BILL ANALYSIS                                                                                                                                                                                                    







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

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          SB 174 (Strickland)                                         
          As Amended April 22, 2009
          Hearing date:  April 28, 2009
          Business and Professions Code; Civil Code; Code of Civil  
          Procedure;
          Government Code; Health and Safety Code; Penal Code; Welfare and  
          Institutions Code
          MK:mc

                                     PUBLIC SAFETY  

                                       HISTORY

          Source:   California District Attorneys Association

          Prior Legislation: SB 1241 (Margett) - Ch. 699, Stats. 2008
                       SB 425 (Margett) - Ch. 302, Stats. 2007
                       SB 1422 (Margett) - Ch. 901, Stats. 2006
                       SB 1107 (SCoPS) - Ch. 279, Stats. 2005
                       SB 1796 (SCoPS) - Ch. 405, Stats. 2004
                       SB 851 (SCoPS) - Ch. 468, Stats. 2003
                       SB 1852 (SCoPS) - Ch. 545, Stats. 2002
                       SB 485 (SCoPS) - Ch. 473, Stats. 2001
                       SB 832 (SCoPS) - Ch. 853, Stats. 1999
                       SB 1880 (SCoPS) - Ch. 606, Stats. 1998

          Support: Unknown

          Opposition:None known
           
          (THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS: SEE COMMENT 10.)






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                                         KEY ISSUE
           
          SHOULD TECHNICAL AND CORRECTIVE CHANGES BE MADE IN VARIOUS CODE  
          SECTIONS RELATING GENERALLY TO CRIMINAL JUSTICE LAWS, AS  
          SPECIFIED?


                                       PURPOSE

          The purpose of this bill is to make technical and corrective  
          changes to various code sections relating generally to criminal  
          justice laws, as specified.
          
           Existing law  provides that the Attorney General shall maintain  
          summary criminal history information and shall furnish the  
          information to specified persons.  (Penal Code  11105.)

           Existing law  provides that the Department of Justice shall make  
          a determination whether an explosives permit can be granted to a  
          person.  (Health and Safety Code  12101.)

           This bill  makes it clear that the Department of Justice can  
          provide subsequent arrest and conviction information to the  
          permit issuing authority if the applicant becomes ineligible.

           Existing law  requires people convicted of specified sex  
          offenders to register with local authorities including people  
          who are transients.  (Penal Code  290 et. seq.)

           This bill  clarifies that if a transient convicted in another  
          jurisdiction enters the state, he shall register within five  
          working days of coming into California with the chief of police  
          of the city in which he or she is present, or the sheriff of the  
          county, if he or she is present in an unincorporated area or  
          city that has no police department.

           Existing law  provides that any person who receives money for the  
          purpose of obtaining or paying for services, labor, materials or  
          equipment and willfully fails to apply such money for such  
          purpose by either willfully failing to complete the improvement  




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          for which funds were provided or willfully failing to pay for  
          services, labor, materials or equipment provided incident to  
          such construction, and wrongfully diverts the funds to a use  
          other than that for which the funds were received shall be  
          guilty of a wobbler, if the amount diverted is in excess of  
          $1,000 and by a misdemeanor if the amount is less than $1,000.   
          (Penal Code  484.)

           This bill  clarifies that if the amount diverted is $1,000 or  
          less, it is punishable as a misdemeanor. 

           Existing law  provides that in order for a person to be certified  
          to roll fingerprints for non-law enforcement purposes, the  
          applicant must submit a copy of his or her fingerprints along  
          with a notarized written application.  (Penal Code   
          11102.1(d)(3).)

           This bill  deletes the requirement that the application be  
          notarized.

           Existing law  provides that every public agency or bona fide  
          research body immediately concerned with the prevention or  
          control of crime, the quality of criminal justice, or the  
          custody or correction of offenders may be provided with such  
          criminal offender record information as is required for the  
          performance of its duties, provided that any material  
          identifying individuals is not transferred, revealed, or used  
          for other than research or statistical activities and reports or  
          publications derived therefrom do not identify specific  
          individuals, and provided that such agency or body pays the cost  
          of processing of such data as determined by the Attorney  
          General. (Penal Code  13202.)

           This bill  clarifies that the Department of Justice may release  
          specified identifying information to public agencies and  
          research bodies.

           Existing law  provides that a law enforcement agency shall  
          release, upon request, a complete copy of a juvenile police  
          record without notice or consent from the person who is the  




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          subject of the juvenile police record only to specified persons  
          or entities including other California law enforcement agencies  
          including the office of the Attorney General of California, any  
          district attorney, the Department of Corrections, the Department  
          of the Youth Authority, and any peace officer as specified.   
          (Welfare and Institutions Code  827.9(b)(1).)

           This bill  allows this information to be shared with law  
          enforcement in other states.

           Existing law  provides no employee or agent of the Department of  
          Corrections and Rehabilitation, the Board of Parole Hearings, or  
          State Department of Mental Health shall disclose to any person  
          the name, address, telephone number, or other identifying  
          information of a person who was involved in a civil commitment  
          hearing under this article as a victim of a sex offense except  
          where authorized or required by law.  (Welfare and Institutions  
          Code  6603.5.)
           
          This bill  deletes a couple of outdated report requirements.   
          (Penal Code  290.4(g), 290.46(n).)  

          This bill  makes technical changes to the following: Business and  
          Professions Code section 21606.5; Civil Code section 1670.7;  
          Code of Civil Procedure section 1219(a); Government Code section  
          27388(a); Penal Code sections 290.46(b)(2)(S), 1094, 12076(b)(3)  
          &(c)(2), 12650, 13010(g); and Welfare and Institutions Code  
          section 1767.35(b).
                                          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  




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          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.

                                      COMMENTS

          1.  Purpose of This Bill
          ---------------------------
          <2>  Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).



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          This is the annual omnibus bill.  In past years, the omnibus  
          bill has been introduced by all members of the Committee on  
          Public Safety.  This year, Senator Strickland is carrying the  
          bill.  This bill is similar to the ones introduced as Committee  
          bills in the past, in that it has been introduced with the  
          following understanding:

                 The bill's provisions make only technical or minor  
               changes to the law; and
                 There is no opposition by any member of the Legislature  
               or recognized group to the proposal.
           
          This procedure has allowed for introduction of fewer minor bills  
          and has saved the Legislature time and expense.  The following  
          bills had the same intent as this bill:

                 SB 1241 (Margett) - Ch. 699, Stats. 2008
                 SB 425 (Margett) - Ch. 302, Stats. 2007
                 SB 1422 (Margett) - Ch. 901, Stats. 2006
                 SB 1107 (Senate Committee on Public Safety) - Ch. 279,  
               Stats. 2005
                 SB 1796 (Senate Committee on Public Safety) - Ch. 405,  
               Stats. 2004
                 SB 851 (Senate Committee on Public Safety) - Ch. 468,  
               Stats. 2003
                 SB 1852 (Senate Committee on Public Safety) - Ch. 545,  
               Stats. 2002
                 SB 485 (Senate Committee on Public Safety) - Ch. 473,  
               Stats. 2001
                 SB 832 (Senate Committee on Public Safety) - Ch. 853,  
               Stats. 1999
                 SB 1880 (Senate Committee on Public Safety) - Ch. 606,  
               Stats. 1998

          2.   Amendment to Health and Safety Code Section 2101

           Currently, subsequent arrest and conviction information is not  
          provided for explosives permit holders under Health and Safety  
          Code section 12101.  The change in this bill will allow the DOJ  




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          to provide such information to local agencies.  
           
          3.    Amendment to Penal Code Section 290.011
           
          The Sex Offender Registration Act (SORA - Penal Code   
          290-290.023) requires that offenders convicted in other  
          jurisdictions must register in California if certain  
          requirements set out in Penal Code section 290.005 are met.   
          However, the statute needs to be clarified regarding the duty to  
          register transient sex offenders who come into the state from  
          other jurisdictions.  While it is clear that a sex offender from  
          another jurisdiction who moves into a residence has 5 working  
          days to register (Penal Code  290(b)), it is not clear that  
          such an offender who is transient has 5 working days after  
          entering California to register, wherever he or she is located  
          on that date.  This amendment clarifies the duty of such a  
          transient sex offender to register. 

           4.   Amendment to Penal Code Section 484b  

          Penal Code section 484b (Diversion of Construction Funds) makes  
          it an alternate felony/misdemeanor to divert in excess of $1,000  
          in construction funds.  The statute also makes it a misdemeanor  
          to divert less than $1,000 in construction funds.  It thus fails  
          to address a diversion of $1,000 exactly.  The statute should be  
          amended to make it a misdemeanor to divert $1,000 or less in  
          construction funds.  

















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          5.    Amendment Penal Code Section 11102.1(d)(3)  

          In order for a person to be certified to roll fingerprint images  
          for non-law enforcement purposes, the applicant must submit a  
          copy of his or her fingerprints along with a notarized written  
          application.  This notarization requirement is unique to this  
          application type and is redundant in light of the fact that  
          fingerprints must be submitted along with the application.  This  
          requirement should be deleted.
           
          6.   Amendment Penal Code Section 13202  

          Penal Code sections 11105 (g), 13305(a) and 13202 conflict  
          regarding the use of criminal history information for research  
          purposes.  While sections 11105(g) and 13305(a) specifically  
          state that it is a violation of law to release the identity of  
          the subject of a record, section 13202 states that certain  
          public agencies and bona fide research bodies are authorized to  
          receive personal identifiable information on the subject of a  
          record.  This amendment clarifies that the Department of Justice  
          may release identifying information to public agencies and  
          research bodies.
            
           7.   Amendment to Welfare and Institutions Code Section  
          827.9(b)(1)  

          This proposal seeks to amend California Welfare and Institutions  
          Code section 827.9(b)(1) to allow for vital information sharing  
          with other law enforcement agencies in neighboring states. Over  
          the last few years, we have seen a tremendous increase in the  
          number of gang members who are living, or now residing in  
          neighboring states such as in Las Vegas, Nevada, Phoenix, and  
          Arizona.  Some of these gang members are juveniles.  In an  
          effort to better communicate and information share with other  
          law enforcement agencies, we have developed a computer  
          information sharing system called CopLink that will assist law  
          enforcement with information sharing.  The problem law  
          enforcement has run into is that the Welfare and Institutions  
          Code section 827.0 (b)(1) only allows law enforcement to share  




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          information on juveniles to "California" law enforcement  
          agencies, which means that California's neighboring states that  
          share information with our law enforcement cannot get access to  
          California information or databases.  The proposal also makes  
          two other technical, non substantial, changes to that section.
           
           
           8.    Amendment to Welfare and Institutions Code Section 6603.5
           
          Last year, AB 2410 (Stats. 2008 Chapter 155) was enacted.  The  
          amended statute ensures the protection of the name, address,  
          telephone number, or other identifying personal information of  
          victims and witnesses from being released to a respondent,  
          his/her family, or anyone else in Sexually Violent Predator  
          petitions.  In drafting the regulations to implement the  
          provisions of AB 2410, the Board of Parole Hearings and the  
          Department of Mental Health requested more explicit authority  
          than what is granted in Welfare and Institutions Code sections  
          6601(d) and (h) to authorize the release of information to the  
          district attorney (prosecuting attorney).  This amendment  
          expressly addresses the release of this information to the  
          prosecuting attorney. 

          9.    Other Changes  

          As noted in the Purpose section of this analysis, other changes  
          in this bill are technical, grammatical, or nonsubstantive  
          changes.

          10.   Delete Changes to Penal Code Section 830.1c  

          As it leaves Committee, this bill will be amended to delete the  
          changes to Penal Code Section 830.1c.


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