BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
4
7
AB 47 (Gatto)
As Amended April 18, 2013
Hearing date: July 2, 2013
Penal Code
MK:mc
EMERGENCY TELEPHONE SYSTEM: ABUSE
HISTORY
Source: Author
Prior Legislation: AB 2225 (Mountjoy) - Chapter 227, Stats. 2006
SB 1707 (Aanestad) - Chapter 51, Stats. 2004
SB 2057 (O'Connell) - Chapter 521, Stats. 2002
Support: League of California Cities; City of Thousand Oaks; Los
Angeles County District Attorney; City of Sacramento
Opposition:Taxpayers for Improving Public Safety; California
Public Defenders Association
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUES
SHOULD THERE BE AN ADDITIONAL MISDEMEANOR FOR CALLING 911 TO
DISPATCH EMERGENCY PERSONNEL WITH THE INTENT TO HARASS ANOTHER WHEN
THERE IS NO EMERGENCY?
SHOULD THERE BE AN ADDITIONAL FELONY FOR CALLING 911 TO DISPATCH
EMERGENCY PERSONNEL WITH THE INTENT TO HARASS ANOTHER AND CAUSING
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ANOTHER TO SUSTAIN BODILY INJURY WHEN THERE IS NO EMERGENCY?
PURPOSE
The purpose of this bill is to create additional penalties for
calling 911 to report an emergency with the intent to annoy or
harass when there is no emergency.
Existing law provides that any individual who reports, or causes
any report to be made, to any city, county, city and county, or
state department, district, agency, division, commission or
board, that an emergency exists, knowing that the report is
false, is guilty of a misdemeanor punishable by imprisonment in
a county jail for period not exceeding one year and/or by a fine
of not exceeding $1,000 (plus penalty assessments). (Penal Code
§ 148.3(a).)
Existing law provides that any individual who reports, or causes
any report to be made to any city, county, city and county, or
state department, district, agency, division, commission or
board that an "emergency" exists and who knows the report is
false, and who knows or should know that response to the report
is likely to cause death or great bodily injury, and great
bodily injury or death is sustained by any person as a result of
the false report is guilty of a felony, and upon conviction
shall be punishable by imprisonment in the county jail for 16
months, 2 or 3 years and/or a fine of not more than $10,000
(plus penalty assessments). (Penal Code § 148.3 (b).)
Existing law provides that "emergency" means any condition that
results in, or could result in, the response of a public
official in an authorized emergency vehicle, aircraft, or
vessel, any condition that jeopardizes or could jeopardize
public safety and results in, or could result in, the evacuation
of any area, building, structure, vehicle, or any other place
that any individual may enter, or any situation that results in
or could result in activation of the Emergency Alert System.
(Penal Code § 148.3 (c).)
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Existing law provides that it is a misdemeanor to telephone the
911 emergency line with the intent to annoy or harass another
person, punishable by a fine of not more than $1,000, by
imprisonment in a county jail for not more than six months, or
by both the fine and imprisonment. Intent to annoy or harass is
established by proof of repeated calls over a period of time,
however short, that are unreasonable under the circumstances.
(Penal Code § 653x.)
Existing law states that any person who knowingly allows the use
or who uses the 911 telephone system for any reason other than
because of an emergency, as specified, is guilty of an
infraction. For a first violation, the violator obtains a
warning. Subsequent violations are punishable as follows, but
subject to reduction for inability to pay:
a) for a second violation, a fine of $50;
b) for a third violation, a fine of $100; and
c) for a fourth or subsequent violation, a fine of $250.
(Penal Code § 653y(a).)
Existing law states the parent or legal guardian having custody
and control of an un-emancipated minor who violates this section
shall be jointly and severally liable with the minor for the
fine imposed pursuant to this section. (Penal Code § 653y(b).)
This bill provides that any person who calls the 911 telephone
system to dispatch a police, sheriff, fire department, or
emergency medical service response to a residence or place of
business where there is no emergency, with the intent to annoy
or harass another person, and if police, sheriff, fire
department, or emergency medical service personnel dispatched,
as a result of the telephone call, is guilty of a misdemeanor
punishable by a fine of not more than $2,000 plus penalty
assessments, by imprisonment in a county jail for not more than
one year, or by both that fine and imprisonment.
This bill provides that any person who calls the 911 telephone
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system to dispatch a police, sheriff, fire department, or
emergency medical service personnel response to a residence or
place of business where there is no emergency, with the intent
to annoy or harass another person, and if police, sheriff, fire
department, or emergency medical service personnel are
dispatched and any person sustains bodily injury as a result of
conduct arising out of and in the course of the police, sheriff,
fire department, or emergency medical service personnel being
dispatched to the residence or place of business, is guilty of
an offense punishable by a fine of not more than $10,000, by
imprisonment in a county jail for not more than one year, or
pursuant to Penal Code Section 1170(h) for 16 months, or two or
three years, or by both that fine and imprisonment.
This bill specifies that nothing in this section precludes
punishment under any other provision of law which provides for
greater punishment, including involuntary manslaughter.
This bill defines "emergency" as "any condition in which
emergency services will result in the saving of a life, a
reduction in the destruction of property, quicker apprehension
of criminals, or assistance with potentially life-threatening
medical problems, a fire, a need for rescue, an imminent
potential crime, or a similar situation."
This bill requires a convicted defendant to be liable for all
reasonable costs, including property damage, incurred by an
unnecessary police, sheriff, fire department, or emergency
medical service response.
This bill provides that it does not apply to telephone calls
made in good faith.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
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In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
There has been an alarming rise in the crime known as
"swatting"- a malicious prank that tricks emergency
service providers into dispatching law enforcement
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emergency response teams to locations where no crime is
occurring. The name is derived from several successful
pranks in which SWAT (Special Weapons and Tactics)
teams were dispatched as a result of calls claiming
there was a hostage situation, or worse, at a specified
location. These pranks are a serious drain of public
safety resources away from real emergencies, and
dispatching armed police officers to fake emergencies
places the public and law enforcement at significant
risk.
Victims of these dangerous pranks have not only
included celebrities such as Ashton Kutcher and Justin
Bieber and political bloggers, Patrick Frey and Erick
Erickson, but also ordinary households in Lake Forest,
Dixon and Elk Grove.
Recently, the Los Angeles Times has reported how
several law enforcement officers have already been
injured responding to such calls, and officials
including Los Angeles Police Chief Charlie Beck fear
that it's only a matter of time before events turn
deadly.
This is not just a problem in California. Legislation
in the state of Michigan signed by Governor Rick Snyder
in 2012 outlined new, enhanced penalties for
"swatting."
2. Existing Law Regarding Calling in False Emergency
Existing law has a number of provisions making it illegal to
make a false report including making it a misdemeanor to
knowingly report that an emergency exists to any agency knowing
that the report is false. The penalty is a misdemeanor
punishable by up to one year in prison and/or a fine up to
$1,000, plus penalty assessments for a fine of approximately
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$4,100.<1> If a person makes the false report and knows that
making such a report, or should have known that the report could
cause death or great bodily injury and death or great bodily
injury is sustained by anyone, the penalty is a felony
punishable in the county jail by 16 months, 2 or 3 years in
county jail and/a fine of up to $10,000, plus penalty
assessments for a fine of approximately $41,000. The definition
of emergency includes, among a number of things, "the response
of a public official in an authorized emergency vehicle" (i.e.,
a peace officer in a police car). (Penal Code § 148.3.)
In addition to the above, existing law makes it a misdemeanor to
telephones 911 with the intent to annoy or harass another,
punishable by up to 6 months in county jail and/or a fine up to
$1,000 ($4,100 with penalty assessments). "Harass" is
established as repeated calls over a period of time that are
unreasonable under the circumstances. (Penal Code § 653x.)
Existing law also makes it an infraction to use 911 for any
reason other than an emergency and establishes an increasing
penalty depending on prior violations starting with a warning
and increasing to a fine of $250 ($1025 with penalty
assessments) for a fourth violation. This section also provides
that the parent or legal guardian is liable for the fine
incurred by a child. (Penal Code § 653y.)
3. Penalties for False Emergency in This Bill
This bill creates a new section making it a crime to call 911 to
dispatch a police, sheriff, fire department, or emergency
service personnel response to a residence or place of business
where there is no emergency with the intent to annoy or harass.
---------------------------
<1> Until the budget year 2002-2003, there was 170% in penalty
assessments applied to every fine. The current penalty
assessments are approximately 310% plus a flat fee of $79. (See
Penal Code § 1464; Penal Code § 1465.7; Penal Code § 1465.8;
Government Code § 70373; Government Code § 7600.5; Government
Code § 76000 et seq; Government Code § 76000.10; Government
Code § 76104.6; Government Code § 76104.7.)
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This is behavior that is currently covered in Penal Code Section
148.3, with slightly different elements. This bill requires the
emergency report be to 911 and that there is "intent to annoy or
harass." Existing law requires only that the person know the
report is false and does not limit the manner in which it must
be reported. This bill provides that the penalty is up to one
year in jail and/or a fine up to $2,000 ($8,200 with penalty
assessments.) The penalty for the existing misdemeanor is up to
one year in jail and/or a fine of up to $1,000 ($4,100 with
penalty assessments.)
This bill also creates a new felony when a person calls 911 to
dispatch a police, sheriff, fire department or emergency medical
service personnel response to a residence or place of business
where there is no emergency with the intent to "annoy or
harass," if when they are dispatched any person sustains "bodily
injury" as a result of conduct arising out the emergency
personnel being dispatched. The penalty in the bill is 16
months, 2 or 3 years in county jail and a fine of not more than
$10,000 ($41,000 with penalty assessments). The penalty is the
same as the one for the existing penalty for filing false
emergency report knowing that death or great bodily injury could
result when death or great bodily does result.
This bill also includes a provision that a person shall be
liable for all reasonable costs including property damage
incurred by unnecessary police, sheriff, fire department, or
emergency medical service response.
a. Annoy or harass
It is unclear whether "annoy or harass" have any criminal
legal definition. Should these terms be defined for the
purposes of this bill?
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b. Bodily injury
Bodily injury is not a term that is defined in criminal
law. Great bodily injury<2> and serious bodily injury<3>
-- both defined as a significant or substantial injury --
are terms that are commonly used. "Injury" defined as any
physical injury that requires professional medical
treatment is defined for the purposes of Penal Code Section
243. Is the use of bodily injury without the modifier of
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<2> "The term "great bodily injury" is not impermissibly vague.
(People v. Roberts (1981) 114 C.A.3d 960, 962, 170 C.R. 872;
People v. La Fargue (1983) 147 C.A.3d 878, 885, 886, 195 C.R.
438 [approving instruction that "great bodily injury refers to
significant or substantial bodily injury or damage; it does not
refer to trivial or insignificant injury or moderate harm";
defendant's request for further instruction was properly
denied]; CALJIC, No. 9.02 ["great bodily injury" defined].) (1
Witkin Cal. Crim. Law Crimes--Person § 37.)
<3> "Serious bodily injury" is a serious physical impairment,
including, but not limited to (a) a loss of consciousness; (b) a
concussion; (c) a bone fracture; (d) the protracted loss or
impairment of function of a bodily member or organ; (e) a wound
requiring extensive suturing; or (f) a serious disfigurement.
(P.C. § 243(f)(4); see CALJIC, No. 9.12 ["serious bodily injury"
defined].) This definition is substantially the same as the
definition of "great bodily injury" in the enhancement statute,
P.C. § 12022.7 ("a significant or substantial physical injury";
see 3 Cal. Crim. Law (4th), Punishment, § 354.) (People v. Kent
(1979) 96 C.A.3d 130, 136, 158 C.R. 35 [jury reasonably found
that blow to victim's hand that caused it to break and swell to
twice its normal size was "significant or substantial physical
injury"]; People v. Hawkins (1993) 15 C.A.4th 1373, 1375, 1376,
19 C.R.2d 434 [citing Kent]; People v. Belton (2008) 168 C.A.4th
432, 440, 85 C.R.3d 582 [loss of tooth, which victim could not
replace due to lack of insurance, and wounds requiring sutures
on eyebrow and mouth constituted sufficient "serious impairment
of physical condition" to support conviction for battery with
serious bodily injury].) (1 Witkin Cal. Crim. Law
Crimes--Person § 39.)
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either "serious" or "great" intended to create a new felony
for less than a significant or substantial injury? Is a
felony appropriate for less than significant or substantial
injury?
c. More elements
By requiring the report be a 911 call with the "intent to
annoy" or "harass" another person, this bill creates a new
crime that is similar to an existing crime with a slightly
higher misdemeanor penalty but that has more elements, so
thus may be harder to prosecute. The bill does include a
provision saying that it does not preclude punishment in
other sections, which is necessary in case the prosecution
cannot prove one of these additional elements, thus it
seems likely that this section will be rarely used.
4. Prison Impact Considerations
The Assembly Appropriations Committee's analysis of this bill
included the following information concerning its potential to
impact the prison system:
Unknown, probably minor nonreimbursable local law
enforcement and incarceration costs, offset to a degree
by increased fine revenue and offender financial
liability.
It is not likely many offenders would serve actual jail
time under this bill; fines are a more likely penalty.
Moreover, current law already provides for similar
penalties. By creating an alternate
felony/misdemeanor, however, the bill does create the
possibility of longer jail terms that could impact
future realignment formulae and exacerbate jail
overcrowding.
5. Similar Legislation
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SB 333 (Lieu), which passed this Committee on April 9, 2013,
with a vote of 7-0 and currently is in Assembly Appropriations
Committee, amends Penal Code Section 148.3 to provide that in
addition to the existing misdemeanor and felony penalties
provides that "any individual convicted of violating this
section, based upon a report that resulted in an emergency
response, is liable to a public agency for the reasonable costs
of the emergency response by the public agency."
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