BILL ANALYSIS                                                                                                                                                                                                    







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

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          SB 440 (Denham)                                             
          As Amended April 2, 2009 
          Hearing date:  January 12, 2010
          Penal Code
          SM:mc

                                       VOTE ONLY
           

                       SENTENCING: SERIOUS AND VIOLENT FELONIES  

                                       HISTORY

          Source:  Crime Victims Action Alliance

          Prior Legislation: AB 426 (Galgiani) - 2007, failed passage in  
          Senate Public Safety
                       AB 1256 (Bermudez) - 2006, failed passage in Senate  
          Public Safety

          Support: Crime Victims United of California

          Opposition:                                            American  
          Civil Liberties Union (ACLU); Friends Committee on Legislation  
          of       California; California Attorneys for Criminal Justice;  
          Taxpayers for Improving                                Public  
          Safety


                                         KEY ISSUE
           
          SHOULD SPECIFIED OFFENSES BE ADDED TO THE "SERIOUS" AND "VIOLENT"  
          FELONY LISTS? 




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                                                            SB 440 (Denham)
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                                       PURPOSE

          The purpose of this bill is to (1) add the crimes of child abuse  
          likely to produce great bodily injury or death, physical child  
          abuse, killing, mutilating, or torturing a domestic animal,  
          elder abuse for which the defendant was incarcerated in state  
          prison, and escape or attempted escape by force or violence to  
          the lists of "serious felonies" as well as to the list of  
          "violent felonies," as specified; and (2) add the crimes of  
          human trafficking, stalking, solicitation to commit murder,  
          fleeing or attempting to elude a pursuing peace officer, willful  
          flight or attempting to elude a pursuing peace officer, and  
          felon in possession of a firearm, to the list of "serious  
          felonies," as specified.

           
          Existing law  provides that a defendant, who is convicted of  any   
          current felony, with prior convictions of two or more "violent"  
          or "serious" felonies, must receive a life sentence with a  
          minimum term of 25 years.  (Pen. Code  667, subds. (a) and  
          (d)(2)(i); Pen. Code  1170.12, subd. (c)(2)(A).)<1>

          Existing law  further provides that where a defendant is  
          convicted of  any  felony with a prior conviction for a single  
          serious or violent felony, the sentence imposed must be twice  
          the term otherwise provided as punishment.  (Pen. Code  667,  
          ---------------------------
          <1>  The minimum term for any defendant with two prior serious  
          or violent offenses must be at least 25 years.  In many cases,  
          multiple terms of 25-years-to-life must be imposed - one for  
          each count (separately charged offense) which does not arise  
          from the same operative facts in the current case.  Where  
          multiple convictions do arise from separate operative facts,  
          the court has discretion to impose consecutive or concurrent  
          terms.  (Penal Code  667(c)(6).)  According to a complex  
          formula, in a rare case, a different minimum term may be  
          imposed if it would result in a longer sentence than 25 years.  
           (Penal Code  667(d)(2)(A)(i-iii).)



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                                                            SB 440 (Denham)
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          subd. (d)(1);  Pen. Code  1170.12, subd. (c)(1).)

           Existing law  further provides that affected defendants may not  
          receive probation.  There is no limitation on the aggregate  
          term, sentencing credits are limited to 20 percent of the term  
          (instead of the usual 50 percent), and any additional  
          convictions must be imposed consecutively.  (Pen. Code  667,  
          subd. (c); Pen. Code  1170.12, subd. (a).)

           Existing law  provides that a person convicted of a violent  
          felony may reduce his or her prison sentence by no more than 15  
          percent through work and education sentence credits.  (Pen. Code  
           2933.1.)

           Existing law  provides that a defendant sentenced to a life term  
          under Three Strikes can earn no sentencing credits to reduce the  
          minimum term.  (In re Cervera (2001) 24 Cal.4th 1073.)

           Existing Three Strikes law , unlike five-year serious felony  
          enhancement provisions, does not require that prior qualifying  
          convictions arise in separate cases, and qualifying prior  
          "strike" convictions need not arise from separate transactions  
          that can otherwise not be separately punished.  (People v.  
          Fuhrman (1997) 16 Cal.4th 830; People v. Benson (1998) 18  
          Cal.4th 24, 30; Penal Code  667(a).)

           Existing law  provides that a juvenile adjudication (no jury  
          trial) of a sixteen-year old must be counted as a prior "strike"  
          if the offense otherwise qualifies as an adult strike or would  
          establish presumptive unfitness for juvenile court under Welfare  
          and Institutions Code Section 707(b), and the minor was declared  
          to be a ward of juvenile court for commission of an offense  
          listed in 


          Welfare and Institutions Code Section 707, subdivision (b).   
          (Pen. Code  667, subd. (d)(3); Pen. Code  1170.12, subd.  







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          (b)(3).)<2>

           Existing law  includes the following additional mandatory "Three  
          Strikes" provisions:

           A person sentenced under "Three Strikes" may not be committed  
            to any facility other than prison.
           "Three Strikes" prohibits plea-bargaining.
           "Three Strikes" has no "washout" period - any prior serious or  
            violent felony shall be charged regardless of when it  
            occurred.  However, Proposition 36 of the November 2000  
            election creates washout for defendants charged with  
            non-violent drug possession who have been free of crime or  
            custody for 5 years.
           Under "Three Strikes," the prosecuting attorney must plead and  
            prove each prior felony conviction.
           "Three Strikes" may only be amended by a two-thirds vote of  
            the Legislature or a ballot measure approved by the  
            electorate.

           Existing law  provides that where a defendant has been charged  
          with a serious felony, plea bargaining is prohibited unless the  
          prosecutor informs the court that there may be insufficient  
          evidence to prove the charge, or the plea agreement would not  
          result in a substantial change in sentence.  (Pen. Code   
          1192.7.)

           Existing law  includes numerous provisions that restrict or limit  
          the ability of persons convicted of serious or violent felonies  
          to receive specified benefits or to be employed in certain  
          ---------------------------
          <2>  There is substantial overlap among the lists of violent  
          felonies, serious felonies and crimes of presumptive juvenile  
          unfitness.  However, a few crimes, such as residential burglary  
          do not constitute unfitness crimes.  It must be noted that the  
          California Court of Appeal, 6th Appellate District has recently  
          held that a contested juvenile matter (tried to a judge) cannot  
          constitute a prior strike because the facts of the matter were  
          not found by a jury, thus violating the 6th Amendment to the  
          U.S. Constitution.  (People v. Nguyen H028798.)  This case will  
          very likely be reviewed by the California Supreme Court.



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          capacities.  Numerous other consequences flow from serious or  
          violent felony convictions.

           This bill  would add the following crimes to the list of "serious  
          felonies" described above: 

                 human trafficking; 
                 stalking; 
                 solicitation to commit murder; 
                 fleeing or attempting to elude a pursuing peace officer;  

                 willful flight or attempting to elude a pursuing peace  
               officer; and 
                 felon in possession of a firearm.

           This bill  would add the following crimes to both the list of  
          "serious felonies" and the list of "violent felonies" described  
          above:

                 child abuse likely to produce great bodily injury or  
               death; 
                 physical child abuse;
                 killing, mutilating, or torturing a domestic animal;
                 elder abuse for which the defendant was incarcerated in  
               state prison; and 
                 escape or attempted escape by force or violence.

                    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.<3>

          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  
               ----------------------
          <3>  "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.<4>

          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 appear to aggravate the prison overcrowding  
          crisis outlined above.

                                      COMMENTS

          1.   Need for This Bill  
          ---------------------------
          <4>  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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          According to the author:

                 Many crimes that can be considered serious and/or  
               violent are not included in the serious or violent sections  
               of the Penal Code.
                 The governor has mentioned early release of inmates who  
               are not designated as serious or violent[.]  [F]elonies  
               such as killing a child, killing or torturing an animal,  
               elder abuse and violent escape are certainly violent.   
               Similarly, felonies such as human trafficking, killing a  
               child, killing and torturing an animal, solicitation to  
               commit murder, willfully eluding a police officer, escape  
               by violence, or a felon in possession of a firearm are  
               serious and should be reflected as such in the Penal Code.
                 Adding these felonies to the serious and/or violent  
               sections of the Penal Code ensures that those who commit  
               the most egregious crimes are held appropriately  
               accountable for their actions - most notably through closer  
               parole supervision.
                 When determining prison and parole policies, the  
               definitions of serious and violent are often used as a way  
               to rate the most dangerous inmates, or those who might be  
               at most risk to re-offend.
                 Increasing parole supervision deters further crime,  
               lowers recidivism rates and in turn increases public  
               safety.

















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          2.  Costs of Adding Offenses to the List of Serious and Violent  
          Offenses
           
          Adding an offense to the list of crimes already specified as  
          "serious" or "violent" will create substantially longer prison  
          sentences for some offenders as a result of sentencing under the  
          Three Strikes law and several other statutes, as enumerated  
          above.  Proposition 21, enacted by initiative in 2000,  
          significantly increased the number of offenses included on the  
          serious or violent felony list.  The Secretary of State in its  
          March 2000 Voter Pamphlet stated that the fiscal cost of adding  
          several offenses to the list of serious or violent felonies was  
          an annual cost of $300 million.  The California Department of  
          Corrections and Rehabilitation placed the annual cost of a  
          non-elderly inmate in California at about $43,000.  (2007-2008  
          Budget Act, page CR6.)

          3.  Violent and Serious Felonies Defined  

          As originally enacted in 1994, the Three Strikes law defined  
          qualifying prior offenses as those felonies listed as "serious" or  
          "violent" on June 30, 1993.  (As noted above, a defendant with a  
          single qualifying prior offense receives a doubled term and, with  
          two prior qualifying offenses, receives a life sentence upon  
          conviction of any new felony.)  Proposition 21 of the March 2000  
          primary election added to the lists of serious and violent  
          felonies and defined qualifying prior strikes as felony listed as  
          serious or violent felonies as of March 8, 2000 - the date that  
          the Proposition 21 took effect.  For all practical purposes, all  
          "violent" felonies are "serious."  Thus the eligible "strikes" are  
          aptly demonstrated by the serious felony list, with additional  
          notations for violent offenses.  Serious and violent felonies, as  
          defined by Penal Code Section 667.5(b) and Section 1192.7, as they  
          existed after March 8, 2000, include the following completed  
          crimes and attempts:

                 Murder or voluntary manslaughter (violent).
                 Mayhem (serious, and violent if by force or threat of  
               retaliation).




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                 Rape (violent).
                 Sodomy by force, violence, duress, menace, or fear of  
               bodily injury (violent).
                 Oral copulation by force, violence, duress, menace, or  
               fear of bodily injury (violent).
                 Lewd act with child under fourteen years of age  
               (violent) and continuous sexual abuse of a child (violent).
                 Any felony punishable by death or life imprisonment  
               (violent).
                 Any felony in which defendant inflicts great bodily  
               injury or personally uses a firearm (violent).
                 Attempted murder (violent).
                 Assault with intent to commit a sex crime, robbery, or  
               mayhem (violent).
                 Assault with a deadly weapon on peace officer (serious).
                 Assault by life prisoner on a non-inmate (serious).
                 Assault with a deadly weapon by inmate (serious).
                 Arson (serious, and violent if structure was inhabited).
                 Exploding a destructive device with intent to injure  
               (serious).
                 Explosion causing great bodily injury or mayhem  
               (violent).
                 Explosion with intent to murder (violent).
                 Burglary of inhabited dwelling (serious, and violent if  
               another person other than an accomplice is present).
                 Robbery, bank robbery, or carjacking (violent).
                 Kidnapping (violent).
                 Inmate taking a hostage.
                 Attempted crime carrying a life sentence or death  
               penalty.
                 Any felony where defendant personally uses a dangerous  
               or deadly weapon.
                 Sale or furnishing heroin, cocaine, PCP, or  
               methamphetamine to a minor.
                 Forcible foreign object rape (violent in most cases).
                 Grand theft involving a firearm.
                 Any violation of 10-20-life firearm use and discharge  
               enhancement law (violent).
                 Any gang-related felony (violent if crime involves  
               extortion or witness intimidation).












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                 Maliciously throwing acid or flammable substances.
                 Witness intimidation.
                 Credible threats to kill or cause great bodily injury.
                 Discharge of a firearm at an inhabited dwelling,  
               vehicle, or aircraft.
                 Drive-by shooting.
                 Any conspiracy to commit a serious felony.

          4.  Redundancies in the Bill  

          Several of the crimes listed in this bill would already qualify as  
          "serious or violent felonies."  Because the lists of "serious" and  
          "violent" felonies already includes any felony in which the  
          defendant inflicts great bodily injury on anyone other than an  
          accomplice (Penal Code  667.5(c)(8); 1192.7(c)(8)), several of  
          the crimes listed in this bill would already be treated as  
          "serious" or "violent" felonies if they resulted in serious  
          injury.  

          SHOULD THESE OFFENSES BE ADDED TO THE "SERIOUS" AND "VIOLENT"  
          FELONY LISTS? 


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