BILL ANALYSIS
AB 2054
Page 1
Date of Hearing: March 23, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2054 (Miller) - As Introduced: February 18, 2010
SUMMARY : Adds rape accomplished by an intoxicating substance
or rape of an unconscious person to the list of offenses for
which the defendant may only receive 15% work time credit, as
specified.
EXISTING LAW
1)Provides that for every six months of continuous
incarceration, a prisoner shall be awarded credit reductions
from his or her term of confinement of six months. A lesser
amount of credit based on this ratio shall be awarded for any
lesser period of continuous incarceration. Credit should be
awarded pursuant to regulations adopted by the Secretary of
CDCR. Prisoners who are denied the opportunity to earn
credits pursuant to existing law shall be awarded no credit
reduction pursuant to this section. Under no circumstances
shall any prisoner receive more than six-months' credit
reduction for any six-month period under this section. [Penal
Code Section 2933(b).]
2)States that any person convicted of a violent felony, as
specified, shall earn no more than 15% of work-time credit.
[Penal Code Section 2933.1(a).]
3)Provides that notwithstanding any other provision of law, any
person convicted of any specified felony, previously convicted
two or more times, and has previously served two or more
separate prior prison terms shall be ineligible to receive any
credits on his/her sentence. [Penal Code Section 2933.5(a).]
4)States that any person convicted of a "serious" or "violent"
felony, as specified, may receive credits not to exceed
one-fifth of the total term imposed and will not accrue until
the defendant is physically placed in state prison. [Penal
Code Section 667(c)(5).]
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5)States that any person convicted of certain sex offenses, as
specified, shall be punished by imprisonment in the state
prison for life and shall not be eligible for parole for 25
years. [Penal Code Section 667.61(a).]
6)Defines a "violent felony" as any of the following: murder or
voluntary manslaughter; mayhem; rape or spousal rape
accomplished by means of force or threats of retaliation;
sodomy by force or fear of immediate bodily injury on the
victim or another person; oral copulation by force or fear of
immediate bodily injury on the victim or another person; lewd
acts on a child under the age of 14 years, as defined; any
felony punishable by death or imprisonment in the state prison
for life; any felony in which the defendant inflicts great
bodily injury on any person other than an accomplice, or any
felony in which the defendant has used a firearm, as
specified; any robbery; arson of a structure, forest land, or
property that causes great bodily injury; arson that causes an
inhabited structure or property to burn; sexual penetration
accomplished against the victim's will by means of force,
menace or fear of immediate bodily injury on the victim or
another person; attempted murder; explosion or attempted
explosion of a destructive device with the intent to commit
murder; explosion or ignition of any destructive device or any
explosive which causes bodily injury to any person; explosion
of a destructive device which causes death or great bodily
injury; kidnapping; assault with intent to commit mayhem,
rape, sodomy or oral copulation; continuous sexual abuse of a
child; carjacking, as defined; rape or penetration of genital
or anal openings by a foreign object; felony extortion;
threats to victims or witnesses, as specified; first degree
burglary, as defined, where it is proved that another person
other than an accomplice, was present in the residence during
the burglary; use of a firearm during the commission of
specified crimes; and, possession, development, production,
and transfers of weapons of mass destruction.
7)Defines a "serious felony" as any of the following: murder or
manslaughter; mayhem; rape; sodomy; oral copulation; lewd acts
on a child under the age of 14; any felony punishable by death
or imprisonment for life; any felony in which the defendant
inflicts great bodily injury; attempted murder; assault with
the intent to commit rape or robbery; assault with a deadly
weapon or instrument on a peace officer; assault by a life
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prisoner on a non-inmate; assault with a deadly weapon by an
inmate; arson; exploding a destructive devise with the
intention to commit murder or great bodily injury;
first-degree burglary; armed robbery or bank robbery;
kidnapping; holding of a hostage by a person confined to a
state prison; attempting to commit a felony punishable by
death or life in prison; any felony where the defendant
personally used a dangerous or deadly weapon; selling or
otherwise providing heroin, PCP or any type of
methamphetamine-related drug; forcible sexual penetration;
grand theft involving a firearm; carjacking; assault with the
intent to commit mayhem, rape, sodomy or forcible oral
copulation; throwing acid or other flammable substance;
assault with a deadly weapon on a peace officer; assault with
a deadly weapon on a member of the transit authority;
discharge of a firearm in an inhabited dwelling or car; rape
or sexual penetration done in concert; continuous sexual abuse
of a child; shooting from a vehicle; intimidating a victim or
witness; any attempt to commit the above-listed crimes except
assault or burglary; and using a firearm in the commission of
a crime and possession of weapons of mass destruction. [Penal
Code Section 1192.7(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "There are means
of accomplishing rape. All involve sexual intercourse where
the victim does not consent. All forms are punished equally.
All are deemed 'serious' felonies under the law 1192.7(c)(3).
Where the crime is accomplished by force, it is deemed to be a
'violent' felony under Penal Code 667.5(c)(3) and the offender
receives good time credits under Section 2933.1. This section
creates a limit of 15% credit and the offender must serve 85%
of their sentence. Where the felony is accomplished against a
victim that is unable to consent because of mental or physical
disability, intoxication, or unconsciousness, the crimes are
not currently deemed to be "violent" even though they also
involve non-consensual sexual intercourse.
"Therefore, the offender receives 50% credit. Since all crimes
are equally punished the offender should not receive an
additional benefit because he accomplishes the task by
rendering the victim unconscious."
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2)"Violent Felonies" and Limited Custody Credits : Prior to
January 2010, a defendant sentenced to state prison will serve
50% of his or her sentence if he or she is enrolled in a
vocational or educational program and assuming there are no
discipline infractions. (Penal Code Section 2933.) However,
if a defendant was sentenced to prison for a "violent felony",
he or she may only accrue 15% credit. [Penal Code Section
2933.1(a).] If a person is sentenced for murder, no credit is
applied to his or her sentence. [Penal Code Section
2933.2(a).]
Penal Code Section 667.5(c) defines a "violent felony" as:
murder or voluntary manslaughter; mayhem; rape or spousal rape
accomplished by means of force or threats of retaliation;
sodomy by force or fear of immediate bodily injury on the
victim or another person; oral copulation by force or fear of
immediate bodily injury on the victim or another person; lewd
acts on a child under the age of 14 years, as defined; any
felony punishable by death or imprisonment in the state prison
for life; any felony in which the defendant inflicts great
bodily injury on any person other than an accomplice, or any
felony in which the defendant has used a firearm, as
specified; any robbery; arson of a structure, forest land, or
property that causes great bodily injury; arson that causes an
inhabited structure or property to burn; sexual penetration
accomplished against the victim's will by means of force,
menace or fear of immediate bodily injury on the victim or
another person; attempted murder; explosion or attempted
explosion of a destructive device with the intent to commit
murder; explosion or ignition of any destructive device or any
explosive which causes bodily injury to any person; explosion
of a destructive device which causes death or great bodily
injury; kidnapping; assault with intent to commit mayhem,
rape, sodomy or oral copulation; continuous sexual abuse of a
child; carjacking, as defined; rape or penetration of genital
or anal openings by a foreign object; felony extortion;
threats to victims or witnesses, as specified; first degree
burglary, as defined, where it is proved that another person
other than an accomplice, was present in the residence during
the burglary; use of a firearm during the commission of
specified crimes; and, possession, development, production,
and transfers of weapons of mass destruction.
Penal Code Section 2933.1 does not list which particular
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offenses will receive only 15% credit, the section cross
references the "violent felony" list. If it is the intent of
the author to limit credits for inmates sentenced for the rape
of an unconscious person or with use of a controlled
substance, consistent statutory construction demands adding
Penal Code Section 261(a)(3) and (4) to the list of violent
felonies.
3)Changes to Credits in SBx3 18 : Given California's precarious
budget situation, both the Governor and the Legislature have
sought to remedy prison overcrowding and increasing
corrections costs. SBx3 18 (Budget Committee), Chapter 28,
Statutes of 2009, made several changes to how inmates earn
credits in hopes of addressing not just prison costs, but a
looming federal prisoner release order. Prior to SBx3 18,
inmates who were confined to county jail but ultimately
sentenced to state prison received one-third credit on county
jail time and 50% credit on state prison time. Now, inmates
who will ultimately serve a state prison sentence receive 50%
custody credit for time served in the county jail prior to
conviction and sentencing as well. Also, prior to the changes
in custody credits, inmates had to at least be enrolled in
vocational and/or educational programs.
4)Prior Legislation :
a) AB 221 (Bogh), of the 2005-06 Legislative Session,
stated that every person convicted of a sexually violent
felony, as specified, shall be ineligible to earn credits
on his or her term of imprisonment. AB 221 failed passage
in this Committee.
b) SB 1660 (Poochigian), of the 2003-04 Legislative
Session, proposed the California Department of Corrections
determine whether to sanction willful inmate failure to
complete specific programs by the denial of time credits.
SB 1660 was held on the Assembly Appropriations Committee's
Suspense File.
c) AB 300 (Simitian), of the 2001-02 Legislative Session,
proposed limiting custody credits to no more than 20% of
the actual time served for any person convicted under the
"Three-Strikes" law while in the county jail awaiting
trial. AB 300 was held on the Assembly Appropriations
Committee's Suspense File.
AB 2054
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REGISTERED SUPPORT / OPPOSITION :
Support
Police Officers Research Association of California
Opposition
Legal Services for Prisoners with Children
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744