BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 451 (Portantino)
As Amended May 28, 2010
Hearing date: June 22, 2010
Penal Code
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TRESPASS:
UNAUTHORIZED ENTRY OF AN EVENT CLOSED TO THE PUBLIC
HISTORY
Source: Screen Actors Guild
Prior Legislation: SB 993 (Poochigian) - Ch. 805, Stats. 2003
SB 936 (Reyes) - Ch. 355, Stats. 2003
AB 1263 (Benoit) - Ch. 361, Stats. 2003
Support: Unknown
Opposition:None known
Assembly Floor Vote: No longer relevant
KEY ISSUES
SHOULD A NEW FORM OF TRESPASS BE DEFINED THAT IS COMMITTED WHERE
A PERSON, WITHOUT AUTHORIZATION, KNOWINGLY ENTERS OR REMAINS AT
AN EVENT NOT OPEN TO THE PUBLIC, IF THE AREA HAS BEEN POSTED SO
AS TO GIVE REASONABLE NOTICE RESTRICTING ACCESS TO AUTHORIZED
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GUESTS AND PERSONS WITH LAWFUL BUSINESS?
(CONTINUED)
SHOULD REASONABLE NOTICE BE DEFINED AS THAT WHICH WOULD GIVE ACTUAL
NOTICE TO A REASONABLE PERSON, AND IS POSTED AT EACH AUTHORIZED
ENTRANCE?
PURPOSE
The purpose of this bill is to define a new form of trespass
that is committed where a person, without authorization,
knowingly enters or remains at an event that is closed to the
public under circumstances where reasonable notice of restricted
access has been posted.
Existing law includes numerous provisions defining various
forms of trespass and applicable penalties. Crime definitions
and penalties typically turn on whether any damage has been
done to property and whether the trespasser refuses a valid
request to leave the land. (Pen. Code 602-607.)
Existing law provides that any person is guilty of a
misdemeanor, punishable by a county jail term of up to 6
months, a fine of up to $1000 or both, who enters any other
person's cultivated or fenced land, or who enters uncultivated
or unenclosed lands where signs forbidding trespass are
displayed at intervals not less than three to the mile along
exterior boundaries and at all roads and trails entering the
lands without written permission, and does any of the
following:
Refuses or fails to leave immediately upon being requested to
do so by the owner, owner's agent or by the person in lawful
possession, or
Tears down, mutilates, or destroys any sign or notice
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forbidding trespass or hunting;
Removes or tampers with any lock on any gate on or leading
into the lands; or
Discharges a firearm. (Pen. Code 602, subd. (k).)
Existing law generally provides that a person commits one form
of trespass to cultivated, fenced or posted land, where he or
she, without the written permission of the landowner, the
owner's agent or of the person in lawful possession of the land:
Willfully enters any lands under cultivation or enclosed by
fence, belonging to, or occupied by another person; or,
Willfully enters upon uncultivated or unenclosed lands where
signs forbidding trespass are displayed at intervals not less
than three to the mile along all exterior boundaries and at
all roads and trails entering the lands. (Pen. Code 602.8,
subd. (a).)
Existing law provides that trespassing - in circumstances other
than where the person refuses a valid order to leave the
premises, destroys a no-trespassing or no-hunting sign, tampers
with any lock, or discharges a firearm - is an infraction or a
misdemeanor, as follows:
First offense is an infraction, punishable by a fine of $75.
(Pen. Code 602.8, subd. (b)(1).)
Second offense on any contiguous land of the same owner is an
infraction, punishable by a fine of $250. (Pen. Code 602.8,
subd. (b)(2).)
A third or subsequent offense on any contiguous land of the
same owner is a misdemeanor punishable by imprisonment in the
county jail not exceeding 6 months; by a fine not to exceed
$1000; or both. (Pen. Code 602.8, subd. (b)(3).)
Existing law includes the following exceptions to the
trespassing law in Section 602.8:
A person who is conducting lawful union activities;
A person who is on the premises and engaging in activities
protected by the California or United States Constitution;
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A person making lawful service of process;
An appropriately licensed person engaged in land surveying.
Existing law states that it is a misdemeanor punishable by six
months in county jail for every person who willfully enters any
lands under cultivation or enclosed by fence, belonging to, or
occupied by, another, or entering upon uncultivated or
unenclosed lands where signs forbidding trespass are displayed
at intervals not less than three to the mile along all exterior
boundaries and at all roads and trails entering the lands
without the written permission of the owner of the land, the
owner's agent or of the person in lawful possession and:
Refuses or fails to leave the lands immediately upon being
requested by the owner of the land, the owner's agent or by
the person in lawful possession to leave the lands;
Tears down, mutilates, or destroys any sign, signboard, or
notice forbidding trespass or hunting on the lands;
Removes, injures, unlocks, or tampers with any lock on any
gate on or leading into the lands; or,
Discharges any firearm. (Pen. Code 602, subd. (l).)
Existing law provides that any person who willfully enters and
occupies real property or structures of any kind without the
consent of the owner, the owner's agent, or the person in lawful
possession, is guilty of a misdemeanor. (Pen. Code 602, subd.
(m).)
Existing law allows for prosecution against those who refuse or
fail to leave land, real property, or structures belonging to or
lawfully occupied by another and not open to the general public,
upon being requested to leave by a peace officer at the request
of the owner, the owner's agent, or the person in lawful
possession, and upon being informed by the peace officer that he
or she is acting at the request of the owner, the owner's agent,
or the person in lawful possession or the owner, the owner's
agent, or the person in lawful possession. (Pen. Code 602,
subd. (o).)
Existing law provides that any person who, without the written
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permission of the landowner, the owner's agent, or the person in
lawful possession of the land, willfully enters any lands under
cultivation or enclosed by a fence, belonging to, or occupied
by, another, or who willfully enters upon uncultivated or
unenclosed lands where signs forbidding trespass are displayed
at intervals not less than three to the mile along all exterior
boundaries and at all roads and trials entering lands, is guilty
of a public offense punishable as follows:
A first offense is an infraction punishable by a fine of $75;
A second offense is an infraction punishable by a fine of
$250; and,
A third or subsequent offense is a misdemeanor. (Penal Code
602.8.)
This bill defines a new form of trespass that is committed where
a person knowingly enters or remains at an event not open to the
general public without authorization from the person lawfully in
possession of the property, if the area has been posted so as to
give reasonable notice restricting access to authorized guests
and persons with lawful business therein. Reasonable notice is
that which would give actual notice to a reasonable person, and
is posted at each authorized entrance.
This bill provides that this new form of trespass is a
misdemeanor, punishable for a first offense by a jail term of up
to six months, a fine of up to $1,000, or both. Upon a second
or subsequent conviction, the maximum fine is $2,000.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
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-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
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state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
AB 451 is sponsored by the Screen Actors Guild (SAG)
and addresses a problem they have had with "party
crashers" at their official functions or events.
SAG had some event-crashers at the SAG Awards Show in
January of this year. Several individuals were able
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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to gain unauthorized access to the event and security
was able to identify them quickly remove them from the
premises. The Academy Awards and other awards events
have also experienced unauthorized attendance at
events that are not open to the public.
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In this instance, SAG made a citizen's arrest and held
the trespassers until the Los Angeles Police
Department showed up to take them away. Due to a
technical flaw contained in specific portions of
existing California law relating to trespass, the Los
Angeles City Attorney was not able to prosecute these
individuals.
Penal Code Section 602 covers trespassing under
numerous specific instances that specify the acts that
constitute the crime of trespass. Because of how this
code section is written, none of these definitions are
adequate to uniformly support a charge of trespass for
"gate crashers."
AB 451 will provide a method to keep unauthorized
individuals from attending events that are closed to
the public. To constitute a trespass the bill
requires the area to be posted so as to give
reasonable notice restricting access to authorized
guests and persons with lawful business to pursue
therein. Reasonable notice is that which would give
actual notice to a reasonable person, and is posted at
each authorized entrance.
2. Trespass Law Complexity
Development of Trespass Law, Recently Defined Forms of Trespass
California trespass law is complex. It appears that the
trespass laws were initially intended to address, and perhaps
reduce or eliminate, disputes about rural land. Witkin notes
that "nearly all of [the various crime provisions in the
statute] relate to destruction or taking" of property. Thus,
the trespass law has traditionally not addressed simple
unauthorized entry, without some additional harm intended or
caused by the person entering the property.
The various forms of trespass have been drafted with detailed and
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specific elements. For example there are forms of trespass for
entering land to cut down wood, to carry away wood, to destroy or
carry away oysters, opening a gate and leaving it open without
the consent of the owner.
Thus, there is no true general form of trespass. Each form of
trespass must be specifically stated. The main trespass statute
- Penal Code Section 602 - actually is a collection of many
separate crimes. The section has been amended relatively
frequently in recent years to address unique circumstances that
were not specifically addressed in the law. In 2003, a new form
of trespass was defined for entering lands where animals are
being bred. Another form of trespass defined in 2003 concerned
entering a maternity ward without consent, and another bill
defined a new form of trespass for entering the secure portion
of an airport.
Trespass and Private Events Under Existing Law
One form of trespass that would apply at a business or event is
described in Penal Code Section 602, subdivision (k). This form
of trespass is committed where a person enters property with the
intention of injuring property or property rights, or for
interfering with or obstructing business of the owner or persons
in lawful possession. Thus, if someone merely enters an event
and does not interfere with those legitimately running or
attending the event, a crime has arguably not been committed.
Another form of trespass that would apply at an event is
described in Penal Code Section 602, subdivision (o). This form
of trespass is committed where a person refuses to leave land or
a building that is not generally open to the general public upon
being requested to leave by a peace officer at the request of
the owner, owner's agent or person in lawful possession of the
property. The crime also applies where the person refuses to
leave after being requested to do so by the owner, the owner's
agent or a person in lawful possession.
3. Trespass Under this Bill is Based Solely on Unauthorized Entry
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and Does not Require that the Defendant Refused a Request to
Leave: Proportionality and Punishment Issues
It would appear that in the SAG event described in the author's
statement, SAG representatives made a citizen's arrest of the
party crashers based solely on the unauthorized entry of the
party. The statement appears to imply that the party crashers
did not refuse to leave the party when requested. Arguably, if
the persons refused a request that they leave the event, they
were guilty of trespassing under Section 602, subdivision (o).
It can be argued that failing to leave a building or event upon
request is a more egregious offense than simply entering an
event without an invitation. If the uninvited person interfered
with the event or intended to injure property, the person would
be guilty of trespass under existing law.
SHOULD A NEW FORM OF TRESPASS BE DEFINED THAT IS COMMITTED WHERE
A PERSON ENTERS AN EVENT THAT IS NOT OPEN TO THE PUBLIC UNDER
CIRCUMSTANCES WHERE SIGNS PROHIBITING ENTRY HAVE BEEN POSTED?
SHOULD THE NOTICE PROHIBITING ENTRY ALSO CLEARLY STATE THAT THE
PERSON WHO ENTERS THE EVENT COULD BE PROSECUTED FOR A
MISDEMEANOR?
WHERE A PERSON IS PROSECUTED FOR UNAUTHORIZED ENTRY OF A CLOSED
EVENT, AND THE PERSON DID NOT REFUSE TO LEAVE WHEN REQUESTED TO
DO SO, SHOULD THIS OFFENSE BE AN INFRACTION OR AN
INFRACTION-MISDEMEANOR FOR A FIRST OFFENSE, RATHER THAN A
MISDEMEANOR?
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