BILL ANALYSIS Ó
SENATE COMMITTEE ON BUDGET AND FISCAL REVIEW
Mark Leno, Chair
Bill No: ABX1 17
Author: Blumenfield
As Amended: September 2, 2011
Consultant: Joe Stephenshaw
Fiscal: Yes
Hearing Date: September 6, 2011
Subject: Public Safety Realignment.
Summary: These amendments make substantive and technical
changes relevant to AB 109 (Ch. 15, Stats. 2001) and
related budget trailer bills pertaining to the Public
Safety Realignment of 2011.
Background: In March of this year, the Legislature passed
AB 109 (Ch.15, Stats. 2011), which generally provides for
the realignment of certain felons and parolees from state
to local jurisdictions. The Legislature subsequently
passed clean-up trailer bills which made specified
technical and conforming revisions consistent with, and
within the framework of, that measure. (See AB 117
(Committee on Budget) (Ch. 39, Stats. 2011); AB 116
(Committee on Budget) (Ch. 136, Stats. 2011). These
amendments make the specified technical and conforming
revisions consistent with, and within the framework of,
these measures.
Proposed Law: This bill does the following:
Sentencing
Penal Code section 17 , which contains the definition of a
felony and was amended by AB 109 to include in the
definition of a felony crimes punishable by imprisonment in
a county jail for more than one year, is amended to instead
include in the definition of a felony crimes punishable
under the provisions of subdivision (h) of Penal Code
section 1170, which describes the felonies subject to
imprisonment in a county jail. The amendments also include
technical corrections relating to the Division of Juvenile
Justice.
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Penal Code section 18 , which pertains to felony punishment,
is amended technically to clarify its application, as
specified.
Subdivision (h) of Penal Code section 1170 , which was added
by AB 109 and pertains to felonies subject to imprisonment
in the county jail, is amended to 1) clarify the language
describing the exceptions to felony jail, including
out-of-state convictions; and 2) clarify the authority of a
court to commit a defendant to county jail when imposing a
sentence under these provisions, as specified. The
amendments also include non-substantive chaptering
amendments, as specified.
Penal Code section 1170.1 , pertaining to aggregate terms of
imprisonment, is amended to clarify the application of
sentencing enhancements to state prison and jail felony
terms.
Penal Code section 273d , pertaining to corporal punishment
or injury to a child, is technically amended in provisions
relating to sentencing enhancements for priors to include
technical cross-references to Penal Code section 1170(h).
Penal Code section 667.5 , pertaining to penalty
enhancements for priors, is amended to make
cross-referencing changes to Penal Code section 1170(h) and
clarify that terms that allow for a portion of the term to
be served on post-release supervision, as ordered by the
court, shall qualify for the enhancement as specified.
These amendments include the following crimes as felonies
subject to imprisonment in state prison and not county
jail:
Penal Code section 4501.1 (battery on peace officer by
gassing);
Penal Code section 4530 (escape from prison facility);
Penal Code section 12021.5 (possession of firearm during
street gang crime); and
Penal Code section 12025 (unlawfully carrying a
concealed firearm).
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The amendments include the following crimes as felonies
subject to imprisonment in county jail if otherwise
statutorily qualified:
Health and Safety Code § 11355 (sale or furnishing
substance falsely represented to be a controlled
substance); and
Health and Safety Code § 11382 (sale or furnishing
substance falsely represented to be a controlled
substance).
Custody Credits
Penal Code section 2932 , pertaining to time credits for
state prison inmates, is repealed and re-enacted by these
amendments to restore these provisions to the law as it was
prior to the enactment of AB 109, and to delete
cross-references to county jail inmates, as specified.
These changes essentially maintain the state prison inmate
credit process authorized pursuant to SBx3 18 (Ducheny)
(Ch. 28, Stats. 2009).
Penal Code section 2933 , also pertaining to time credits
for state prison inmates, is amended to delete subdivision
(e) of that section pertaining to time served in a county
facility, as specified. This amendment makes pre-sentence
custody credits earned in county jail consistent with
post-sentence credits.
Penal Code section 4019 , pertaining to time credits while
in custody in county facilities, is amended to provide that
day-for-day credits available for jail inmates also apply
to inmates confined in a local facility as a result of a
sentence imposed pursuant to Penal Code section 1170(h),
and to expressly exclude periods of "flash" incarceration
from credits otherwise available under this section.
Penal Code section 4019.2, is added to establish that
inmates sentenced to county jail and assigned to a fire
camp receive two-for-one credit consistent with similar
provisions for prison inmates.
Parole and Post-release Community Supervision
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Penal Code section 3000.08 , as enacted by AB 117 and
amended by AB 118, pertaining to prison inmates who are
statutorily ineligible for post-release community
supervision (and therefore subject to state parole), is
amended to provide for a period of state parole up to three
years or the parole term they were subject to when they
committed a new felony if, while on parole, the person 1)
was subject to sex offender registration and committed a
felony for which they were convicted and sentenced to state
prison; or 2) was on life parole and committed a felony for
which they were convicted and sentenced to state prison.
This language is intended to ensure that sex offender and
lifer state parolees who are convicted of a new
non-serious, non-violent, non-sex felony while on parole
will continue to be subject to state parole for a period at
least as long as the parole period they were subject to
when they committed the new crime.
Penal Code section 3000.09 , as enacted by AB 109 and
amended by AB 116, generally pertains to "grandfathered"
parolees who were paroled from state prison prior to
October 1, 2011. These amendments clarify that any
discretionary discharge of a grandfathered parolee after
six consecutive months of being violation free will not
apply to parolees who 1) are subject to a parole period
that exceeds three years; 2) were imprisoned for a serious
or violent offense; or 3) are required to register as a sex
offender, as specified. These amendments also provide
that grandfathered parolees being held for a parole
violation in state prison on October 1, 2011, upon
completion of a revocation term on or after November 1,
2011, shall be subject to parole or post-release community
supervision according to their offense history, as provided
by the 2011 public safety realignment measures previously
enacted. These amendments further clarify that parolees in
county jail on October 1, 2011 serving a parole revocation
term who are released from jail without returning to a
state facility on or after October 1, 2011 shall remain
under the jurisdiction of CDCR state parole. These
amendments clarify that any parolee in jail or state prison
pending a final adjudication of a parole revocation charge
prior to October 1 may be returned to state prison for up
to 12 months, as specified, and that any subsequent parole
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revocations of a parolee on post-release community
supervision shall be served in county jail. These
amendments also technically conform this section to reflect
the applicable parole revocation procedures until July 1,
2013.
Penal Code section 3001 , as amended by AB 109 and AB 117,
provides that inmates who are subject to up to three years
of parole supervision may be discharged from parole after
six months of continuous parole supervision unless CDCR
recommends that the person be retained on parole and makes
a determination based on good cause that the person should
remain on parole. These amendments clarify that this
provision does not apply to persons imprisoned for
committing a violent or serious felony, or who are required
to register as a sex offender.
Penal Code section 3056 , pertaining to custodial sanctions
for parolees on and after October 1, 2011, is amended to
add a cross-reference to "grandfathered" parolees under
Penal Code section 3000.09(c), thereby excepting these
parolees from the custodial provisions and limitations
provided in this section.
Penal Code section 3057 , pertaining to the confinement in
state prison pursuant to a parole revocation and, after
October 1, 2011 applicable only to life-term inmates, is
amended to also apply to parolees who on or before
September 30, 2011 are pending a final adjudication of a
parole revocation charge and are subject to Penal Code
section 3000.09(c).
Penal Code section 3060.7 , relating to notifying persons
released on parole who have been classified as included
within the highest control or risk classification that they
are required to report to his or her parole officer within
two days of release from state prison, is amended to
include within its provisions inmates released on
post-release community supervision, and to provide that
these persons cannot be released on a holiday or weekend.
Penal Code section 3067 , pertaining to the warrantless
search or seizure of parolees and the time credit
consequences of an inmate who does not agree to this
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condition of release, as specified, is amended to include a
cross-reference to persons subject to post-release
community supervision.
Penal Code section 3073.1 , pertaining to services for
inmates released on post-release community supervision with
mental health problems, is amended to replace a reference
to "day treatment and crisis care" to "correctional
clinical" services.
Penal Code section 3450 , pertaining to post-release
community supervision, is amended to revise the definition
of short-term "flash" incarceration from a period of not
more than seven days to not more than 10 days, technically
conforming this language to other provisions provided in
previously enacted 2011 public safety realignment
legislation.
Penal Code section 3453 , pertaining to post-release
community supervision agreements, is amended to require
that inmates also agree to be subject to arrest with or
without warrant where there is probably cause to believe
the person has violated a term or condition of his or her
release on post-release community supervision, as
specified.
Penal Code section 3454 , pertaining to programs of
post-release supervision, is amended to expressly include
the availability of continuous electronic monitoring, as
specified.
Penal Code section 3455 , pertaining to the process for
petitioning for a revocation and termination of
post-release community supervision, is amended to include
technical drafting clarifications, to expressly authorize
peace officers to arrest a person on post-release
supervision where there is probable cause to believe the
person is violating a term of release, as specified, and to
expressly authorize county supervising officers to seek a
warrant, and a court or its subordinate officer to issue, a
warrant for the person's arrest, as specified. The
amendments also add tolling language suspending the
supervision period where a person subject to supervision is
subject to an arrest warrant for failure to appear.
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Penal Code section 3456 , pertaining to the duration of
post-release community supervision, is amended to include
technical clarifying language, and to expressly provide
that any period of time during which a person has absconded
shall not be credited towards any period of post-release
supervision.
Penal Code section 3460 , is added by these amendments to
provide a process for county transfers of persons subject
to post-release community supervision, as specified.
Penal Code section 3465 is added by these amendments to
expressly provide that every person subject to post-release
community supervision, and their residences and
possessions, are subject to search or seizure at any time
of the day or night with or without a warrant, by a
supervising agent or peace officer.
Penal Code section 4115.56 , is added to allow counties to
enter into a contract, as specified, with CDCR to house
inmates who are within 60 days of release from state prison
to a county jail facility for the purpose of reentry and
community transition.
Miscellaneous
Government Code section 26605 , pertaining to the sole and
exclusive authority of the sheriff over the county jail, is
amended to include a cross-reference to persons confined
for a violation of the terms and conditions of post-release
community supervision.
Government Code section 30025 , pertaining to the "Local
Revenue Fund 2011," including the "District Attorney and
Public Defender Account," is amended to include language
including counties where no public defender's office is
established.
Penal Code section 800 , pertaining to the statute of
limitations, is amended to include a cross-reference to
offenses subject to imprisonment in the state prison for
eight years or more, thereby technically correcting
amendments previously made to this section by AB 117
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earlier this year.
Penal Code section 4000 , pertaining to the uses of jails,
is revised to include a cross-reference to persons confined
for violating terms relating to post-release community
supervision, as specified.
These amendments make additional technical revisions
concerning operative dates of the 2011 public safety
realignment, as specified.
Penal Code section 1233.15 , is added to require the
Department of Finance to develop, as specified, a revised
funding formula for the California Community Corrections
Incentive Act of 2009 that takes into account the changes
in the eligibility of some felony probationers for
revocation to the state prison resulting from public safety
realignment..
Penal Code section 3003 , pertaining to reporting of
information regarding inmates released from state prison,
is revised to include a requirement that the CDCR submit to
the Department of Justice data included in the supervised
release file of the California Law Enforcement
Telecommunications System (CLETS) so that law enforcement
can be advised through CLETS of all persons on post-release
community supervision and the county agency designated to
provide supervision.
These amendments appropriate $1000.00 to CDCR, as
specified.
These amendments contain legislative intent language
concerning the enactment of the 2011 public safety
realignment with respect to the management of the prison
population and expressly states it constitutes the approval
required by Section 2 of Chapter 706 (Statutes of 2007)
relating to the conversion of a female prison to a male
prison.
These amendments contain non-substantive chaptering
amendments.
Support: Unknown.
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Opposed: Unknown.
Comments: Upon AB 109 becoming operational, this bill
becomes operative October 1, 2011.
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