BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 952 (Torres)
As Introduced: February 6, 2014
Hearing date: April 1, 2014
Government Code
JRD:sl
PROHIBITED FINANCIAL INTERESTS: AIDING AND ABETTING
HISTORY
Source: Unknown
Prior Legislation: SB 655 (Presley) - Ch. 82, Stats. 1990
AB 850 (De La Torre) - 1999, failed in Assembly
Appropriations
AB 1059 (Wieckowski) - 2013, not heard by a
committee
Support: California District Attorneys Association; California
Police Chiefs Association
Opposition:None known
KEY ISSUE
SHOULD THE GOVERNMENT CONFLICT OF INTEREST CODES INCLUDE AIDER AND
ABETTOR LIABILITY?
PURPOSE
The purpose of this bill is to prohibit an individual from aiding
or abetting a public officer or person in: (1) obtaining, or
maintaining, a financial interest in any contract made by the
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person in his or her official capacity; (2) being the purchaser
at any sale, or vendor at any purchase, made by the person in his
or her official capacity; (3) purchasing or selling, for his or
her own or any other person's use or benefit, any state, county
or city warrants, scrip, orders, demands, claims, or other
evidences of indebtedness against the state, as specified. A
violation of these provisions would be punishable by a fine that
is not more than one-thousand dollars, or by imprisonment in the
state prison.
Current law prohibits members of the Legislature, state, county,
district, judicial district and city officers or employees from
having a financial interest in any contract made by them in their
official capacity, or by any body or board of which they are
members. A violation of this prohibition is punishable by a fine
that is not more than one-thousand dollars, or by imprisonment in
the state prison. (Government Code § 1090 and 1097.)
Current law prohibits state, county, district, judicial district
and city officers or employees from being purchasers at any sale
or vendors at any purchase made by them in their official
capacity. A violation of this prohibition is punishable by a
fine that is not more than one-thousand dollars, or by
imprisonment in the state prison. (Government Code § 1090 and
1097.)
Current law prohibits the State Treasurer and Controller, county
and city officers, and their deputies and clerks from purchasing
or selling, or in any manner receive for their own or any other
person's use or benefit, any state, county or city warrants,
scrip, orders, demands, claims, or other evidences of
indebtedness against the state, or any county or city thereof. A
violation of this prohibition is punishable by a fine that is not
more than one-thousand dollars, or by imprisonment in the state
prison. (Government Code § 1093 and 1097.)
Current law states that all persons concerned in the commission
of a crime, whether it be felony or misdemeanor, and whether they
directly commit the act constituting the offense, or aid and abet
in its commission, are principals in any crime so committed.
(Penal Code § 31.)
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This bill would prohibit an individual from aiding or abetting a
public officer or person in violating the above prohibitions, and
expand the penalties to also apply to the individual who
willfully aids or abets, as specified.
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 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
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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, 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.
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The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
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. Effect of this Legislation
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In California, a defendant is guilty of a crime based on aiding
and abetting that crime if: (1) the perpetrator committed the
crime; (2) the defendant knew the perpetrator intended to commit
the crime; (3) before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing
the crime; and, (4) the defendant's words or conduct did in fact
aid and abet the perpetrator's commission of the crime. (1-400
CALCRIM 401.)
Courts have held that there is no aider and abettor liability
under Government Code section 1090. The court in D'Amato v.
Superior Court (2008) 167 Cal. App. 4th 861, held:
[T]he Legislature's wording of section 1090 evinces the
intent to exclude aider and abettor liability.
Specifically, "where the Legislature has dealt with
crimes which necessarily involve the joint action of
two or more persons, and where no punishment at all is
provided for the conduct, or misconduct, of one of the
participants, the party whose participation is not
denounced by statute cannot be charged with criminal
conduct on either a conspiracy or aiding and abetting
theory. [Citation.] So, although generally a defendant
may be liable to prosecution for conspiracy as an aider
and abettor to commit a crime even though he or she is
incapable of committing the crime itself, the rule does
not apply where the statute defining the substantive
offense discloses an affirmative legislative policy the
conduct of one of the parties shall go unpunished.
[Citation.]" [Citation.] (Id. at 873; see also In re
Meagan R. (1996) 42 Cal.App.4th 17, 24.)
The Fourth District Court of Appeals followed this holding in an
unpublished decision in
People v. Baine, 2012 Cal. App. Unpub. LEXIS 8038:
We share our colleagues' view that the Legislature
intended Government Code section 1090 to exclude
criminal liability on either a conspiracy or an aiding
and abetting theory for anyone other than public
officials and public employees with a financial
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interest in the underlying contract.
This legislation would clearly state that there is aider and
abettor liability under government code sections 1090 and
1093, and that aiders and abettors are subject to the
penalty provisions of government code section 1097.
According to statistics provided by the California
Department of Justice, between 2011 and 2013, there were 32
arrests for violations of Government Code 1090, and 11
convictions. There were no arrests or convictions for
violations of 1093. Given this, this legislation could
result in a small number of additional individuals being
sent to state prison.
SHOULD AIDING AND ABETTING A PUBLIC OFFICIAL OR PUBLIC
EMPLOYEE IN VIOLATING GOVERNMENT CODE SECTIONS 1090 AND 1093
BE A NEW FELONY?
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