact that he  
            or they must find the elemental fact upon proof of the basic  
            fact, at least until the defendant has come forward with some  
            evidence to rebut the presumed connection between the two  
            facts . . . .' "  [  McCall  32 Cal.4th at p. 183.]  Thus, "it is  
            a 'troublesome' evidentiary device in a criminal case since  
            the prosecution bears the burden of establishing guilt beyond  
            a reasonable doubt."  [  Ibid  , citing  Ulster County Court v.  
            Allen  (1979) 442 U.S. 140, 157.]  Under federal due process  
            principles, "The prosecution 'may not rest its case entirely  
            on a [rebuttable] presumption unless the fact proved is  
            sufficient to support the inference of guilt beyond a  
            reasonable doubt'."  [  McCall  , at p. 183, citing  Ulster  , at p.  
            167.]  Therefore, a mandatory rebuttable presumption that  
            reduces the prosecution's burden of proving every element of  
            an offense beyond a reasonable doubt violates a defendant's  
            right to due process.  [  Sandstrom v. Montana  (1979) 442 U.S.  
            510, 523-524;  People v. Roder  (1983) 33 Cal.3d 491, 504.]

          The amendments to Penal Code Section 273a as proposed by this  
            bill violate a defendant's right to due process.  This bill  
            creates a mandatory rebuttable presumption that "physical pain  
            or mental suffering is unjustifiable" when obtained under  
            specified circumstances.  Criminal liability under Penal Code  
            273a should not be contingent on the type of object used.   
            Rather, the issue is whether the parent has inflicted  
            "unjustifiable physical pain or mental suffering" when  
            considered under individual objective circumstances.  "Section  
            273a holds every person to an objective standard of  
            reasonableness regarding the causing of physical pain, mental  
            suffering or injury to a child or the endangering of a child's  
            person or health."  [  People v. Deskin  (1992) 10 Cal.App.4th  
            1397, 1403.]  As the case law indicates, a mandatory  
            presumption is unconstitutional and it goes against the  
            foundation of our criminal justice system.  Due process  
            demands that no man shall lose his liberty unless the  
            Government has bared the burden of proving each and every  
            element beyond a reasonable doubt. 

           6)Argument in Support  :  None submitted.

           7)Arguments in Opposition :  

             a)   According to  David E.C. Gettis, Esq.  , " . . . by  








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               creating a rebuttable presumption that the use of an object  
               causing pain (i.e., spanking) is child abuse, she is doing  
               indirectly what she realizes she can't do directly.  It is  
               clear that the author hopes that if her bill passes,  
               parents will stop spanking their children with an object.   
               This bill would have that effect because parents who use an  
               object to administer reasonable corporal discipline will  
               face almost certain prosecution, the possible loss of their  
               children, and be faced with the awesome and expensive task  
               of proving themselves innocent in court.

             "This bill is not necessary because current law safeguards  
               the state's interest in protecting children from abuse,  
               while at the same time recognizing a parent's  
               constitutional right to direct the upbringing of their  
               children.  Nor is the current law vague.  The law provides  
               that corporal discipline is justified only when necessary  
               and not excessive.  [ People v. Whitehurst  , 9 Cal.App.4th,  
               1045, 1056 (1992).]

                                                                            
                  * * *

             " . . .  Case decisions in California have rules that in a  
               criminal case, a mandatory presumption violates due process  
               because it relieves the prosecutor of having to prove each  
               element of the crime beyond a reasonable doubt unless the  
               fact needed to be proved (the use of an object to spank) is  
               sufficient on its own to support the inference of guilty  
               beyond a reasonable doubt.  The predicate fact (use of an  
               object) is no sufficient to support the inference of guilt  
               beyond a reasonable doubt.  Attorney General Opinion No.  
               97-416, July 21, 1997, addressed this very issue.  The  
               opinion concluded that the use of an object in spanking was  
               not per se a violation of California law and that the  
               'reasonableness of discipline is a question of fact to be  
               determined objectively in light of the individual  
               circumstances presented.'  . . . "

             b)   According to the California Public Defenders  
               Association, "Existing law makes it a crime for any person,  
               under specified circumstances, to willfully cause or permit  
               a child to suffer, or inflicts on a child unjustifiable  
               physical pain or mental suffering.  This bill would create  
               a rebuttable presumption that if the physical pain or  








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               mental suffering results from the use of an implementation,  
               throwing, kicking, burning, or cutting a child; striking a  
               child with a closed fist; striking a child under three on  
               the face or head, vigorous shaking of a child under three;  
               interference with a child's breathing; or threatening a  
               child with a deadly weapon, then it is unjustifiable.  This  
               bill would also authorize the court to order a person  
               convicted of this offense into a non-violent parental  
               education class as a condition of probation, if  
               appropriate.

             "Our concern with this bill is with the evidentiary burden of  
               proof.  Under existing law, as mandated by the  
               Constitution, the prosecution has the burden of proving  
               beyond a reasonable doubt the facts that support the  
               finding that the elements of the crimes are present. By  
               creating a rebuttable presumption that the conduct was  
               unjustifiable, this bill turns that constitutional  
               requirement on its head by in essence requiring the accused  
               to prove the nonexistence of an element of the crime.  As  
               such, this approach should be rejected."

           REGISTERED SUPPORT/OPPOSITION  :

           Support 
           
          None

           Opposition 
           
          California Attorneys for Criminal Justice
          California Family Council
          California Public Defenders Association
          Campaign for Children and Families
          Capitol Resource Institute
          Child and Family Protection Association
          Concerned Women for America
          6 Private Citizens
           

          Analysis Prepared by  :    Nicole J. Hanson / PUB. S. / (916)  
          319-3744