BILL ANALYSIS AB 755 Page 1 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; AB 755 Page 2 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; AB 755 Page 3 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 AB 755 Page 4 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. AB 755 Page 5 "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 AB 755 Page 6 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, AB 755 Page 7 429; 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 AB 755 Page 8 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; AB 755 Page 9 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 AB 755 Page 10 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. AB 755 Page 11 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 AB 755 Page 12 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 AB 755 Page 13 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