BILL ANALYSIS
AB 59
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Date of Hearing: April 1, 1997
Counsel: Jerome McGuire
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Robert M. Hertzberg, Chair
AB 59 (Brown-Kuehl-Napolitano-Washington) - As Amended: March 10,
1997
SUMMARY : Increases the penalty for kidnapping to commit specified
sex crimes to be equal to the penalty for kidnaping for robbery -
life with the possibility of parole. The bill further defines
kidnapping with a weapon as a violent felony and expands the
definition of kidnapping a child under the age of 14 years to
apply to kidnapping by misrepresentations with the intent to
commit any felony, or with the intent to deprive the parent or
guardian of custody of the child. Specifically, this bill ,
1) Places the "aggravated kidnapping" offenses of kidnapping for
robbery and kidnapping for specified sex offenses in one Penal
Code section and increases the penalty for kidnapping for the
purpose of robbery from the current penalty of imprisonment in the
state prison for 5, 8 or 11 years to the same penalty as for
kidnapping for robbery - imprisonment in the state prison for life
with the possibility of parole. (See proposed Penal Code Section
209 (b).)
2) Codifies, as noted, the decision of the California Supreme
Court in People v. Rayford (1993) 9 Cal.4th 1: "Aggravated"
kidnapping - kidnapping for purposes of committing a further crime
- must involve movement of the victim which increases the risk of
harm beyond that inherent in the underlying offense, and which is
not incidental to the target crime.
3) Adds kidnapping with the personal use of a dangerous or deadly
weapon to the list of offenses which are violent felonies, and
thus subjects a defendant to greater initial sentencing and a 15%
limit on sentencing credits.
4) Changes the definition of kidnapping a child under the age of
14 years so that a person who by false promises,
misrepresentations or the like, and with the intent to either
unlawfully deprive the parent or legal guardian of the custody of
the child, or to commit any felony upon the child - not just lewd
conduct, moves a child under the age of 14 years is guilty of
kidnapping.
5) Limits the current exemption from the kidnapping statutes.
The current statutes state that kidnapping does not apply to the
taking, detaining or concealing of a minor child by a biological
parent, a natural father, an adoptive parent, or a person who has
been granted access to the minor child by court order. This bill
provides that this exemption does not apply where the minor child
is taken, detained, or concealed with the intent to commit lewd
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conduct on a child under the age of 14 years.
6) Makes changes in the following provisions so as to conform
them to code section changes in this bill and the designation of
kidnapping with a weapon as a violent felony:
a) Sex offender registration and high-risk notification law;
b) The 1-900 and CD-ROM sexual offender public information
law;
c) The "one strike" sexual offender penalty law;
d) The habitual violent offender law;
e) The habitual sexual offender law;
f) The 9- or 15-year enhancement for kidnapping for sex
crimes;
g) Ceremonial child abuse and child sexual abuse;
h) Kidnapping of a child to permanently deprive the parent of
legal guardian of the child;
i) The consecutive/concurrent term and enhancement sentencing
laws;
j) Prohibitions on probation and dismissals of enhancements;
and
k) The prohibition on sentencing credits for habitual
offenders.
EXISTING LAW provides that:
1) One who takes or detains and carries away another by means of
force or fear, or who by force or fear takes or detains
another with the intent to remove the victim from California
for purposes of involuntary servitude, commits kidnapping (a
felony) punishable by imprisonment in the state prison for
three, five or eight years. (Penal Code Section 207(a);
Penal Code Section 208(a).)
2) Kidnapping of a child under the age of 14 years is a felony
punishable by imprisonment in the state prison for a term of
5, 8 or 11 years in state prison. (Penal Code Section
208(b).)
3) One who, with the intent to commit lewd conduct, entices,
seduces or makes false promises to a child under the age or 14
years, to take the child from the country, state, county or
another portion of the same county, is guilty of kidnapping (a
felony) punishable by imprisonment in the state prison for 5, 8
or 11 years. (Penal Code Sections 207(b) and 208(b).)
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4) One is not guilty of kidnapping if (s)he takes away or
entices a child so as to protect the child from danger, or
(s)he makes a private or law enforcement arrest, or where the
child is taken or concealed by a biological parent, natural
father, adoptive parent or person who has been given access
to the child by court order. (Penal Code Sections 207(e) and
208(c).)
5) One who kidnaps any person with the intent to commit rape,
oral copulation, sodomy or rape by instrument is guilty of
kidnapping (a felony) and is punishable by imprisonment in
the state prison for 5, 8 or 11 years, where the movement of
the victim is not "incidental" to the underlying sex offense
and substantially increases the danger to the victim. (Penal
Code Section 208(d); People v. Rayford, supra , 9 Cal.4th 1.)
6) One who kidnaps a victim so that the "movement of the victim
substantially increased the risk of harm to the victim over
and above that level of risk necessarily inherent in the
underlying offenses" of rape, spousal rape, foreign object
rape in-concert, forcible sodomy, oral copulation or lewd
conduct upon a child, shall be punished by an indeterminate
term of 25 years to life. (Penal Code Section 667.61 (d)(2)
- the "one strike" law; People v Rayford, supra , 9 Cal.4th at
p. 22.)
7) Kidnapping for ransom is punishable by imprisonment in state
prison for life without possibility of parole where the
victim is killed, suffers bodily harm or is intentionally
confined so as to subject him or her to a substantial
likelihood of death; it is punishable by imprisonment for
life with the possibility of parole in the absence of those
circumstances, or in kidnapping for robbery. (Penal Code
Sections 207, 208, 209, and 209.5.)
8) A perpetrator who kidnaps another for purposes of carjacking
shall be punished by imprisonment for life with the
possibility of parole where the movement of the victim is
more than incidental to the carjacking and substantially
increases the risk of harm to the victim. (Penal Code
Section 209.5.)
9) Kidnapping of a child under the age of 14 is a "violent"
felony, and any form of kidnapping is a "serious" felony. Such
offenses qualify as "strikes" under the Three Strikes law and
require other certain sentence enhancements. (Penal Code
Section 667.5 (c)(14)-(15).)
COMMENTS :
1) Author's Statement . According to the author, AB 59, like AB
95 in the 1995-1996 session, addresses two primary issues:
increasing the penalty for kidnapping to commit a sex offense to a
life offense and including the deceptive taking of a child,
without the element of intent to commit a further sex offense,
within the definition of kidnapping.
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The author states, "Kidnapping is punishable by three, five, or
eight years. Kidnapping to commit a sex crime on a child under
14 is punishable by five, eight, or 11 years while kidnapping
to commit robbery is punishable by life.
Over the last several years, arguments were made that there is
clear lack of parity in the law, as we appear to put greater
emphasis on the value of property than the atrocities committed
on children. This argument overlooked the fact that
determinate sentences, with applicable sentence enhancements
for kidnapping with an attempted sex crime are likely produce a
greater sentence than a life term for kidnapping where the
defendant is eligible for parole in 7 years.
However, there have been two recent developments that have
brought this issue back before the Legislature in a way that
would allow the 'parity issue' to be dealt with in a
straightforward manner:
a) The Legislature enacted a one-strike law for sex crimes.
This removes the anomaly that an 'attempt' may be punished
more severely than the actual offense.
The Supreme Court held that the same proof requirements
that apply to Penal Code Section 209, subdivision (b) -
kidnapping for robbery - apply to Penal Code section 208,
subdivision (d) - kidnapping of any person for purposes of
a sex crime. See People v. Rayford (1994) 9 Cal. 4th 1.
Therefore, as the elements of the crimes are the same, the
penalties should be the same. In codifying the Daniels
test in AB 95, we address the technical impediments
previously identified by the Court."
The background provided by the author further notes, this bill
changes existing law to provide for a life sentence, instead of
a determinate term of 5, 8 or 11 years, for an attempted sex
crime during a kidnapping where the movement of the victim was
more than incidental to the underlying attempted sex offense
and substantially increased the risk of harm to the victim.
This is the definition of aggravated kidnapping set out by the
California Supreme Court in People v. Rayford , supra , 9 Cal.4th
1. This is important because the 25 to life sentence imposed
under the "one-strike" law in Penal Code Section 667.61 only
applies where the underlying sex offense was completed.
Defendants should not receive a windfall merely because of the
fortuitous circumstance that an intended sex crime was not
fully accomplished.
This bill is thus analogous to and consistent with the
sentencing treatment of premeditated murder and attempted
premeditated murder. Attempted premeditated murder carries a
life sentence with the possibility of parole. (Penal Code
Sections 189/664 and 3046.) Premeditated (first degree) murder
is punishable by life imprisonment with a minimum sentence of
25 years. Murder can be punishable by death or life
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imprisonment without parole if aggravating "special
circumstances" exist. (Penal Code Sections 189-190.2.)
2) Taking of Children . A deceptive taking of a child under 14
done with any intent other than to commit a sex offense on the
minor is not kidnaping under current law. (Penal Code Section
207(b).) This bill defines kidnapping to include deceptively
taking a child with the intent to commit a felony of any kind on
the child or to unlawfully deprive the parent or guardian of
custody of the minor. The bill specifically does not apply to
child custody disputes. Penal Code Section 667.85 provides a
three-year enhancement for taking a child with the intent to
permanently deprive the parent or legal guardian of custody of the
minor.
3) Defining Kidnapping With a Weapon as a Violent Felony .
a) Overview . The primary effect of defining a felony as
violent under Penal Code Section 667.5 is that the usual
five-year and double-the-base-term limitations on
enhancements do not apply to violent felonies. Further,
prison sentencing credits are limited to 15% of the total
sentence imposed. (Penal Code Section 2933.1.) Further,
all violent felonies are "strikes" under the Three Strikes
law, and violent felonies are also serious felonies which
subject a defendant to five year sentence enhancements for
each prior serious felony conviction. (Penal Code Section
667 (a).)
b) Determinately Sentenced Kidnaping as a Violent Felony - AB
59 Changes . Under current law, kidnapping constitutes a
violent felonies under any of three circumstances:
i. The defendant personally uses a firearm in
committing the
kidnapping.
ii. The defendant personally inflicted great bodily
injury in committing the kidnapping.
iii. The victim of the kidnapping was a child under 14.
Under current law, any felony punishable by life imprisonment
or death is a violent felony. To the extent that a crime is
made punishable by a life sentence, it is made a violent
felony. In so far as this bill makes kidnapping to commit
specified sex offense a life offense, it is making that conduct
a violent felony.
However, because Penal Code Section 3046 makes no reference to
credits on life sentences where there is no state minimum
sentence in the governing statute, credits are inapplicable by
statute to the determination of the minimum term served. The
minimum term served must still be set at seven calendar years.
REGISTERED SUPPORT/OPPOSITION :
AB 59
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Support
Committee on Moral Concerns
Office of the Chief Legislative Analyst - City of Los Angeles
Doris Tate Crime Victims Bureau
Opposition
None on File
Analysis prepared by : Jerome McGuire / apubs / (916) 445-3268