BILL NUMBER: SB 1266 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 18, 2010
AMENDED IN ASSEMBLY AUGUST 3, 2010
AMENDED IN SENATE MAY 19, 2010
AMENDED IN SENATE MAY 11, 2010
AMENDED IN SENATE APRIL 20, 2010
AMENDED IN SENATE MARCH 23, 2010
INTRODUCED BY Senator Liu
(Principal coauthor: Assembly Member Bonnie Lowenthal)
(Coauthors: Senators Hancock, Leno, Negrete McLeod, and Pavley)
(Coauthors: Assembly Members Beall, Evans, Saldana, Skinner, and
Yamada)
FEBRUARY 19, 2010
An act to amend Section 4532 of, and to add Section 1170.05 to,
the Penal Code, relating to inmates.
LEGISLATIVE COUNSEL'S DIGEST
SB 1266, as amended, Liu. Inmates: alternative custody.
Existing law provides a system of prisons under the Department of
Corrections and Rehabilitation to house inmates committed to state
prison for felonies.
This bill would authorize the Secretary of the Department of
Corrections and Rehabilitation to offer a program under which female
inmates, pregnant inmates, or inmates who, immediately prior to
incarceration, were primary caregivers of dependent children, as
defined, who are committed to state prison may be allowed to
participate in a voluntary alternative custody program in lieu of
confinement in state prison. The bill would define an alternative
custody program to include confinement to a residential home, a
residential drug or treatment program, or a transitional care
facility that offers appropriate services. The bill would authorize
the department to enter into contracts with county agencies,
not-for-profit organizations, for-profit organizations, and others in
order to promote alternative custody placements. The bill
would require the department to determine, or to contract with a
research entity to determine, the cost effectiveness of each
alternative custody program. The bill woul
d require the department to determine the recidivism rate of each
participant in an alternative custody program. The bill would,
among other things, provide inmate eligibility criteria, authorize
the secretary to prescribe rules and regulations for the program,
including imposing certain inmate participation requirements, and
authorize certain inmate compliance verification procedures. The bill
would make the escape or attempted escape from this program a
misdemeanor, thereby creating a state-mandated local program.
This bill would incorporate changes made by AB 1369 that would
become operative if both bills are enacted and this bill is enacted
after AB 1369.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The incarceration rate for female offenders has doubled over
the last 20 years. As a result, California now has about 10,000
incarcerated women, which is more than any other state.
(b) Nearly 70 percent of female inmates are nonviolent offenders.
Two-thirds of female inmates were convicted of property or
drug-related crimes.
(c) While over half of the men in prison were incarcerated for
violent crimes, only 30 percent of women were convicted of violence.
(d) Female inmates are more likely to be victims of violent crimes
than to be the perpetrators. Four in 10 female inmates were
physically or sexually abused before 18 years of age.
(e) Over two-thirds of women are classified as low risk by the
prison classification system. However, women are often held in more
secure environments than their custody classifications would warrant.
(f) Approximately 67 percent of incarcerated women are mothers,
and many of them are single parents. Most of California's
incarcerated mothers are the primary caregivers of dependent children
and hope to return home to their children. While the vast majority
of children of incarcerated men continue to live with their mothers,
children of incarcerated women are more likely to end up living with
other relatives or in foster care.
(g) Separating parents from children has a substantial impact on
their futures. Children of inmates are much more likely than their
peers to become incarcerated. Research suggests that mothers who are
able to maintain a relationship with their children are less likely
to return to prison. Research also demonstrates that a father's
involvement in his child's life greatly improves the child's chances
for success. Helping incarcerated fathers foster stronger connections
with their children, where appropriate, can have positive effects
for children. Strong family connections help to ensure that fathers
stay out of prison once they are released.
(h) To break the cycle of incarceration, California must adopt
policies that facilitate parenting and family reunification.
SEC. 2. Section 1170.05 is added to the Penal Code, to read:
1170.05. (a) Notwithstanding any other law, the Secretary of the
Department of Corrections and Rehabilitation is authorized to offer a
program under which female inmates, pregnant inmates, or inmates who
were primary caregivers of dependent children immediately prior to
incarceration, as specified in subdivision (c), who are not precluded
by subdivision (d), and who have been committed to state prison may
be allowed to participate in a voluntary alternative custody program
as defined in subdivision (b) in lieu of their confinement in state
prison. In order to qualify for the program an offender need not be
confined in an institution under the jurisdiction of the Department
of Corrections and Rehabilitation. Under this program, one day of
participation in an alternative custody program shall be in lieu of
one day of incarceration in the state prison. Participants in the
program shall receive any sentence reduction credits that they would
have received had they served their sentence in the state prison, and
shall be subject to denial and loss of credit pursuant to
subdivision (a) of Section 2932. The department may enter into
contracts with county agencies, not-for-profit organizations,
for-profit organizations, and others in order to promote alternative
custody placements.
(b) As used in this section, an alternative custody program shall
include, but not be limited to, the following:
(1) Confinement to a residential home during the hours designated
by the department.
(2) Confinement to a residential drug or treatment program during
the hours designated by the department.
(3) Confinement to a transitional care facility that offers
appropriate services.
(c) Except as provided by subdivision (d), female inmates,
pregnant inmates, or inmates who were primary caregivers of dependent
children immediately prior to incarceration sentenced to state
prison for a determinate term of imprisonment pursuant to Section
1170, and only those persons, shall be eligible to participate in the
alternative custody program authorized by this section.
(d) An inmate committed to the state prison who meets any of the
following criteria shall not be eligible to participate in the
alternative custody program:
(1) The person has a current or prior conviction for a violent
felony as defined in Section 667.5.
(2) The person has a current or prior conviction for a serious
felony as defined in Sections 1192.7 and 1192.8.
(3) The person has a current or prior conviction for an offense
that requires the person to register as a sex offender as provided in
Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1.
(4) The person was screened by the department using a validated
risk assessment tool and determined to pose a high risk to commit a
violent offense.
(5) The person has a history, within the last 10 years, of escape
from a facility while under juvenile or adult custody, including, but
not limited to, any detention facility, camp, jail, or state prison
facility.
(e) An alternative custody program shall include the use of
electronic monitoring, global positioning system devices, or other
supervising devices for the purpose of helping to verify a
participant's compliance with the rules and regulations of the
program. The devices shall not be used to eavesdrop or record any
conversation, except a conversation between the participant and the
person supervising the participant, in which case the recording of
such a conversation is to be used solely for the purposes of voice
identification.
(f) (1) In order to implement alternative custody for the
population specified in subdivision (c), the department shall create,
and the participant shall agree to and fully participate in, an
individualized treatment and rehabilitation plan of evidence-based
programs and services that will aid in the successful reentry into
society while he or she takes part in alternative custody.
(2) The department shall collaborate with local law enforcement
and community-based programs that administer evidence-based practices
in order to prevent recidivism among individuals placed in
alternative custody and assist in reentry into society. Mandatory
case management services shall be provided to support rehabilitation,
and to track the progress and individualized treatment plan
compliance of the inmate.
(3) For purposes of this section, "evidence-based practices" means
supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under probation, parole, or postrelease supervision.
(g) The secretary shall prescribe reasonable rules and regulations
under which the alternative custody program shall operate. The
department shall adopt regulations necessary to effectuate this
section, including emergency regulations as provided under Section
5058.3 and adopted pursuant to the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code). The participant shall be informed
in writing that he or she shall comply with the rules and
regulations of the program, including, but not limited to, the
following rules:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the secretary or
his or her designee.
(2) The participant shall be subject to search and seizure by a
peace officer at any time of the day or night, with or without cause.
In addition, the participant shall admit any peace officer
designated by the secretary or his or her designee into the
participant's residence at any time for purposes of verifying the
participant's compliance with the conditions of his or her detention.
Prior to participation in the alternative custody program, all
participants shall agree in writing to these terms and conditions.
(3) The secretary or his or her designee may immediately retake
the participant into custody to serve the balance of his or her
sentence if the electronic monitoring or supervising devices are
unable for any reason to properly perform their function at the
designated place of detention, if the participant fails to remain
within the place of detention as stipulated in the agreement, or if
the participant for any other reason no longer meets the established
criteria under this section.
(h) Whenever a peace officer supervising a participant has
reasonable suspicion to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the secretary or his or her designee, and
without a warrant of arrest, retake the participant into custody to
complete the remainder of the original sentence.
(i) Nothing in this section shall be construed to require the
secretary or his or her designee to allow an inmate to participate in
this program if it appears from the record that the inmate has not
satisfactorily complied with reasonable rules and regulations while
in custody. An inmate shall be eligible for participation in an
alternative custody program only if the secretary or his or her
designee concludes that the inmate meets the criteria for program
participation established under this section and that the inmate's
participation is consistent with any reasonable rules and regulations
prescribed by the secretary.
(1) The rules and regulations and administrative policies of the
program shall be written and shall be given or made available to the
participant upon assignment to the alternative custody program.
(2) The secretary or his or her designee shall have the sole
discretion concerning whether to permit program participation as an
alternative to custody in state prison. A risk and needs assessment
shall be completed on each inmate to assist in the determination of
eligibility for participation and the type of alternative custody.
(j) The secretary or his or her designee shall permit program
participants to seek and retain employment in the community, attend
psychological counseling sessions or educational or vocational
training classes, participate in life skills or parenting training,
utilize substance abuse treatment services, or seek medical and
dental assistance based upon the participant's individualized
treatment and release plan. Participation in other rehabilitative
services and programs may be approved by the case manager if it is
specified as a requirement of the inmate's individualized treatment
and rehabilitative case plan. Willful failure of the program
participant to return to the place of detention not later than the
expiration of any period of time during which he or she is authorized
to be away from the place of detention pursuant to this section,
unauthorized departures from the place of detention, or tampering
with or disabling, or attempting to tamper with or disable, an
electronic monitoring device shall subject the participant to a
return to custody pursuant to subdivisions (g) and (h). In addition,
participants may be subject to forfeiture of credits pursuant to the
provisions of Section 2932, or to discipline for violation of rules
established by the secretary.
(k) (1) Notwithstanding any other law, the secretary or his or her
designee shall provide the information specified in paragraph (2)
regarding participants in an alternative custody program to the law
enforcement agencies of the jurisdiction in which persons
participating in an alternative custody program reside.
(2) The information required by paragraph (1) shall consist of the
following:
(A) The participant's name, address, and date of birth.
(B) The offense committed by the participant.
(C) The period of time the participant will be subject to an
alternative custody program.
(3) Any The information
received by a law enforcement agency pursuant to this subdivision
shall may be used only
for the purpose of monitoring the impact of an alternative
custody program on the community.
(l) It is the intent of the Legislature that the alternative
custody program established under this section maintain the highest
public confidence, credibility, and public safety. In the furtherance
of these standards, the secretary may administer an alternative
custody program pursuant to written contracts with appropriate public
agencies or entities to provide specified program services. No
public agency or entity entering into a contract may itself employ
any person who is in an alternative custody program. The
department shall determine, or contract with a research entity to
determine, the cost effectiveness of each program based on an
evaluation of the program costs and recidivism reduction for each
participant using an appropriate baseline prison cost and prison
recidivism rate. department shall determine the
recidivism rate of each participant in an alternative custody
program.
(m) An inmate participating in this program must voluntarily agree
to all of the provisions of the program in writing, including that
he or she may be returned to confinement at any time with or without
cause, and shall not be charged fees or costs for the program.
(n) The state shall retain responsibility for the medical, dental,
and mental health needs of individuals participating in the
alternative custody program.
(o) The secretary shall adopt emergency regulations specifically
governing participants in this program.
(p) A person is a primary caregiver of a dependent child for
purposes of this section if all of the following criteria are met:
(1) The child is the inmate's son, daughter, stepchild, adopted
child, or foster child.
(2) The child is 17 years of age or less at the time of the inmate'
s placement into the alternative custody program.
(3) The child resided with the inmate for the majority of the year
preceding the inmate's arrest.
(4) At the time the inmate was arrested, the inmate had physical
custody of the child and was primarily responsible for the care and
upbringing of the child.
(q) If any phrase, clause, sentence, or provision of this section
or application thereof to any person or circumstance is held invalid,
such invalidity shall not affect any other phrase, clause, sentence,
or provision or application of this section, which can be given
effect without the invalid phrase, clause, sentence, or provision or
application and to this end the provisions of this section are
declared to be severable.
SEC. 3. Section 4532 of the Penal Code is amended to read:
4532. (a) (1) Every prisoner arrested and booked for, charged
with, or convicted of a misdemeanor, and every person committed under
the terms of Section 5654, 5656, or 5677 of the Welfare and
Institutions Code as an inebriate, who is confined in any county or
city jail, prison, industrial farm, or industrial road camp, is
engaged on any county road or other county work, is in the lawful
custody of any officer or person, is employed or continuing in his or
her regular educational program or authorized to secure employment
or education away from the place of confinement, pursuant to the
Cobey Work Furlough Law (Section 1208), is authorized for temporary
release for family emergencies or for purposes preparatory to his or
her return to the community pursuant to Section 4018.6, or is a
participant in a home detention program pursuant to Section 1203.016,
and who thereafter escapes or attempts to escape from the county or
city jail, prison, industrial farm, or industrial road camp or from
the custody of the officer or person in charge of him or her while
engaged in or going to or returning from the county work or from the
custody of any officer or person in whose lawful custody he or she
is, or from the place of confinement in a home detention program
pursuant to Section 1203.016, is guilty of a felony and, if the
escape or attempt to escape was not by force or violence, is
punishable by imprisonment in the state prison for a determinate term
of one year and one day, or in a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for two, four, or six
years to be served consecutively, or in a county jail not exceeding
one year. When the second term of imprisonment is to be served in a
county jail, it shall commence from the time the prisoner otherwise
would have been discharged from jail.
(3) A conviction of a violation of this subdivision, or a
violation of subdivision (b) involving a participant of a home
detention program pursuant to Section 1203.016, that is not committed
by force or violence, shall not be charged as a prior felony
conviction in any subsequent prosecution for a public offense.
(b) (1) Every prisoner arrested and booked for, charged with, or
convicted of a felony, and every person committed by order of the
juvenile court, who is confined in any county or city jail, prison,
industrial farm, or industrial road camp, is engaged on any county
road or other county work, is in the lawful custody of any officer or
person, or is confined pursuant to Section 4011.9, is a participant
in a home detention program pursuant to Section 1203.016, who escapes
or attempts to escape from a county or city jail, prison, industrial
farm, or industrial road camp or from the custody of the officer or
person in charge of him or her while engaged in or going to or
returning from the county work or from the custody of any officer or
person in whose lawful custody he or she is, or from confinement
pursuant to Section 4011.9, or from the place of confinement in a
home detention program pursuant to Section 1203.016, is guilty of a
felony and, if the escape or attempt to escape was not by force or
violence, is punishable by imprisonment in the state prison for 16
months, two years, or three years, to be served consecutively, or in
a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for a full term of
two, four, or six years to be served consecutively to any other term
of imprisonment, commencing from the time the person otherwise would
have been released from imprisonment and the term shall not be
subject to reduction pursuant to subdivision (a) of Section 1170.1,
or in a county jail for a consecutive term not to exceed one year,
that term to commence from the time the prisoner otherwise would have
been discharged from jail.
(c) Notwithstanding any other law, every inmate who is a
participant in an alternative custody program pursuant to Section
1170.05 who escapes or attempts to escape from the program is guilty
of a misdemeanor.
(d) (1) Except in unusual cases where the interests of justice
would best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of a felony
offense under this section in that he or she escaped or attempted to
escape from a secure main jail facility, from a court building, or
while being transported between the court building and the jail
facility.
(2) In any case in which a person is convicted of a violation of
this section designated as a misdemeanor, he or she shall be confined
in a county jail for not less than 90 days nor more than one year
except in unusual cases where the interests of justice would best be
served by the granting of probation.
(3) For the purposes of this subdivision, "main jail facility"
means the facility used for the detention of persons pending
arraignment, after arraignment, during trial, and upon sentence or
commitment. The facility shall not include an industrial farm,
industrial road camp, work furlough facility, or any other nonsecure
facility used primarily for sentenced prisoners. As used in this
subdivision, "secure" means that the facility contains an outer
perimeter characterized by the use of physically restricting
construction, hardware, and procedures designed to eliminate ingress
and egress from the facility except through a closely supervised gate
or doorway.
(4) If the court grants probation under this subdivision, it shall
specify the reason or reasons for that order on the court record.
(5) Any sentence imposed under this subdivision shall be served
consecutive to any other sentence in effect or pending.
(e) The willful failure of a prisoner, whether convicted of a
felony or a misdemeanor, to return to his or her place of confinement
no later than the expiration of the period that he or she was
authorized to be away from that place of confinement, is an escape
from that place of confinement. This subdivision applies to a
prisoner who is employed or continuing in his or her regular
educational program, authorized to secure employment or education
pursuant to the Cobey Work Furlough Law (Section 1208), authorized
for temporary release for family emergencies or for purposes
preparatory to his or her return to the community pursuant to Section
4018.6, or permitted to participate in a home detention program
pursuant to Section 1203.016. A prisoner convicted of a misdemeanor
who willfully fails to return to his or her place of confinement
under this subdivision shall be punished as provided in paragraph (1)
of subdivision (a). A prisoner convicted of a felony who willfully
fails to return to his or her place of confinement shall be punished
as provided in paragraph (1) of subdivision (b).
SEC. 3.5. Section 4532 of the Penal Code is
amended to read:
4532. (a) (1) Every prisoner arrested and booked for, charged
with, or convicted of a misdemeanor, and every person committed under
the terms of Section 5654, 5656, or 5677 of the Welfare and
Institutions Code as an inebriate, who is confined in any county or
city jail, prison, industrial farm, or industrial road camp, is
engaged on any county road or other county work, is in the lawful
custody of any officer or person, is employed or continuing in his or
her regular educational program or authorized to secure employment
or education away from the place of confinement, pursuant to the
Cobey Work Furlough Law (Section 1208), is authorized for temporary
release for family emergencies or for purposes preparatory to his or
her return to the community pursuant to Section 4018.6, or is a
participant in a home detention program pursuant to Section 1203.016,
and who thereafter escapes or attempts to escape from the county or
city jail, prison, industrial farm, or industrial road camp or from
the custody of the officer or person in charge of him or her while
engaged in or going to or returning from the county work or from the
custody of any officer or person in whose lawful custody he or she
is, or from the place of confinement in a home detention program
pursuant to Section 1203.016, is guilty of a felony and, if the
escape or attempt to escape was not by force or violence, is
punishable by imprisonment in the state prison for a determinate term
of one year and one day, or in a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for two, four, or six
years to be served consecutively, or in a county jail not exceeding
one year. When the second term of imprisonment is to be served in a
county jail, it shall commence from the time the prisoner otherwise
would have been discharged from jail.
(3) A conviction of a violation of this subdivision, or a
violation of subdivision (b) involving a participant of a home
detention program pursuant to Section 1203.016, that is not committed
by force or violence, shall not be charged as a prior felony
conviction in any subsequent prosecution for a public offense.
(b) (1) Every prisoner arrested and booked for, charged with, or
convicted of a felony, and every person committed by order of the
juvenile court, who is confined in any county or city jail, prison,
industrial farm, or industrial road camp, is engaged on any county
road or other county work, is in the lawful custody of any officer or
person, or is confined pursuant to Section 4011.9, is a participant
in a home detention program pursuant to Section 1203.016, who escapes
or attempts to escape from a county or city jail, prison, industrial
farm, or industrial road camp or from the custody of the officer or
person in charge of him or her while engaged in or going to or
returning from the county work or from the custody of any officer or
person in whose lawful custody he or she is, or from confinement
pursuant to Section 4011.9, or from the place of confinement in a
home detention program pursuant to Section 1203.016, is guilty of a
felony and, if the escape or attempt to escape was not by force or
violence, is punishable by imprisonment in the state prison for 16
months, two years, or three years, to be served consecutively, or in
a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for a full term of
two, four, or six years to be served consecutively to any other term
of imprisonment, commencing from the time the person otherwise would
have been released from imprisonment and the term shall not be
subject to reduction pursuant to subdivision (a) of Section 1170.1,
or in a county jail for a consecutive term not to exceed one year,
that term to commence
from the time the prisoner otherwise would have been discharged from
jail.
(c) Notwithstanding any other law, every prisoner who is a
participant in an electronic monitoring program pursuant to Section
1203.018 or 1203.019 who willfully fails to comply with the
prescribed rules and regulations of that program is guilty of a
misdemeanor.
(d) Notwithstanding any other law, every inmate who is a
participant in an alternative custody program pursuant to Section
1170.05 who escapes or attempts to escape from the program is guilty
of a misdemeanor.
(e) (1) Except in unusual cases where the interests of justice
would best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of a felony
offense under this section in that he or she escaped or attempted to
escape from a secure main jail facility, from a court building, or
while being transported between the court building and the jail
facility.
(2) In any case in which a person is convicted of a violation of
this section designated as a misdemeanor, he or she shall be confined
in a county jail for not less than 90 days nor more than one year
except in unusual cases where the interests of justice would best be
served by the granting of probation.
(3) For the purposes of this subdivision, "main jail facility"
means the facility used for the detention of persons pending
arraignment, after arraignment, during trial, and upon sentence or
commitment. The facility shall not include an industrial farm,
industrial road camp, work furlough facility, or any other nonsecure
facility used primarily for sentenced prisoners. As used in this
subdivision, "secure" means that the facility contains an outer
perimeter characterized by the use of physically restricting
construction, hardware, and procedures designed to eliminate ingress
and egress from the facility except through a closely supervised gate
or doorway.
(4) If the court grants probation under this subdivision, it shall
specify the reason or reasons for that order on the court record.
(5) Any sentence imposed under this subdivision shall be served
consecutive to any other sentence in effect or pending.
(f) The willful failure of a prisoner, whether convicted of a
felony or a misdemeanor, to return to his or her place of confinement
no later than the expiration of the period that he or she was
authorized to be away from that place of confinement, is an escape
from that place of confinement. This subdivision applies to a
prisoner who is employed or continuing in his or her regular
educational program, authorized to secure employment or education
pursuant to the Cobey Work Furlough Law (Section 1208), authorized
for temporary release for family emergencies or for purposes
preparatory to his or her return to the community pursuant to Section
4018.6, or permitted to participate in a home detention program
pursuant to Section 1203.016. A prisoner convicted of a misdemeanor
who willfully fails to return to his or her place of confinement
under this subdivision shall be punished as provided in paragraph (1)
of subdivision (a). A prisoner convicted of a felony who willfully
fails to return to his or her place of confinement shall be punished
as provided in paragraph (1) of subdivision (b).
SEC. 3.3. Section 4532 of the Penal
Code is amended to read:
4532. (a) (1) Every prisoner arrested and booked for, charged
with, or convicted of a misdemeanor, and every person committed under
the terms of Section 5654, 5656, or 5677 of the Welfare and
Institutions Code as an inebriate, who is confined in any county or
city jail, prison, industrial farm, or industrial road camp, is
engaged on any county road or other county work, is in the lawful
custody of any officer or person, is employed or continuing in his or
her regular educational program or authorized to secure employment
or education away from the place of confinement, pursuant to the
Cobey Work Furlough Law (Section 1208), is authorized for temporary
release for family emergencies or for purposes preparatory to his or
her return to the community pursuant to Section 4018.6, or is a
participant in a home detention program pursuant to Section 1203.016,
and who thereafter escapes or attempts to escape from the county or
city jail, prison, industrial farm, or industrial road camp or from
the custody of the officer or person in charge of him or her while
engaged in or going to or returning from the county work or from the
custody of any officer or person in whose lawful custody he or she
is, or from the place of confinement in a home detention program
pursuant to Section 1203.016, is guilty of a felony and, if the
escape or attempt to escape was not by force or violence, is
punishable by imprisonment in the state prison for a determinate term
of one year and one day, or in a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for two, four, or six
years to be served consecutively, or in a county jail not exceeding
one year. When the second term of imprisonment is to be served in a
county jail, it shall commence from the time the prisoner otherwise
would have been discharged from jail.
(3) A conviction of a violation of this subdivision, or a
violation of subdivision (b) involving a participant of a home
detention program pursuant to Section 1203.016, that is not committed
by force or violence, shall not be charged as a prior felony
conviction in any subsequent prosecution for a public offense.
(b) (1) Every prisoner arrested and booked for, charged with, or
convicted of a felony, and every person committed by order of the
juvenile court, who is confined in any county or city jail, prison,
industrial farm, or industrial road camp, is engaged on any county
road or other county work, is in the lawful custody of any officer or
person, or is confined pursuant to Section 4011.9, is a participant
in a home detention program pursuant to Section 1203.016, who escapes
or attempts to escape from a county or city jail, prison, industrial
farm, or industrial road camp or from the custody of the officer or
person in charge of him or her while engaged in or going to or
returning from the county work or from the custody of any officer or
person in whose lawful custody he or she is, or from confinement
pursuant to Section 4011.9, or from the place of confinement in a
home detention program pursuant to Section 1203.016, is guilty of a
felony and, if the escape or attempt to escape was not by force or
violence, is punishable by imprisonment in the state prison for 16
months, two years, or three years, to be served consecutively, or in
a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for a full term of
two, four, or six years to be served consecutively to any other term
of imprisonment, commencing from the time the person otherwise would
have been released from imprisonment and the term shall not be
subject to reduction pursuant to subdivision (a) of Section 1170.1,
or in a county jail for a consecutive term not to exceed one year,
that term to commence from the time the prisoner otherwise would have
been discharged from jail.
(c) Notwithstanding any other law, every prisoner who is a
participant in an electronic monitoring program pursuant to Section
1203.018 or 1203.019 who willfully fails to comply with the
prescribed rules and regulations of that program is guilty of a
misdemeanor.
(d) Notwithstanding any other law, every inmate who is a
participant in an alternative custody program pursuant to Section
1170.05 who escapes or attempts to escape from the program is guilty
of a misdemeanor.
(c)
(e) (1) Except in unusual cases where the interests of
justice would best be served if the person is granted probation,
probation shall not be granted to any person who is convicted of a
felony offense under this section in that he or she escaped or
attempted to escape from a secure main jail facility, from a court
building, or while being transported between the court building and
the jail facility.
(2) In any case in which a person is convicted of a violation of
this section designated as a misdemeanor, he or she shall be confined
in a county jail for not less than 90 days nor more than one year
except in unusual cases where the interests of justice would best be
served by the granting of probation.
(3) For the purposes of this subdivision, "main jail facility"
means the facility used for the detention of persons pending
arraignment, after arraignment, during trial, and upon sentence or
commitment. The facility shall not include an industrial farm,
industrial road camp, work furlough facility, or any other nonsecure
facility used primarily for sentenced prisoners. As used in this
subdivision, "secure" means that the facility contains an outer
perimeter characterized by the use of physically restricting
construction, hardware, and procedures designed to eliminate ingress
and egress from the facility except through a closely supervised gate
or doorway.
(4) If the court grants probation under this subdivision, it shall
specify the reason or reasons for that order on the court record.
(5) Any sentence imposed under this subdivision shall be served
consecutive to any other sentence in effect or pending.
(d)
(f) The willful failure of a prisoner, whether
convicted of a felony or a misdemeanor, to return to his or her place
of confinement no later than the expiration of the period that he or
she was authorized to be away from that place of confinement, is an
escape from that place of confinement. This subdivision applies to a
prisoner who is employed or continuing in his or her regular
educational program, authorized to secure employment or education
pursuant to the Cobey Work Furlough Law (Section 1208), authorized
for temporary release for family emergencies or for purposes
preparatory to his or her return to the community pursuant to Section
4018.6, or permitted to participate in a home detention program
pursuant to Section 1203.016. A prisoner convicted of a misdemeanor
who willfully fails to return to his or her place of confinement
under this subdivision shall be punished as provided in paragraph (1)
of subdivision (a). A prisoner convicted of a felony who willfully
fails to return to his or her place of confinement shall be punished
as provided in paragraph (1) of subdivision (b).
(g) This section shall remain in effect only until January 1,
2015, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2015, deletes or extends
that date.
SEC. 3.5. Section 4532 is added to the
Penal Code , to read:
4532. (a) (1) Every prisoner arrested and booked for, charged
with, or convicted of a misdemeanor, and every person committed under
the terms of Section 5654, 5656, or 5677 of the Welfare and
Institutions Code as an inebriate, who is confined in any county or
city jail, prison, industrial farm, or industrial road camp, is
engaged on any county road or other county work, is in the lawful
custody of any officer or person, is employed or continuing in his or
her regular educational program or authorized to secure employment
or education away from the place of confinement, pursuant to the
Cobey Work Furlough Law (Section 1208), is authorized for temporary
release for family emergencies or for purposes preparatory to his or
her return to the community pursuant to Section 4018.6, or is a
participant in a home detention program pursuant to Section 1203.016,
and who thereafter escapes or attempts to escape from the county or
city jail, prison, industrial farm, or industrial road camp or from
the custody of the officer or person in charge of him or her while
engaged in or going to or returning from the county work or from the
custody of any officer or person in whose lawful custody he or she
is, or from the place of confinement in a home detention program
pursuant to Section 1203.016, is guilty of a felony and, if the
escape or attempt to escape was not by force or violence, is
punishable by imprisonment in the state prison for a determinate term
of one year and one day, or in a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for two, four, or six
years to be served consecutively, or in a county jail not exceeding
one year. When the second term of imprisonment is to be served in a
county jail, it shall commence from the time the prisoner otherwise
would have been discharged from jail.
(3) A conviction of a violation of this subdivision, or a
violation of subdivision (b) involving a participant of a home
detention program pursuant to Section 1203.016, that is not committed
by force or violence, shall not be charged as a prior felony
conviction in any subsequent prosecution for a public offense.
(b) (1) Every prisoner arrested and booked for, charged with, or
convicted of a felony, and every person committed by order of the
juvenile court, who is confined in any county or city jail, prison,
industrial farm, or industrial road camp, is engaged on any county
road or other county work, is in the lawful custody of any officer or
person, or is confined pursuant to Section 4011.9, is a participant
in a home detention program pursuant to Section 1203.016, who escapes
or attempts to escape from a county or city jail, prison, industrial
farm, or industrial road camp or from the custody of the officer or
person in charge of him or her while engaged in or going to or
returning from the county work or from the custody of any officer or
person in whose lawful custody he or she is, or from confinement
pursuant to Section 4011.9, or from the place of confinement in a
home detention program pursuant to Section 1203.016, is guilty of a
felony and, if the escape or attempt to escape was not by force or
violence, is punishable by imprisonment in the state prison for 16
months, two years, or three years, to be served consecutively, or in
a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for a full term of
two, four, or six years to be served consecutively to any other term
of imprisonment, commencing from the time the person otherwise would
have been released from imprisonment and the term shall not be
subject to reduction pursuant to subdivision (a) of Section 1170.1,
or in a county jail for a consecutive term not to exceed one year,
that term to commence from the time the prisoner otherwise would have
been discharged from jail.
(c) Notwithstanding any other law, every inmate who is a
participant in an alternative custody program pursuant to Section
1170.05 who escapes or attempts to escape from the program is guilty
of a misdemeanor.
(d) (1) Except in unusual cases where the interests of justice
would best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of a felony
offense under this section in that he or she escaped or attempted to
escape from a secure main jail facility, from a court building, or
while being transported between the court building and the jail
facility.
(2) In any case in which a person is convicted of a violation of
this section designated as a misdemeanor, he or she shall be confined
in a county jail for not less than 90 days nor more than one year
except in unusual cases where the interests of justice would best be
served by the granting of probation.
(3) For the purposes of this subdivision, "main jail facility"
means the facility used for the detention of persons pending
arraignment, after arraignment, during trial, and upon sentence or
commitment. The facility shall not include an industrial farm,
industrial road camp, work furlough facility, or any other nonsecure
facility used primarily for sentenced prisoners. As used in this
subdivision, "secure" means that the facility contains an outer
perimeter characterized by the use of physically restricting
construction, hardware, and procedures designed to eliminate ingress
and egress from the facility except through a closely supervised gate
or doorway.
(4) If the court grants probation under this subdivision, it shall
specify the reason or reasons for that order on the court record.
(5) Any sentence imposed under this subdivision shall be served
consecutive to any other sentence in effect or pending.
(e) The willful failure of a prisoner, whether convicted of a
felony or a misdemeanor, to return to his or her place of confinement
no later than the expiration of the period that he or she was
authorized to be away from that place of confinement, is an escape
from that place of confinement. This subdivision applies to a
prisoner who is employed or continuing in his or her regular
educational program, authorized to secure employment or education
pursuant to the Cobey Work Furlough Law (Section 1208), authorized
for temporary release for family emergencies or for purposes
preparatory to his or her return to the community pursuant to Section
4018.6, or permitted to participate in a home detention program
pursuant to Section 1203.016. A prisoner convicted of a misdemeanor
who willfully fails to return to his or her place of confinement
under this subdivision shall be punished as provided in paragraph (1)
of subdivision (a). A prisoner convicted of a felony who willfully
fails to return to his or her place of confinement shall be punished
as provided in paragraph (1) of subdivision (b).
(f) This section shall become operative January 1, 2015.
SEC. 4. Section Sections 3.3 and 3.5
of this bill incorporates incorporate
amendments to Section 4532 of the Penal Code proposed by both this
bill and AB 1369. It Those sections
shall only become operative if (1) both bills are enacted and become
effective on or before January 1, 2011, (2) each bill amends Section
4532 of the Penal Code, and (3) this bill is enacted after AB 1369,
in which case Section 3 of this bill shall not become operative.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.