BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 17X1|
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THIRD READING
Bill No: AB 17X1
Author: Blumenfield (D)
Amended: 9/7/11 in Senate
Vote: 21
SENATE BUDGET & FISCAL REVIEW COMMITTEE : 10-5, 9/6/11
AYES: Leno, DeSaulnier, Evans, Hancock, Liu, Lowenthal,
Rubio, Simitian, Wolk, Wright
NOES: Huff, Anderson, Emmerson, Fuller, La Malfa
NO VOTE RECORDED: Alquist
ASSEMBLY FLOOR : Not relevant
SUBJECT : Criminal Justice Realignment
SOURCE : Author
DIGEST : This bill makes various changes to the Public
Safety Realignment of 2011 state budget trailer bill.
ANALYSIS : In March of this year, the Legislature passed
AB 109 (Assembly Budget Committee), Chapter 15, Statutes of
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 (Assembly Budget
Committee), Chapter 39, Statutes of 2011; AB 116 (Assembly
Budget Committee), Chapter 136, Statutes of 2011). These
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amendments make the specified technical and conforming
revisions consistent with, and within the framework of,
these measures.
This bill does the following:
I. 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.
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).
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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).
The amendments include the following crimes as felonies
subject to imprisonment in county jail if otherwise
statutorily qualified:
Health and Safety Code Section 11355 (sale or
furnishing substance falsely represented to be a
controlled substance); and
Health and Safety Code Section 11382 (sale or
furnishing substance falsely represented to be a
controlled substance).
II. 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 SB
18X3 (Ducheny), Chapter 28, Statutes of 2009.
Penal Code Section 2933, also pertaining to time credits
for state prison inmates, is amended to delete
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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.
III. Parole and Post-release Community Supervision
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
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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 the Department of Corrections and
Rehabilitation (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
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
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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
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.
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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.
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
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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.
IV. 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
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
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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.
Comments
Upon AB 109 becoming operational, this bill becomes
operative October 1, 2011.
FISCAL EFFECT : Appropriation: Yes Fiscal Com.: Yes
Local: Yes
DLW:mw 9/7/11 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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