California Senate Bill SB430 Amended / Bill

 BILL NUMBER: SB 430AMENDED BILL TEXT AMENDED IN SENATE MAY 10, 2011 INTRODUCED BY Senator Kehoe (Coauthors: Assembly Members Atkins and Fletcher) FEBRUARY 16, 2011 An act to  add Section 249 to   amend Section 273.5 of  the Penal Code, relating to strangulation. LEGISLATIVE COUNSEL'S DIGEST SB 430, as amended, Kehoe. Strangulation. Existing law establishes various crimes against the person, such as assault and battery, and provides that any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony punishable by imprisonment in the state prison for 2, 3, or 4 years, or  as a misdemeanor with specified penalties   by incarceration in a county jail not exceeding one year, or by a fine, or by both imprisonment and a fine, as specified. Existing law defines "traumatic condition" for these purposes to mean 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.   This bill would specify that "traumatic injury" includes injury as a result of strangulation or suffocation and defines the terms "strangulation" and "suffocation" for those purposes.   This bill would provide that any person who willfully and unlawfully strangles, suffocates, or attempts to suffocate a person is guilty of a felony punishable by incarceration in the state prison for a term of 2, 3, or 4 years. The bill would provide that if the defendant and victim are in a specified relationship, the defendant would be subject to an enhancement of an additional 2 years in state prison. The bill would provide that evidence of either an intent to kill or injure the victim or visible injuries is not required to convict a defendant of violating these provisions.   By creating a new crime, this bill would impose a state-mandated local program.   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.  Vote: majority. Appropriation: no. Fiscal committee:  yes   no  . State-mandated local program:  yes   no  . THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 273.5 of the   Penal Code   is amended to read:  273.5. (a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished 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 ($6,000) or by both that fine and imprisonment. (b) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section. (c) As used in this section, "traumatic condition" means a condition of the body, such as a wound  ,  or external or internal injury,  including, but not limited to, injury as a result of strangulat   ion or suffocation,  whether of a minor or serious nature, caused by a physical force.  For purposes of this section, "strangulation" and "suffocation" include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.  (d) For the purpose of this section, a person shall be considered the father or mother of another person's child if the alleged male parent is presumed the natural father under Sections 7611 and 7612 of the Family Code. (e) (1) Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000). (2) Any person convicted of a violation of this section for acts occurring within seven years of a previous conviction under subdivision (e) of Section 243 shall be punished 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 ten thousand dollars ($10,000), or by both that imprisonment and fine. (f) If probation is granted to any person convicted under subdivision (a), the court shall impose probation consistent with the provisions of Section 1203.097. (g) If probation is granted, or the execution or imposition of a sentence is suspended, for any defendant convicted under subdivision (a) who has been convicted of any prior offense specified in subdivision (e), the court shall impose one of the following conditions of probation: (1) If the defendant has suffered one prior conviction within the previous seven years for a violation of any offense specified in subdivision (e), it shall be a condition thereof, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 15 days. (2) If the defendant has suffered two or more prior convictions within the previous seven years for a violation of any offense specified in subdivision (e), it shall be a condition of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 60 days. (3) The court, upon a showing of good cause, may find that the mandatory imprisonment required by this subdivision shall not be imposed and shall state on the record its reasons for finding good cause. (h) If probation is granted upon conviction of a violation of subdivision (a), the conditions of probation may include, consistent with the terms of probation imposed pursuant to Section 1203.097, in lieu of a fine, one or both of the following requirements: (1) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097. (2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted. (i) Upon conviction under subdivision (a), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison, county jail, or if imposition of sentence is suspended and the defendant is placed on probation.  SECTION 1.   Section 249 is added to the Penal Code, to read: 249. (a) Any person who willfully and unlawfully strangles, suffocates, or attempts to suffocate a person is guilty of a felony punishable by incarceration in the state prison for a term of two, three, or four years. (b) For a defendant to be convicted of a violation of subdivision (a), evidence of either of the following is not required: (1) An intent to kill or injure the victim. (2) Visible injuries. (c) If the defendant and the victim are in a relationship described in subdivision (b) of Section 13700, the defendant shall be subject to an enhanced penalty of two additional years imprisonment in the state prison. (d) (1) "Strangle" for purposes of this section means to intentionally, knowingly, or recklessly impede the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck. (2) "Suffocate" for purposes of this section means to intentionally, knowingly, or recklessly impede the normal breathing of a person. (e) Nothing in this section shall preclude prosecution of a person under any other provision of this code.   SEC. 2.   No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.