BILL ANALYSIS                                                                                                                                                                                                    







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

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          SB 333 (Lieu)                                               
          As Introduced February 19, 2013
          Hearing date:  April 9, 2013
          Penal Code
          MK:mc

                                 CRIMES: EMERGENCIES:

                                   FALSE REPORTING  


                                       HISTORY

          Source:  Los Angeles County Sheriff's Department

          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: Riverside Sheriffs Association; Association for Los  
                   Angeles Deputy Sheriffs; Los Angeles Police Protective  
                   League; California Police Chiefs Association;  
                   California State Sheriffs' Association

          Opposition:California Attorneys for Criminal Justice


                                      KEY ISSUES
           
          SHOULD THE MINIMUM JAIL TIME FOR MISDEMEANOR FILING OF A FALSE  
          EMERGENCY REPORT BE 120 DAYS?

          SHOULD A PERSON GRANTED PROBATION FOR FILING A FALSE EMERGENCY  




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          REPORT BE REQUIRED TO SERVE A MINIMUM OF 120 DAYS IN JAIL?

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          SHOULD THE REQUIREMENT THAT A PERSON KNEW OR SHOULD HAVE KNOWN THAT  
          A FALSE REPORT COULD LEAD TO DEATH OR INJURY BE REMOVED IN ORDER FOR  
          A PERSON TO BE CHARGED WITH A FELONY IF AN INJURY OCCURS?

          SHOULD AN INDIVIDUAL CONVICTED OF MAKING A FALSE EMERGENCY REPORT BE  
          LIABLE TO THE PUBLIC AGENCY FOR THE REASONABLE COSTS OF THE  
          EMERGENCY RESPONSE BY THE PUBLIC AGENCY?



                                       PURPOSE

          The purpose of this bill is to 1) set a minimum jail time for  
          misdemeanor filing of a false emergency report, whether or not a  
          person is granted probation; 2) remove the requirement that a  
          person knew or should have known that the false emergency report  
          could result in death or injury in order for the person to be  
          charged with a felony; and 3) make a person convicted of filing  
          a false emergency report liable for the cost of the response.

           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).)

           This bill  would provide that the sentence for the above  
          misdemeanor would be a minimum of 120 days not exceeding one  
          year.





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           This bill  provides that any individual convicted of the above  
          who is granted probation shall be confined in the county jail  
          for at least 120 days as a condition of probation.  That minimum  
          sentence shall be imposed unless the court finds that it is in  
          the interests of justice not to impose that sentence, and states  
          on the record the reasons why justice would be served by not  
          imposing the minimum jail sentence.

           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 any "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).)

           This bill  removes the requirement that the person knew or should  
          have known that the false report was likely to cause death or  
          great bodily injury in order for the person to be charged with a  
          felony violation.

           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).)

           This bill  provides that any individual convicted of violating  
          this section, resulting 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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                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          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 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 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 oppose the state's  
          motion, argue in part that, "California prisons, which currently  
          average 150% of capacity, and reach as high as 185% of capacity  




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          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.  

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unsettled.  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:

               "Swatting" recently has grown to near-epidemic  
               proportions in California-particularly throughout Los  
               Angeles County.  Swatting is when an individual makes  
               prank calls and/or false reports of violent crimes to  




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               law enforcement in an attempt to solicit a tactical  
               police response that often includes a SWAT team (thus  
               the term "swatting").

               These hoax 911 calls have become increasingly common in  
               the past few months as they involve entertainers,  
               celebrities and other public officials.  Swatting  
               victims include Simon Cowell, Ashton Kutcher, Tom  
               Cruise, the Kardashians, Chris Brown, Charlie Sheen,  
               Miley Cyrus, Justin Bieber, Clint Eastwood and others.   
               But celebrities are not the only ones who have been  
               targeted; the U.S. Coast Guard, many private  
               individuals, and local law enforcement officials have  
               also fallen victim to the swatting hoax.

               Swatting incidents have already resulted in injuries  
               for several responding officers, and many law  
               enforcement officials fear that it is only a matter of  
               time before events take a deadly turn.  Los Angeles  
               Police Chief Charlie Beck acknowledged in the Los  
               Angeles Times that swatting has stretched the LAPD's  
               emergency response capacity while also endangering  
               victims by placing them in potential confrontation with  
               police.

               Swatting not only is an inconvenience to the victims  
               but also a costly waste of precious law enforcement  
               resources.  Law enforcement takes every emergency  
               reported and uses its resources to maximize public  
               safety.  But at a time a false report is given, law  
               enforcement is unaware that it is a hoax-until they get  
               to the scene of the alleged crime.

               Current law allows for either misdemeanor or felony  
               charges, depending on the judge's discretion, for those  
               convicted of making false emergency reports.  But the  
               law is so burdensome that no one ever has been charged  
               with a felony.





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               Given recent tragedies involving gun violence  
               nationwide, pranks that divert public safety resources  
               are far from harmless, and, in fact, are the last thing  
               needed; they must be deterred.  This bill seeks to  
               create a greater deterrent and provide law enforcement  
               with the ability to help recoup expenses within the  
               criminal case, which reportedly can run as high as  
               $10,000 per incident.

          2.    Mandatory Jail Time With or Without Probation  

          Existing law makes it a misdemeanor for making a false report  
          that an "emergency" exists knowing that the report is false.  If  
          convicted a person faces up to one year in county jail and a  
          fine not exceeding $1,000.  This bill would provide that a  
          person must be sentenced to a minimum of 120 days in jail even  
          if probation is granted.  If probation is granted the judge may  
          not impose the minimum sentence if the judge states why on the  
          record in the interest of justice it shall not be imposed. 

          As noted in the author's statement, "swatting" - making a false  
          call claiming an emergency to mobilize multiple law enforcement  
          units-has become a problem in some jurisdictions.  The news  
          articles submitted by the author suggest that the caller in at  
          least some of the recent incidents in Los Angeles was a 12 year  
          old boy.

          A person may already be sentenced to up to one year in jail so  
          it is unclear what deterrent effect a mandatory 120-day sentence  
          would have on these callers.  The district attorney can ask for  
          a longer sentence when appropriate, and the judge can sentence  
          when appropriate.  Many jails in the state are overcrowded.   
          Would this 120-day sentence impact on how a sheriff could  
          control his or her jail population?  Would it require this  
          person to be held for their entire minimum sentence while the  
          sheriff may have to release, for example, a sex offender who has  
          committed a parole violation, or some other person who has  
          committed a serious or violent offense early?
          It is also unclear what impact this will have on the court case  




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          load.  If a person must serve 120 days whether or not they are  
          given probation, what incentive does a person have to not bring  
          a case to trial?  Why would a person agree to probation  
          conditions when he or she could possibly serve the same amount  
          of time in jail and be released?  In this type of case could the  
          use of conditions of probation be a more appropriate sentence  
          than jail time?  It appears at least some of the calls are made  
          using computers to make it appear as if the calls are coming  
          from elsewhere.  A probation condition limiting access to  
          computers, the internet, etc., might be a deterrent to a person  
          who uses technology in this way.
































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          3.   Expansion of Existing Jail Felony by Making it a Strict  
          Liability Offense  

          In addition to the misdemeanor described above, existing law  
          makes it a felony to make a false emergency report when the  
          person knows or should have known that the response to the  
          report is likely to cause death or great bodily injury, and  
          great bodily injury or death is sustained as a result of the  
          false report.  The penalty for this felony is 16 months, two or  
          three years in jail.

          This bill removes the requirement that a person knew or should  
          have known that the false report was likely to cause death or  
          great bodily injury.  This would make it a strict liability  
          felony.  "Should have known" is a reasonable person standard.  A  
          district attorney would have to convince a jury that a  
          reasonable person would know that claiming an emergency which  
          would have a large number of armed law enforcement officers  
          descending on a place of residence or causing an area to be  
          searched could result in someone being injured or killed.   
          Common sense says a "reasonable" adult with no mental  
          disabilities should know this; on the other hand, a "reasonable"  
          12-year old might not.  

          Removing the "knew or should have known" requirement from this  
          section removes an element that the district attorney has to  
          prove and arguably will make these cases easier to prosecute  
          these offenses and not take into account the mental capacity of  
          the person charged, thus likely increasing the number of  
          prosecutions for this jail felony. 

          The sponsor argues that "these false emergencies can be very  
          dangerous and create hazardous situations for all involved."

          In opposition, California Attorneys for Criminal Justice (CACJ)  
          notes:

               This attempt to create a kind of "strict liability"  
               which exists in tort litigation is antithetical to our  




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               notions of fairness and most settled principles of  
               justice.  An attempt to render someone criminally  
               liable (or in this case, to elevate misdemeanor conduct  
               to a felony) without any requirement of intent to cause  
               a specified result or knowledge of the possibility that  
               result may occur does not exist anywhere else in the  
               Penal Code.






          4.    Liability for Costs  

          This bill provides that a person convicted of making a false  
          emergency report that results in an emergency response is liable  
          to the public agency for the reasonable costs of the emergency  
          response by the public agency.  CACJ notes that Penal Code  
          Section 653x already allows reasonable costs incurred when a 911  
          call is made with the intent to harass, and could be  
          alternatively charged in one of these cases.  Existing law also  
          allows which for the cost of emergency response in cases where a  
          person knowingly enters into an area closed to the public or  
          drives on a street closed for flooding; however, that amount of  
          liability is limited to $12,000. (Government Code  53155;  
          53159.)  Restitution is also given to victims in a criminal  
          case, although it may not be clear that the government agency  
          that responds is a "victim" and whether the court can order  
          reimbursement currently in these cases.  If not, then any of  
          these costs would be in addition to any reimbursement ordered to  
          a victim if one is identified.


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