BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 563|
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THIRD READING
Bill No: SB 563
Author: Speier (D), et al
Amended: 4/12/99
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-0, 4/6/99
AYES: Vasconcellos, Johnston, McPherson, Polanco, Rainey
NOT VOTING: Burton
SENATE APPROPRIATIONS COMMITTEE 10-0, 4/26/99
AYES: Johnston, Alpert, Bowen, Burton, Escutia, Johnson,
Kelley, McPherson, Mountjoy, Vasconcellos
NOT VOTING: Karnette, Leslie, Perata
SUBJECT : Battery: domestic partners
SOURCE : California Junior League
DIGEST : This bill expands the list of individuals
included within the scope of Section 273 of the Penal Code
that provides for an alternate misdemeanor/felony "wobbler"
sentence for a repeat domestic battery offense, as
specified.
The bill also provides for a one-year sentence for a second
failure to successfully complete a court ordered batterer's
program.
ANALYSIS : Current law generally provides for the
prosecution of domestic violence offenses as misdemeanor
battery or felony domestic violence, depending upon the
CONTINUED
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severity of physical injury inflicted upon the victim.
Under current law, corporal injury upon a "spouse, or . . .
any person with whom [the offender] is cohabiting, or . . .
any person who is the mother or father of [the offender's]
child" resulting in a traumatic condition is a felony
punishable by imprisonment in the state prison for two,
three, or four years, or in a county jail for not more than
one year, or by a fine of up to six thousand dollars or by
both. For purposes of this felony offense, "'traumatic
condition' means a condition of the body, such as a wound
or external or internal injury, whether of a minor or
serious nature, caused by a physical force."
Under current law, persons convicted of felony domestic
violence can be subject to an enhanced prison term of two,
four, or five years if the offense occurred within seven
years of one of the following offenses against a victim
designated in the felony domestic violence statute:
-- Battery inflicting serious bodily injury.
-- Sexual battery.
-- Assault with caustic chemicals or flammable
substances.
-- Assault with a stun gun or laser.
-- Assault with a deadly weapon likely to produce great
bodily injury.
-- Felony domestic violence.
Under current law, "a battery is any willful and unlawful
use of force or violence upon the person of another."
Battery generally is a misdemeanor punishable by
imprisonment in county jail not exceeding six months, a
fine not exceeding two thousand dollars, or by both the
fine and imprisonment.
Under current law, the penalty for battery committed
against any one of the following persons is a misdemeanor
punishable by imprisonment in a county jail for a period of
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not more than one year, a fine not exceeding two thousand
dollars, or by both:
--A spouse.
--A person with whom the defendant is cohabiting.
--A person who is the parent of the defendant's child,
former spouse, fianc?, or fianc?e.
--A person with whom the defendant currently has, or has
previously had, a dating or engagement relationship.
This bill would expand the scope of individuals listed
under the felony domestic violence laws above to include
a former spouse, former cohabitant, a woman who is
pregnant with the child of the offender.
The bill provides that any person who is required to
successfully complete a batterer's program and who fails to
do so a second time shall be imprisoned in the county jail
for one year.
Background: Misdemeanor and Felony Domestic Violence
Offenses
Simple battery generally is a misdemeanor punishable by up
to six months in jail. Even the slightest unprivileged
touching can constitute a battery:
It has long been established, both in tort and criminal
law, that "the least touching" may constitute battery.
In other words, force against the person is enough; it
need not be violent or severe, it need not cause bodily
harm or even pain, and it need not leave any mark.
The greater sentence for battery in a domestic violence
setting -- up to double the term for simple battery -- was
created in 1989 by AB 238 (Roybal-Allard) Chapter 191,
Statutes 1989. According to the Senate Judiciary Committee
analysis of AB 238, the author's intent was to address the
need to "differentiate battery between individuals who are,
or were, involved in a special relationship such as couples
who have lived together but recently separated, dating
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couples, formerly married and formerly dating couples and
gay couples, as more severe than 'common' battery."
(Senate Judiciary Committee Analysis of AB 238, as amended
May 30, 1989.)
Felony domestic violence first was enacted in California in
1945. As explained in People v. Gutierrez (1985) 171
Cal.App.3d 944:
[Penal Code section 273d] prohibited a husband from
inflicting upon his wife corporal injury resulting in a
traumatic condition and prohibited any person from doing
the same to any child. In 1977 the Legislature separated
the subject matters of child abuse and wife beating found
in the original section 273d. The child abuse
prohibition was retained in exact language with the same
section number. The wifebeating provisions were
renumbered as section 273.5 and underwent a
transformation which prohibited either spouse from
inflicting corporal punishment resulting in a traumatic
condition on the other. In addition, cohabiting partners
of the opposite sex were added as a category of protected
individuals.
As explained by the court in Gutierrez , "[i]t is injury
resulting in a traumatic condition that differentiates this
crime from lesser offenses. Both simple assault and
misdemeanor battery are included in a prosecution of
section 273.5."
Even "minor" physical injury falls within the scope of
section 273.5:
Section 273.5 is violated when the defendant inflicts
even "minor" injury. Unlike other felonies, e.g.
aggravated battery which require serious or great bodily
injury, "the Legislature has clothed persons of the
opposite sex in intimate relationships with greater
protection by requiring less harm to be inflicted before
the offense is committed."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
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According to Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 1999-2000
2000-01 2001-02 Fund
Felony Unknown increased costs for
incarceration, General
probably in excess of $150, annually
Misdemeanor Unknown increased costs for county
Local
jail and probation
SUPPORT : (Verified 4/27/99)
California Junior League (source)
California State Sheriffs' Association
Doris Tate Crime Victims Bureau
Junior League of Long Beach
Junior League of San Jose
National Organization for Women
Marjaree Mason Center (Fresno)
Junior League of San Diego
Junior League of Fresno
San Bernardino County Sheriff
YWCA of San Diego
Los Angeles District Attorney
Counseling and Crisis Services
one individual
OPPOSITION : (Verified 4/27/99)
California Public Defenders Association
California Attorneys for Criminal Justice
ARGUMENTS IN SUPPORT : According to the author's office,
"despite years of legislative efforts and high profile
domestic violence cases, discrepancies in sentencing for
offenders exist in law. Under current law, battery . . .
against a partner can only be prosecuted as a misdemeanor.
This is the case, regardless of the number of times the
same defendant has committed battery or other domestic
violence crimes. The present state of the law is a source
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of great concern and frustration to district attorneys and
other law enforcement agencies across the state because
domestic violence is a highly recidivistic crime. . . .
"Conversely, corporal injury against a partner . . . is
punishable as either a misdemeanor or a felony and if
convicted of the same crime within seven years of two or
more prior convictions is punishable as a felony. Battery
and corporal injury should be addressed equally.
"SB 563 provides equity in domestic violence laws by making
the crime of battery against a partner, if committed within
seven years or two or more prior convictions of the same
offense or other domestic abuse offense, punishable as a
misdemeanor or felony. This bill would treat all acts of
domestic violence equally and establish that battery
against a partner is a serious act of violence."
Proponents argue that adding these additional categories of
persons to the felony domestic violence statute would
correct an anomaly in current law through which an assault
against a noncohabitant former spouse is a misdemeanor,
while assault against a cohabitant or spouse is a wobbler.
According to these proponents, the Department of Justice
has documented that "separation assault" -- that is,
domestic violence which occurs after the victim has left
the abuser -- accounts for 75% of reported assaults by an
intimate partner. In addition, it has been submitted that
significantly more battered women seek medical attention
for injuries sustained as a consequence of domestic
violence after separation than during cohabitation.
Approximately 75% of the calls to law enforcement for
intervention and assistance in domestic violence occur
after separation from batterers.
ARGUMENTS IN OPPOSITION : California Attorneys for
Criminal Justice state that, :while reducing domestic
violence is a laudable goal, we do not believe that
ratcheting up sentences another notice provides a
meaningful response to this serious and complex social
problem. Furthermore, in the era of Three Strikes, the
Legislature should not be elevating more misdemeanor
offenses to potential felonies. The effect of this is
predictable: a husband and provider for his family will
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end up with a life sentence because of a relatively minor
domestic against the wishes of the alleged victim as well
as the defendant. While domestic violence is a serious
problem, the criminal justice system is a blunt instrument
to employ in response. If the Legislature continually
responds by increasing criminal penalties, inevitably the
punishment will increasingly create more problems than it
solves."
RJG:sl 5/3/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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