BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 6 8 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 (More) AB 1686 (Medina) PageB 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 (More) AB 1686 (Medina) PageC 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 (More) AB 1686 (Medina) PageD 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: (More) AB 1686 (Medina) PageE 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 (More) AB 1686 (Medina) PageF 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, (More) AB 1686 (Medina) PageG 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 (More) AB 1686 (Medina) PageH 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. (More) AB 1686 (Medina) PageI 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. (More) 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. (More) AB 1686 (Medina) PageK (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 AB 1686 (Medina) PageL 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. ***************