BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 1686 (Medina)                                           6
          As Introduced: February 13, 2014 
          Hearing date:  May 13, 2014
          Penal Code
          JM:sl

                                      TRESPASS: 

                      REQUESTS FOR LAW ENFORCEMENT ASSISTANCE  


                                       HISTORY

          Source:  Author

          Prior Legislation:AB 668 (Lieu) Ch. 531, Stats. 2010
                         AB 924 (Maldonado) Ch. 101, Stats. 2003
                         SB 993 (Poochigian) Ch. 805, Stats. 2003
                         SB 1486 (Schiff) Ch. 563, Stats. 2000

          Support: California Police Chiefs Association; California State  
                   Sheriffs' Association; Western Manufactured Housing  
                   Communities Association

          Opposition:Taxpayers for Improving Public Safety

          Assembly Floor Vote:  Ayes 77 - Noes 0


                                         KEY ISSUE
           
          WHERE NOTICE HAS BEEN POSTED ON LAND OR A STRUCTURE THAT THE  
          PROPERTY IS NOT OPEN TO THE PUBLIC, SHOULD THE OWNER'S REQUEST FOR  




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                                                           AB 1686 (Medina)
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          LAW ENFORCEMENT TO ASSIST IN DEMANDING THAT TRESPASSERS LEAVE THE  
          PROPERTY REMAIN VALID FOR ONE YEAR?


                                          

                                       PURPOSE

          The purpose of this bill is to provide that where the owner,  
          owner's agent or person in lawful possession of land or a  
          structure that is not open to the public, and posted as such,  
          requests law enforcement assistance in demanding that  
          trespassers leave the property, the request shall remain valid  
          for one year.

           Existing law  includes numerous provisions defining various forms  
          of trespass and trespass penalties.  The crime definitions and  
          penalties typically turn on whether any damage has been done to  
          the property and whether the trespasser refuses a valid request  
          to leave the property.  (Pen. Code § 602-607.)

           Existing law  provides that any person is guilty of a  
          misdemeanor, punishable by a county jail term of up to six  
          months, a fine of up to $1000, or both, who enters any other  
          person's cultivated or fenced land, or who enters uncultivated  
          or unenclosed lands where signs forbidding trespass are  
          displayed at intervals not less than three to the mile along  
          exterior boundaries and at all roads and trails entering the  
          lands without written permission, and does any of the following:

           Refuses or fails to leave immediately upon being requested to  
            do so by the owner, owner's agent or by the person in lawful  
            possession;
           Tears down, mutilates, or destroys any sign or notice  
            forbidding trespass or hunting;
           Removes or tampers with any lock on any gate on or leading  
            into the lands; or,
           Discharges a firearm. (Pen. Code § 602, subd. (k).)

           Existing law  generally provides that a person commits one form  




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          of trespass to cultivated, fenced or posted land, where he or  
          she, without the written permission of the landowner, the  
          owner's agent or of the person in lawful possession of the land:

           Willfully enters any lands under cultivation or enclosed by  
            fence, belonging to, or occupied by another person; or,
           Willfully enters upon uncultivated or unenclosed lands where  
            signs forbidding trespass are displayed at intervals not less  
            than three to the mile along all exterior boundaries and at  
            all roads and trails entering the lands. (Pen. Code § 602.8,  
            subd. (a).)

           Existing law  provides that trespassing - in circumstances other  
          than where the person refuses a valid order to leave the  
          premises, destroys a no-trespassing or no-hunting sign, tampers  
          with any lock, or discharges a firearm - is an infraction or a  
          misdemeanor, as follows:

           First offense is an infraction, punishable by a fine of $75.  
            (Pen. Code § 602.8, subd. (b)(1).)
           Second offense on any contiguous land of the same owner is an  
            infraction, punishable by a fine of $250. (Pen. Code § 602.8,  
            subd. (b)(2).)
           A third or subsequent offense on any contiguous land of the  
            same owner is a misdemeanor punishable by imprisonment in the  
            county jail not exceeding six months; by fine not exceed  
            $1000; or both. (Pen. Code § 602.8, subd. (b)(3).)

           Existing law  includes the following exceptions to the  
          trespassing law in Section 602.8:

           A person who is conducting lawful union activities;
           A person who is on the premises and engaging in activities  
            protected by the California or United States Constitution;
           A person making lawful service of process; and,
           An appropriately licensed person engaged in land surveying.

           Existing law  states that it is a misdemeanor punishable by six  
          months in county jail for every person who willfully enters any  
          lands under cultivation or enclosed by fence, belonging to, or  




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          occupied by, another, or entering upon uncultivated or  
          unenclosed lands where signs forbidding trespass are displayed  
          at intervals not less than three to the mile along all exterior  
          boundaries and at all roads and trails entering the lands  
          without the written permission of the owner of the land, the  
          owner's agent or of the person in lawful possession and:

           Refuses or fails to leave the lands immediately upon being  
            requested by the owner of the land, the owner's agent or by  
            the person in lawful possession to leave the lands;
           Tears down, mutilates, or destroys any sign, signboard, or  
            notice forbidding trespass or hunting on the lands;
           Removes, injures, unlocks, or tampers with any lock on any  
            gate on or leading into the lands; or,
           Discharges any firearm. (Pen. Code § 602, subd. (l).)

           Existing law  provides that any person who willfully enters and  
          occupies real property or structures of any kind without the  
          consent of the owner, the owner's agent, or the person in lawful  
          possession, is guilty of a misdemeanor. (Pen. Code § 602, subd.  
          (m).)
           
          Existing law  allows for prosecution against those who refuse or  
          fail to leave land, real property, or structures belonging to or  
          lawfully occupied by another and not open to the general public,  
          upon being requested to leave by a peace officer at the request  
          of the owner, the owner's agent, or the person in lawful  
          possession, and upon being informed by the peace officer that he  
          or she is acting with such authority.  (Pen. Code § 602, subd.  
          (o).)
           
          Existing law  provides that any person who, without the written  
          permission of the landowner, the owner's agent, or the person in  
          lawful possession of the land, willfully enters any lands under  
          cultivation or enclosed by a fence, belonging to, or occupied  
          by, another, or who willfully enters upon uncultivated or  
          unenclosed lands where signs forbidding trespass are displayed  
          at intervals not less than three to the mile along all exterior  
          boundaries and at all roads and trials entering lands, is guilty  
          of a public offense punishable as follows:




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                                                           AB 1686 (Medina)
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           A first offense is an infraction, punishable by a fine of $75;
           A second offense on the same land or any contiguous land of  
            the same landowner, without the permission of the landowner,  
            the landowner's agent, or the person in lawful possession of  
            the land, is an infraction punishable by a fine of $250; and,
           A third or subsequent offense on the same land or any  
            contiguous land of the same landowner, without the permission  
            of the landowner, the landowner's agent, or the person in  
            lawful possession of the land, is a six-month misdemeanor.  
            (Penal Code Section 602.8, subd. (a).)
          
          Existing law  provides that a person is guilty of trespass where  
          the person enters private property, whether or not the property  
          is open to the public, and the following circumstances apply:

           The person has been previously convicted of a violent felony  
            on the property, as defined, and;
           The owner, the owner's agent, or lawful possessor, has  
            requested a peace officer to inform the person that the  
            property is not open to him or her;
           The peace officer has informed the person that he or she may  
            not enter the property and informs the person that the notice  
            has been given at the request of the owner or other authorized  
            person;
           A single specified notification shall be valid and enforceable  
            unless and until rescinded by the owner or other specified  
            authorized person; and,
           This form of trespass is also committed where the person fails  
            to leave the property upon being asked to do so as provided in  
            the subdivision defining the crime. (Pen. Code §602, subd.  
            (t).)

           This bill  provides where the owner, owner's agent or person in  
          lawful possession of land or a structure seeks law enforcement  
          assistance in requesting that trespassers leave property that is  
          not open to the public and on which no-trespassing notice has  
          been posted, the request shall remain for one year.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION




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          For the last several years, severe overcrowding in California's  
          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 that 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.  
            

          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 requiring the state to reduce its prison  
          population to 137.5 percent of design capacity.  The State  
          submitted 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 opposed the  
          state's motion, arguing 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 % inmate population cap by December 31,  




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          2013.  

          The Three-Judge Court then ordered, on April 11, 2013, 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."  On September 16, 2013, the State asked the  
          Court to extend that deadline to December 31, 2016.  In  
          response, the Court extended the deadline first to January 27,  
          2014 and then February 24, 2014, and ordered the parties to  
          enter into a meet-and-confer process to "explore how defendants  
          can comply with this Court's June 20, 2013 Order, including  
          means and dates by which such compliance can be expedited or  
          accomplished and how this Court can ensure a durable solution to  
          the prison crowding problem."

          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  
          following interim and final population reduction benchmarks:

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   


          In a status report to the Court dated February 18, 2014, the  
          state reported that as of February 12, 2014, California's 33  
          prisons were at 144.3 percent capacity, with 117,686 inmates.   
          8,768 inmates were housed in out-of-state facilities.

          The ongoing prison overcrowding litigation indicates that prison  
          capacity and related issues concerning conditions of confinement  




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          remain unresolved.  While real gains in reducing the prison  
          population have been made, even greater reductions may be  
          required to meet the orders of the federal court.  Therefore,  
          the Committee's consideration of ROCA bills -bills that may  
          impact the prison population - will be informed by the following  
          questions:

                 Whether a measure erodes realignment and impacts the  
               prison population;
                 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:

               Trespass Arrest Authorization Forms authorize police  
               officers to arrest trespassers without waiting for  
               property owners to be present. Police officers cannot  
               arrest a trespasser without the written approval of  
               the property owner or agent.  This can sometimes be  
               problematic for abandoned buildings, or businesses  
               that are closed in the evening for which the owner or  
               agent is not on site.  In the past, police departments  
               have required property owners or their agents to send  
               a letter to the police department authorizing trespass  
               arrests on their property.  By completing a simple  
               form, the property owner or agent may grant the police  
               department authorization to make a trespass arrest.   




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               Following submission of a request, a confirmation  
               email will be sent to the requester within 24 hours.   
               A reminder email will be sent five days prior to the  
               authorization expiration date, and again when the  
               authorization expires.  Upon the six month expiration,  
               a new authorization form may be completed. 

               The extension of the Trespass Arrest Authorization  
               form is necessary so the police department doesn't  
               risk litigation. Extending arrest authorization forms  
               from 6 to 12 months not only strengthens the  
               authorization of the form, but it significantly  
               reduces the administrative time for the police  
               departments processing them. Additionally, extending  
               the arrest authorization allows owners to file the  
               form only once a year, while keeping properties free  
               from unwanted individuals for a period of 12 months.

          2.  Trespass Laws are Very Complicated  

          The trespass laws include nine separate sections, each with  
          different crimes with separate elements.  The major trespass  
          section - 602 - has an entire alphabet's worth of subdivisions.   
          Most of the subdivisions in Section 602 define separate crimes,  
          typically each with slightly different elements than the other  
          subdivisions.


















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          Sponsors of trespass bills have noted to Committee staff that  
          law enforcement officers may appear to be reluctant or unwilling  
          to enforce existing trespass laws.  It is not inconceivable that  
          the complexity of the laws may leave law enforcement officers  
          confused or uncertain about the application of the laws.  Such  
          problems for law enforcement officers would be exacerbated if  
          officers do not often respond to trespass complaints.

          3.  Related Bill - SB 1295 (Block) would Indefinitely Extend Law  
            Enforcement Authority to Eject Trespassers from Property  
            Posted as Closed to the Public 
           
          Law Enforcement Assistance in Ejecting Trespassers where  
          Property is not Posted as Closed to the Public - Existing Law
          
          This bill amends Penal Code Section 602, subdivision (o), which  
          defines a form of trespass that is committed where a person  
          ignores or defies a request that he or she leave land or a  
          structure that is not open to the public.  Existing law limits  
          and regulates a property owner's ability to obtain law  
          enforcement assistance in removing trespassers.  Specifically,  
          existing law provides that when property is not posted as being  
          closed to the public and the property owner<1> requests that law  
          enforcement demand that a trespasser leave the property, the  
          owner or agent must make a separate request each time he or she  
          seeks law enforcement assistance.  Existing law includes an  
          exception under which a single request for law enforcement  
          assistance is valid for a specific time period, not to exceed 30  
          days, during which a fire hazard exists and the owner or owner's  
          agent is absent.  For these provisions to apply, the property  
          need not be posted as closed to the public.

          Law Enforcement Assistance in Ejecting Trespassers where  
          Property has been Posted as Closed to the Public in Existing Law  
          and as Amended in this Bill and SB 1295 (Block)
          
          This bill and SB 1295 (Block) amend a provision in subdivision  
          ---------------------------
          <1> The owner's agent or person in lawful possession of the  
          property, such as a lessee, also may request law enforcement  
          assistance in preventing trespass or ejecting trespassers.



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          (o) of Section 602<2> that applies where the property has been  
          posted as being closed to the public.  Under existing law, a  
          single request for law enforcement assistance in ejecting  
          trespassers from property posted as closed to the public is  
          effective for six months.  This bill extends law enforcement  
          authority to eject trespassers from posted land to one year.  SB  
          1295 (Blocks) extends the authority indefinitely. 

          Indefinite or permanent law enforcement authority to execute the  
          owner's request that trespassers leave the property could be  
          problematic.  Permanent law enforcement authority to eject  
          trespassers could result in confusion and unnecessary arrests if  
          the property changes hands and the new owner or renter does not  
          want law enforcement to request that persons on the property  
          leave.  For example, in many beach communities substantial  
          conflicts about access to the shore have often arisen,<3> with  
          law enforcement officers caught in the middle.  A new owner of  
          oceanfront property without a public easement for beach access  
          could have given permission for surfers to walk through the  
          property to reach a good surfing spot.  However, police officers  
          - expecting that an owner's request to eject trespassers from  
          property posted as closed to the public would continue - could  
          arrest persons who did have permission to cross the property.   
          To address these concerns, the analysis of SB 1295 (Block)  
          recommended that the bill be amended to provide for certain and  
          clear expiration or cancellation of a request for law  
          enforcement assistance in ejecting trespassers.  The author's  
          office is researching and weighing options to address the issues  
          presented by SB 1295.  That bill is on Senate Third Reading.

          4.  Conforming this Bill and SB 1295 - Clear and Consistent  
          ---------------------------
          <2> This bill and SB 1295 (Block) must be conformed or one bill  
          will chapter-out the other.
          <3>  
          http://www.nytimes.com/2005/06/05/fashion/sundaystyles/05beach.ht 
          ml?pagewanted=all&_r=0  ;  
                http://articles.latimes.com/2012/jan/16/local/la-me-malibu-201201 
          16  ;  
          http://scholarworks.calstate.edu/bitstream/handle/10211.2/1731/Da 
          vidsonRonald200510.pdf?sequence=3











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            Trespass Remedies and Avoidance of Chaptering Issues  

          The author of this bill and the author of SB 1295 (Block) have  
          been in discussions about amending the bills to be consistent in  
          addressing concerns of property owners of land posted as closed  
          to the public.  The authors also understand that the two bills  
          must be conformed to avoid chaptering-out problems. 

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