BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 668 (Lieu)                                               
          As Amended May 26, 2010 
          Hearing date:  June 22, 2010
          Penal Code
          JM:dl
                                      TRESPASS: 

                    PRIOR COMMISSION OF CRIMES ON SUBJECT PROPERTY

                                           
                                       HISTORY

          Source:  Los Angeles County Sheriff

          Prior Legislation: AB 924 (Maldonado) - Ch. 101, Stats. 2003
                       SB 993 (Poochigian) - Ch. 805, Stats. 2003
                       SB 1486 (Schiff) - Ch. 563, Stats. 2000

          Support: California Grocers Association; California Retailers  
                   Association; California State Sheriffs' Association

          Opposition:None known

          Assembly Floor Vote:  No longer relevant




                                           
                                      KEY ISSUE
           
          UNDER EXISTING LAW, A PERSON WHO PREVIOUSLY COMMITTED A VIOLENT  
          FELONY AT A CERTAIN LOCATION IS GUILTY OF TRESPASS IF HE OR SHE  




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          RETURNS TO THE PROPERTY, INCLUDING PROPERTY GENERALLY OPEN TO  
          THE PUBLIC, AFTER BEING TOLD BY A PEACE OFFICER AT THE REQUEST  
          OF THE OWNER OR THE OWNER'S AGENT, AS SPECIFIED, NOT TO RETURN  
          OR REMAINS AFTER BEING TOLD TO LEAVE.
                                                                (CONTINUED)
                                                                 

          SHOULD A PERSON BE GUILTY OF TRESPASS IF THE PERSON PREVIOUSLY  
          COMMITTED ANY CRIME ON THE PROPERTY AND WAS TOLD NOT TO RETURN,  
          OR REMAINS ON THE PROPERTY AFTER BEING TOLD TO LEAVE?

                                          

                                       PURPOSE

          The purpose of this bill is to expand the crime of trespass to  
          include persons who, after having been convicted of  any  crime on  
          a particular property, go onto that property over the objections  
          of the owner, as specified.

           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 fine not 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:




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           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;
           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  




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          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  
          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 on the same land or any contiguous land of  
            the same landowner, without the permission of the landowner,  
            the landowner's agent, or the person in lawful possession of  
            the land, is an infraction punishable by a fine of $250; and,
           A third or subsequent offense on the same land or any  
            contiguous land of the same landowner, without the permission  
            of the landowner, the landowner's agent, or the person in  
            lawful possession of the land, is a six-month misdemeanor.   
            (Penal Code Section 602.8, subd. (a).)
          
           Existing law  provides that a person is guilty of trespass where  
          the person enters private property, whether or not the property  
          is open to the public, and the following circumstances apply:

                 The person has been previously convicted of a violent  
               felony on the property, as defined, and;
                 The owner, the owner's agent, or lawful possessor, has  
               requested a peace officer to inform the person that the  
               property is not open to him or her
                 The peace officer has informed the person that he or she  
               may not enter the property and informs the person that the  
               notice has been given at the request of the owner or other  
               authorized person.
                 A single specified notification shall be valid and  




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               enforceable unless and until rescinded by the owner or  
               other specified authorized person.
                 This form of trespass is also committed where the person  
               fails to leave the property upon being asked to do so as  
               provided in the subdivision defining the crime.  (Pen. Code  
               602, subd. (t).)

           This bill  provides that the form of trespass that is committed  
          where a person convicted of a violent felony that was committed  
          on particular private property returns to the property after  
          being told to leave or not to return is also committed where the  
          person has been convicted of  any  crime, including any felony,  
          misdemeanor or infraction.

          


                    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  
          -- 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 . .  




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               .  (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  
               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  






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               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:

               The problem this bill is trying to address deals  
               specifically with trespassing as it relates to crimes  
               committed on private property.  Law enforcement  
               agencies and both small and large retail businesses  
               have seen an increase in the number of repeat  
               offenders involved in shoplifting and petty theft in  
               local retail shops.  A common practice has been that  
               once a person has been arrested for shoplifting or  
               petty theft in a retail establishment, the retailer  
               can request that law enforcement admonish the person  
               that they are not welcome back into the establishment.  
                Normally after such a request, the arresting law  
               enforcement officer will comply and advise the  
               arrested person that they cannot return to the  
               ----------------------
          <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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               location. Unfortunately, this advisement has no  
               enforcement provision. So if a retailer recognizes a  
               person who they know has been advised not to return to  
               the establishment, there is nothing in code that makes  
               their return illegal, unless they have committed a  
               violent felony. 

               This bill would make it clear that when a person is  
               arrested and convicted of any crime upon a private  
               property, and that person refuses or fails to leave  
               the property after being informed by a peace officer  
               that they are not allowed on the property, then that  
               person can be arrested for trespassing.




          2.  The Term "Crime" Includes an Infraction or a Misdemeanor  

          The Penal Code provides that are three forms of crime: felony,  
          misdemeanor and infraction.  (Pen. Code  16.)  A felony is  
          punishable by more than one year in state prison and a maximum  
          fine of up to $10,000, unless another amount is specified.   
          (Pen. Code  17, subd. (a).) A misdemeanor is punishable by a  
          county jail term of up to one year and a maximum fine of $1,000.  
            (Pen. Code  18-19.)  An infraction is not punishable by  
          imprisonment.  The penalty for an infraction is generally a  
          fine, typically a maximum fine $250 for an infraction defined in  
          the Penal Code.  A jury trial is not available for an  
          infraction.  Indigent infraction defendants are not entitled to  
          counsel at public expense.  (Pen. Code  19.6-19.8.)













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          This bill would provide that a person who commits any crime on a  
          particular property, even property generally open to the public,  
          such as a store, restaurant or other public venue, is guilty of  
          trespass if he or she returns to the property after being told  
          not to return, or who remains on the property after being told  
          to leave.  Existing law limits this form of trespassing to cases  
          where the person told to leave had been previously convicted of  
          a violent felony.  

          The background and discussions with the sponsor indicate that  
          this bill is expected to be used by a store, where a person has  
          previously shoplifted.  Shoplifting can be charged as petty  
          theft, and if it appears that the defendant entered the store  
          with the intent to steal, second degree burglary.  Second degree  
          (non-residential) burglary is an alternate felony-misdemeanor  
          (wobbler) while petty theft is a misdemeanor.  A person who is  
          arrested for petty theft (theft of property worth no more than  
          $400) can be charged with an alternate felony-misdemeanor (petty  
          theft with a prior) if the person has been previously convicted  
          of petty theft or another specified theft offense, such a  
          robbery.  In addition, Penal Code Section 490.1, petty theft in  
          amount under $50 can be charged as an infraction.  

          Arguably, the only infraction that would be at issue as the bill  
          is intended to apply is petty theft of no more than $50.   
          Perhaps the intent of the author and the sponsor can be realized  
          by providing that the crime that triggers a trespass under  
          subdivision (t) of Section 602.8 must be a felony, a misdemeanor  
          or an infraction charged under Penal Code Section 490.1.

          SHOULD THIS BILL PROVIDE THAT A PERSON IS GUILTY OF TRESPASS IF  
          HE OR SHE RETURNS TO THE PLACE WHERE THE PERSON COMMITTED ANY  
          CRIME, NOT ONLY A VIOLENT FELONY, IF THE OWNER FORBIDS RETURN  
          AND THE PERSON RECEIVES NOTICE OF THE BAN, AS SPECIFIED?

          3.  Lifetime Ban - Concern over Restricting Access to Important  
            Services in the Community; Application to Young People Caught  
            Shoplifting  





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          The form of trespass committed by a violent felon who returns to  
          the place of the crime, in violation of notice not to return,  
          appears to be designed to protect persons who have been the  
          victims of traumatic crimes from having to face the perpetrator  
          in the same place where the event occurred.  Under existing law,  
          the exclusion of the perpetrator from the property where a  
          violent crime is permanent, unless and until the exclusion is  
          revoked by the owner of the property or other authorized person.

          Arguably, this bill changes the nature of this crime.  Should a  
          permanent exclusion from a specific piece of private property  
          apply where a person is convicted of a petty theft or another  
          relatively minor crime?  It is not uncommon for young people to  
          be arrested for petty theft in retail stores.  A single theft  
          could result in banishment from that store, even for life, under  
          the threat of criminal prosecution.  

          Perhaps the bill could be amended to provide for a limited  
          period of time a person would be banned from a place where a  
          crime was committed.  The author and the Committee may wish to  
          consider a five-year maximum term for a felony, a two-year  
          maximum term for a misdemeanor and a one-year maximum term for  
          petty theft prosecuted as an infraction under Section 490.1.

          SHOULD THE LAW PROVIDE WHAT IS ESSENTIALLY A LIFETIME BAN ON A  
          PERSON RETURNING TO THE PLACE WHERE A CRIME SUCH AS SHOPLIFTING  
          OCCURRED?  

          WHERE A PERSON HAS BEEN CONVICTED OF A CRIME OTHER THAN A  
          VIOLENT FELONY, SHOULD THE BILL PROVIDE FOR A LIMITED-TIME  
          EXCLUSION, DEPENDENT ON THE NATURE OF THE UNDERLYING CRIME?

          WOULD A REASONABLE OR ACCEPTABLE BAN ON RETURN TO THE PLACE  
          WHERE A CRIME OCCURRED INVOLVE A MAXIMUM OF FIVE YEARS FOR A  
          NON-VIOLENT FELONY, A MAXIMUM OF TWO YEARS FOR A MISDEMEANOR AND  
          A MAXIMUM OF ONE YEAR FOR PETTY THEFT OF LESS THAN $50 UNDER  
          PENAL CODE SECTION 490.1?


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