BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 4 4 0 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? (More) SB 440 (Denham) PageB 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).) (More) SB 440 (Denham) PageC 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. (More) SB 440 (Denham) PageD (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. (More) SB 440 (Denham) PageE 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 (More) SB 440 (Denham) PageF 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).) (More) SB 440 (Denham) PageG 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). (More) SB 440 (Denham) PageH 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. (More) 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). (More) SB 440 (Denham) PageJ 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). SB 440 (Denham) PageK 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? ***************