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AB-2160 California Women’s Care Act.(2023-2024)

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Date Published: 02/28/2024 09:00 PM
AB2160:v98#DOCUMENT

Amended  IN  Assembly  February 28, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 2160

Introduced by Assembly Member McKinnor

February 06, 2024

An act to add Chapter 6 (commencing with Section 1565.1) to Title 12 of Part 2 of the Penal Code, relating to crimes.


LEGISLATIVE COUNSEL'S DIGEST


AB 2160, as amended, McKinnor. California Women’s Care Act.
Existing law gives judges a judge discretion when deciding various matters in a criminal proceeding, including, among other things, issuing bail or releasing a defendant on their own recognizance, accepting a diversion or deferred entry of judgment agreement, and imposing sentences and granting probation.
This bill would, when a court is exercising it’s its discretion with regard to these matters, make a rebuttable presumption against detention and incarceration of a pregnant or postpartum defendant, as defined, if the defendant provides the court and district attorney with notice of the defendant’s status as a pregnant or postpartum defendant at each applicable stage of the proceedings. The bill would require a court that decides to detain or incarcerate a defendant after this consideration to make specific findings on the record that the risk to public safety or any other factor the court is required to consider is substantial enough to outweigh the risk of incarceration, as specified.
The bill would authorize any pregnant or postpartum defendant to request a stay of execution of their sentence by filing a written request to the court if the pregnant or postpartum defendant is detained or incarcerated in a county jail or state prison for any period of time through the end of the pregnancy or the postpartum period, except as specified. The bill would require the court to apply the rebuttable presumption above when considering whether to grant that stay of execution. The bill would authorize a court to order a stay of execution of the sentence for any period of time through the end of the pregnancy or the postpartum period.
The bill would authorize a person who may be pregnant or postpartum and who is arrested or in custody in a county jail or state prison to request a pregnancy test upon or following admission to the county jail or state prison, and would require the county jail or state prison to provide a pregnancy test upon request and allow the person to take the pregnancy test within 24 hours after the request. By imposing additional duties on county jails, 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) There is an increasing female population in prisons and jails.
(2) While no system is perfect in responding to the medical conditions of pregnancy, correctional facilities and county jails are particularly ill-equipped to do so.
(3) During criminal cases a criminal case involving a pregnant or postpartum defendant, the physical and mental health needs of the pregnant defendant or the postpartum defendant and newborn must be considered at all stages of the proceeding as a matter of community health and safety.
(4) Timely attention to medical conditions and mental health during the perinatal period can improve health and welfare for multiple generations of a family unit.
(5) Pregnancy is a time-sensitive process that has many potential outcomes and variations. A pregnant person may feel healthy and experience no complications. A pregnant person may also experience sudden, harmful medical conditions, such as preeclampsia or placental abruption, or develop complex medical conditions that result in the early termination of a pregnancy or threaten the life of the pregnant person, such as an ectopic pregnancy. At any stage of the perinatal period, situations a situation can occur that cause causes long-term physical and mental health trauma for the pregnant person.
(6) Criminal proceedings are not responsive to the timeline or complexity of the perinatal period.
(7) When a substance use disorder intersects with a pregnancy, it is best handled as a health condition. Increasing the time a pregnant person with a substance use disorder is in a correctional facility or county jail is counter to public health and may drive the pregnant person away from medical care and support services.
(8) The end of the pregnancy does not immediately terminate the effects of the pregnancy on the person who was pregnant.
(9) The postpartum period is an essential timeframe for both the person who gave birth and the newborn. It is an opportunity for the newborn to do all both of the following:
(A) To develop Develop healthy physiologic responses.
(B) To benefit Benefit from the attachment and bonding that occurs during this period.
(10) Bonding between a newborn and parent during the postpartum period can improve conditions for other children and care providers in the same family unit and prevent child abuse and neglect.
(11) Bonding between a newborn and a parent can improve the overall health of the newborn and the parent and may prevent or reduce long-term health risks that may be increased by separating the newborn from the parent. For example:
(A) A postpartum person who does not breastfeed or chestfeed a newborn may have an increased likelihood of premenopausal breast cancer, ovarian cancer, or type 2 diabetes.
(B) A newborn who is not breastfed or chestfed may have an increased likelihood of childhood obesity, asthma, type 1 or type 2 diabetes, leukemia, or sudden infant death syndrome.
(C) A child who is separated from any a parent may experience stress hormones, which may lead to difficulty sleeping, developmental regression, heart disease, hypertension, obesity, diabetes, or decreased life span. lifespan. A newborn who is separated from a parent may also experience permanent architectural changes in the brain, including a lower intelligence quotient or an increased likelihood of depression, suicidal ideation, or addiction to alcohol or gambling.
(b) The Legislature finds, therefore, that all alternatives to prosecution, commitment, and incarceration of a pregnant or postpartum person must be considered, including a stay of criminal proceedings or sentencing to reduce the likelihood of negative health and social outcomes for the parent, newborn child, and community.

(c)It is the intent of the Legislature that a person who coerces or extorts a pregnant or postpartum person in the commission of crimes should be subject to being investigated and, as appropriate, prosecuted for a criminal act pursuant to this act.

(d)

(c) The Legislature declares that the definitions in Section 1565.1 of the Penal Code added by this act are from the federal Centers for Disease Control and Prevention and the National Institutes of Health.

SEC. 2.

 Chapter 6 (commencing with Section 1565.1) is added to Title 12 of Part 2 of the Penal Code, to read:
CHAPTER  6. California Women’s Care Act

1565.1.
 For the purposes of this chapter, the following definitions shall apply:
(a) “Newborn” means a person who has been born and who is less than one year of age.
(b) “Postpartum period” means a period of one year after the end of a pregnancy, regardless of whether the pregnancy ends with a live birth. the pregnancy outcome.
(c) “Pregnant or postpartum defendant” means a person who is pregnant or in a postpartum period who has been accused or convicted of a crime.
(d) “Stay of execution” means delaying the imposition of a sentence or the incarceration portion of the sentence for a pregnant or postpartum defendant after the sentence is announced by a court.

1565.2.
 (a) There is a rebuttable presumption against detention and incarceration of a pregnant or postpartum defendant if the defendant provides the court and district attorney with notice of the defendant’s status as a pregnant or postpartum defendant at each applicable stage of the proceedings. The court exercising its discretion under law shall apply the rebuttable presumption described in this subdivision to a pregnant or postpartum defendant in determining whether to do any of the following:
(1) Issue bail or own recognizance release pursuant to Chapter 1 (commencing with Section 1268) of Title 10.
(2) Accept a diversion agreement.
(3) Accept or continue a deferred entry of judgment.
(4) Imposing Impose a sentence, including whether to grant probation.
(5) Grant a stay of execution pursuant to this chapter.
(b) A court shall not use a pregnant or postpartum defendant’s pregnancy or postpartum period as a basis for imposing a greater restriction on the defendant’s liberty than a similarly situated defendant who is not pregnant or postpartum, including when if a pregnant or postpartum defendant has a substance use disorder.
(c) If the court decides to detain or incarcerate the pregnant or postpartum defendant after weighing the applicable legal standards and considerations set forth in this section, the court shall make specific findings on the record that the risk to public safety or any other factor the court is required to consider is substantial enough to outweigh the risk of incarceration.

1565.3.
 (a) A person who may be pregnant or postpartum who is arrested or in custody in a county jail or state prison may request a pregnancy test upon or following admission to the county jail or state prison. Staff at the county jail or state prison shall provide a pregnancy test upon request and allow the person to take the pregnancy test within 24 hours after the request.
(b) Requesting a pregnancy test, taking a pregnancy test, and the results of a pregnancy test are confidential medical information. This confidential medical information shall not be disclosed to outside parties unless the information is required for the person to receive medical care or to allow staff at the county jail or state prison to provide necessary care.
(c) If a person is represented by an attorney in a criminal proceeding and the county jail or state prison has a signed medical release from the person, the county jail or state prison shall give notice to the person’s attorney within 48 hours, excluding state holidays and weekends, concerning the person’s request for a pregnancy test pursuant to subdivision (a).

1565.4.
 (a) A pregnant or postpartum defendant may raise the issue of the defendant’s pregnancy or postpartum period at any time during criminal proceedings or while serving a sentence. If the pregnancy or postpartum period is raised, the pregnant or postpartum defendant shall provide notice to the district attorney by providing evidence of the pregnancy or the start of the postpartum period with a limited waiver of privilege. A positive pregnancy test or medical record confirming pregnancy or the end of pregnancy, or a birth certificate of a newborn, is prima facie evidence of pregnancy or the start of the postpartum period.
(b) If the prosecution contests that the defendant is pregnant or in a postpartum state, the court shall hold a hearing to make a determination as soon as practicable, but no later than 14 days after the issue is raised, unless the defendant requests the hearing be held later than 14 days after the issue is raised. If the defendant requests a later hearing, the court shall make the determination within the timeline requested. The court shall hold the hearing immediately if the circumstances of the defendant or the defendant’s newborn require it. The defendant shall prove, by a preponderance of the evidence, that the defendant is a pregnant or postpartum defendant.
(c) The court shall protect medical information provided to the court as confidential medical information. A defendant’s waiver of medical privilege to present medical evidence of pregnancy or the end of a pregnancy in court is limited to information relevant to determine whether the defendant is or was pregnant and whether the pregnancy has ended.

1565.5.
 (a) Any A pregnant or postpartum defendant may request a stay of execution by filing a written request to the court if the pregnant or postpartum defendant is detained or incarcerated in a county jail or state prison for any period of time through the end of the pregnancy or the postpartum period.
(b) The court shall hold a hearing to determine the matter as soon as practicable, but no later than 14 days after the pregnant or postpartum defendant requests a stay of execution, unless the pregnant or postpartum defendant requests a later hearing. If the pregnant or postpartum defendant requests a later hearing, the court shall make the determination within the timeline requested. The court shall hold the hearing immediately if the circumstances of the pregnant or postpartum defendant or newborn require it. The defendant shall prove, by a preponderance of the evidence, that the defendant is a pregnant or postpartum defendant.
(c) In ruling upon the pregnant or postpartum defendant’s request pursuant to subdivision (b) of this section, the court shall apply the rebuttable presumption set forth in subdivision (a) of Section 1565.2.
(d) The district attorney and the court shall comply with the requirements of Section 28 of Article 1 of the California Constitution in any a proceeding conducted pursuant to this chapter.
(e) Following the hearing conducted pursuant to subdivision (b), the court may order a stay of execution of the sentence for any period of time through the end of the pregnancy or the postpartum period. The court shall order a date, time, and place for the defendant to appear to serve the sentence upon completion of the stay of execution.
(f) If the court grants a stay of execution pursuant to subdivision (e), the court shall order the bail and the conditions of the bail to remain in effect until the date the pregnant or postpartum defendant is ordered to start serving the defendant’s sentence.
(g) Notwithstanding this section, a pregnant or postpartum defendant who is ineligible for bail is not eligible for a stay of execution.
(h) If the pregnant or postpartum defendant is charged with a new violation or the court receives a verified motion from the district attorney that establishes a prima facie case that the pregnant or postpartum defendant has violated the conditions of the stay of execution and presents a substantial risk to public safety, the court shall set a hearing and require the pregnant or postpartum defendant to appear. After the hearing, the court may end the stay of execution, add new conditions, issue a warrant, or continue the stay of execution.

SEC. 3.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.