BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 6 6 8 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 (More) AB 668 (Lieu) PageB 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 (More) AB 668 (Lieu) PageC 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: (More) AB 668 (Lieu) PageD 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 (More) AB 668 (Lieu) PageE 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 (More) AB 668 (Lieu) PageF 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 . . (More) AB 668 (Lieu) PageG . (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 (More) AB 668 (Lieu) PageH 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). (More) AB 668 (Lieu) PageI 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.) (More) 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 (More) AB 668 (Lieu) PageK 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? *************** AB 668 (Lieu) PageL