BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
1
2
9
5
SB 1295 (Block)
As Amended: March 24, 2014
Hearing date: April 29, 2014
Penal Code
JM:sl
TRESPASS:
REFUSAL OF LAW ENFORCEMENT REQUEST TO LEAVE PROPERTY
HISTORY
Source: Ocean Beach Main Street Association
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: San Diego Chamber of Commerce
Opposition:California Attorneys for Criminal Justice; Taxpayers
for Improving Public Safety
KEY ISSUE
WHERE A PROPERTY OWNER REQUESTS LAW ENFORCEMENT ASSISTANCE IN
DEMANDING THAT TRESPASSERS LEAVE PROPERTY THAT HAS BEEN POSTED AS
NOT OPEN TO THE PUBLIC, SHOULD THE REQUEST REMAIN VALID FOR THE TIME
THE PROPERTY REMAINS CLOSED TO THE PUBLIC AND POSTED AS SUCH?
PURPOSE
(More)
SB 1295 (Block)
Page 2
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
while the property remains posted as closed to the public.
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 6 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
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).)
(More)
SB 1295 (Block)
Page 3
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 6 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
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,
(More)
SB 1295 (Block)
Page 4
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:
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
(More)
SB 1295 (Block)
Page 5
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 is valid for the entire time the
property remains closed to the public and the notice is posted.
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,
(More)
SB 1295 (Block)
Page 6
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,
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
(More)
SB 1295 (Block)
Page 7
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
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
(More)
SB 1295 (Block)
Page 8
According to the author:
Sponsors of the legislation report that requiring the
six-month reauthorization is burdensome and can lead
to gaps in service when timely reauthorization may not
be possible. Foregoing the six month reauthorization
will also ease the burden for local police departments
by removing the frequent processing of requests. In
some jurisdictions such as Ocean Beach, numerous
requests are submitted in a bundle and require a
significant amount of time to process.
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.
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.
ARE THE TRESPASS LAWS OVERLY COMPLEX AND DIFFICULT TO APPLY,
ESPECIALLY FOR OFFICERS IN THE FIELD?
3. Arguably, this Bill would make much of the Trespass Statute
Subdivision Amended by the Bill Superfluous
This bill amends Penal Code Section 602, subdivision (o), which
defines a form of trespass in which 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 the
property owner's exercise of remedies and assistance in removing
trespassers. Specifically, existing law provides that when the
property owner, or his or her agent or person in lawful
possession, requests that law enforcement make the demand that
(More)
SB 1295 (Block)
Page 9
the trespasser leave, 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. Another exception
authorizes a single request for law enforcement assistance in
ejecting trespassers to remain in force for six months if the
property or structure is closed to the public and posted as
such.
(More)
This bill would eliminate the six-month limit on a request for
law enforcement assistance in circumstances where the property
is posted as closed to the public. Thus, a request for law
enforcement assistance becomes permanent if the property or
structure is posted as being closed to the public. It would
appear likely that most property owners would post
no-trespassing signs if they are concerned about trespassers
harming the property, or using the property without consent, or
using the property without compensating the owner. Thus, this
exception would typically consume the rule that an owner must
make separate requests for law enforcement assistance in
ejecting trespassers.
The trespass laws appear to uphold the rights of a property
owner to control his or her property without unduly limiting the
legitimate activities of the public. For example, the owners of
a shopping center or the area near the entrance of a large store
cannot ban citizens from limited political activity - such as
collecting signatures for a petition drive - on the premises.
(Dan Hamburg v. Wal-Mart (2004) 116 Cal.App.4th 497, see also
Robins v. Pruneyard (1979) 23 Cal.3d 899.)
This bill presents a very different circumstance or setting than
the Hamburg and Pruneyard cases. The property or premises in
each of those cases was open to the public. The California
Supreme Court in Pruneyard essentially found that large,
privately owned shopping centers are akin to public squares of
the past, such that the rights of the property owner are
constrained by the public interest in encouraging citizen
involvement in public issues. (Robins v. Pruneyard, supra, 23
Cal.3d at p. 902.)
4. This Bill Provides no Process to Withdraw a Request that Law
Enforcement Demand or Request that any Trespasser Leave Land
or Structure that is Posted as not Open to the Public
Under existing law, the authority of a law enforcement to
request that a trespasser leave the land lasts for a limited
period of time. The request remains in force for 30 days where
a fire hazard is present on the property and for six months if
the property has been posted as not open to the public. Under
this bill, law enforcement authority to execute the owner's
(More)
SB 1295 (Block)
Page 11
request that trespassers leave the property is indefinite. This
could create confusion and unnecessary arrests if the property
changes hands and the new owner or person in lawful possession
does not want law enforcement to request that persons on the
property leave.
For certainty and clarity, perhaps the bill should be amended to
provide that the request to law enforcement to demand or request
that persons leave the property should expire upon transfer of
the property, unless the new owner confirms that law enforcement
authority remain in force without interruption. The bill could
also be amended to specifically state that law enforcement
authority to demand that trespassers leave the property shall
expire upon the request of the owner, owner's agent or person in
lawful possession of the property. The bill could perhaps also
provide that law enforcement should make reasonable efforts on
an annual basis to determine if law enforcement assistance in
ejecting trespassers is still wanted or needed.
SHOULD THE BILL PROVIDE THAT LAW ENFORCEMENT AUTHORITY TO EJECT
TRESPASSERS FROM PRIVATE PROPERTY SHALL EXPIRE WHEN OWNERSHIP OF
THE PROPERTY IS TRANSFERRED OR THE OWNER WITHDRAWS THE
AUTHORITY?
SHOULD LAW ENFORCEMENT MAKE REASONABLE EFFORTS ON AN ANNUAL
BASIS TO DETERMINE IF THE OWNER'S REQUEST FOR LAW ENFORCEMENT
ASSISTANCE IN ASKING TRESPASSERS TO LEAVE PROPERTY OR A
STRUCTURE IS STILL NEEDED OR WANTED?
***************