BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 487 Hearing Date: June 23, 2015
-----------------------------------------------------------------
|Author: |Gonzalez |
|-----------+-----------------------------------------------------|
|Version: |April 16, 2015 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|MK |
| | |
-----------------------------------------------------------------
Subject: Parole Hearings: Notification of District Attorneys
HISTORY
Source: San Diego County District Attorney
Prior Legislation:Proposition 9, Marsy's Law (2008)
Support: Association for Los Angeles Deputy Sheriffs;
Association of Deputy District Attorneys; California
College and University Police Chiefs Association;
California Correctional Supervisors Organization;
California District Attorneys Association; California
Police Chiefs Association Inc.; California Narcotic
Officers Association; California State Sheriffs'
Association; Crime Victims United of California;
County of San Diego; Los Angeles Deputy Sheriffs
Association; Los Angeles Police Protective League;
Riverside Sheriffs Association
Opposition:California Public Defenders Association
Assembly Floor Vote: 77 - 0
PURPOSE
AB 487 (Gonzalez ) Page
2 of ?
The purpose of this bill is to provide that when an inmate
requests advancement in a parole hearing the Board of Parole
Hearings must provide notice to the victim and to the district
attorney 30 days prior to making a decision.
Existing law provides guidelines for the Board of Parole
Hearings to schedule parole hearings for prisoners in California
Department of Correction and Rehabilitation for whom they are
appropriate. (Penal Code, § 3041.5.)
Existing law requires the board set a date to reconsider whether
an inmate should be released on parole that ensures a meaningful
consideration of whether the inmate is suitable for release on
parole. (Penal Code, § 3041.5.)
Existing law requires that within 10 days following any meeting
where a parole date has been set, the board shall send the
prisoner a written statement setting forth his or her parole
date, the conditions he or she must meet in order to be released
on the date set, and the consequences of failure to meet those
conditions. (Penal Code, § 3041(b)(1).)
Existing law requires that within 20 days following any meeting
where a parole date has not been set, the board shall send the
prisoner a written statement setting forth the reason or reasons
for refusal to set a parole date, and suggest activities in
which he or she might participate that will benefit him or her
while he or she is incarcerated. (Penal Code, § 3041.5 (b)(2).)
Existing law specifies that the board shall schedule the next
hearing, after considering the views and interests of the
victim, as follows:
Fifteen years after any hearing at which parole is
denied, unless the board finds by clear and convincing
evidence that the criteria relevant to the setting of
parole release dates enumerated in subdivision (a) of
Section 3041 are such that consideration of the public and
victim's safety does not require a more lengthy period of
incarceration for the prisoner than 10 additional years.
(Penal Code, § 3041.5 (b)(3)(A).)
Ten years after any hearing at which parole is denied,
unless the board finds by clear and convincing evidence
that the criteria relevant to the setting of parole release
AB 487 (Gonzalez ) Page
3 of ?
dates enumerated in subdivision (a) of Section 3041 are
such that consideration of the public and victim's safety
does not require a more lengthy period of incarceration for
the prisoner than seven additional years. (Penal Code, §
3041.5 (b)(3)(B).) Three years, five years, or seven
years after any hearing at which parole is denied, because
the criteria relevant to the setting of parole release
dates enumerated in subdivision (a) of Section 3041 are
such that consideration of the public and victim's safety
requires a more lengthy period of incarceration for the
prisoner, but does not require a more lengthy period of
incarceration for the prisoner than seven additional years.
(Pen. Code, § 3041.5, subd. (b)(3)(c).)
Existing law allows the Board of Parole Hearings discretion,
after considering the views and interests of the victim, advance
a parole hearing to an earlier date, when a change in
circumstances or new information establishes a reasonable
likelihood that consideration of the public and victim's safety
does not require the additional period of incarceration of the
prisoner. (Penal Code, § 3041.5 (b)(4).)
Existing law allows an inmate to request that the board exercise
its discretion to advance a hearing set pursuant to paragraph
(3) of subdivision (b) to an earlier date, by submitting a
written request to the board, with notice, upon request, and a
copy to the victim which shall set forth the change in
circumstances or new information that establishes a reasonable
likelihood that consideration of the public safety does not
require the additional period of incarceration of the inmate.
(Penal Code § 3041.5 (d)(1).)
Existing law mandates that the board shall have sole
jurisdiction, after considering the views and interests of the
victim to determine whether to grant or deny a written request
to advance the hearing, and its decision shall be subject to
review by a court or magistrate only for a manifest abuse of
discretion by the board. The board shall have the power to
summarily deny a request that does not comply with the
provisions of this subdivision or that does not set forth a
change in circumstances or new information as required. (Pen.
Code, § 3041.5, sub. (d)(2).)
Existing law specifies an inmate may make only one written
AB 487 (Gonzalez ) Page
4 of ?
request to advance a hearing during each three-year period.
Following either a summary denial of a request to advance a
hearing, or the decision of the board after a hearing to not set
a parole date, the inmate shall not be entitled to submit
another request for a hearing pursuant to subdivision to set a
parole date until a three-year period of time has elapsed from
the summary denial or decision of the board. (Penal Code, §
3041.5 (d)(3).)
Existing law specifies that within 10 days of any board action
resulting in the postponement of a previously set parole date,
the board shall send the prisoner a written statement setting
forth a new date and the reason or reasons for that action and
shall offer the prisoner an opportunity for review of that
action. (Penal Code § 3041.5 (b)(5).)
Existing law requires that within 10 days of any board action
resulting in the rescinding of a previously set parole date, the
board shall send the prisoner a written statement setting forth
the reason or reasons for that action, and shall schedule the
prisoner's next hearing as specified. (Penal Code, § 3041.5
(b)(6).)
Existing law requires the board conduct a parole hearing as a de
novo hearing. Findings made and conclusions reached in a prior
parole hearing shall be considered in but shall not be deemed to
be binding upon subsequent parole hearings for an inmate, but
shall be subject to reconsideration based upon changed facts and
circumstances. When conducting a hearing, the board shall admit
the prior recorded or memorialized testimony or statement of a
victim or witness, upon request of the victim or if the victim
or witness has died or become unavailable. At each hearing the
board shall determine the appropriate action to be taken based
on the criteria set forth in Penal Code Section 3041. (Penal
Code, § 3041.5 (c).)
This bill requires that when an inmate requests that the parole
board advance a parole hearing to an earlier date, by submitting
a written request to the board, notice be sent to the district
attorney of the county in which the offense was committed and to
the victim, if the victim requested notification.
This bill requires notice of the inmate's request to advance the
parole hearing to be forwarded by the parole board to the
AB 487 (Gonzalez ) Page
5 of ?
district attorney and the victim, if the victim requested
notification, no less than 30 days before the board may grant
the inmate's request.
This bill specifies that a failure to notify the district
attorney or the victim, if the victim requested notification, of
a request to advance the hearing shall postpone any action being
taken on the hearing advancement until the notice is properly
made.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
AB 487 (Gonzalez ) Page
6 of ?
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
In 2008, California voters passed the Victims' Bill of
Rights Act, better known as Marsy's Law. This Amendment to
the State's Constitution and certain Penal Code sections
protects and expands the legal rights of victims of crime to
include 17 rights in the judicial process, including the
right to legal standing, protection from the defendant,
notification of all court proceedings, and restitution, as
well as being noticed and to be heard at any proceeding.
Unfortunately, existing law only requires that the
Board of Parole Hearings notify the victims or next of
kin in an inmate files a petition to advance their
parole date, omitting the District Attorney in the
notification process.
AB 487 (Gonzalez ) Page
7 of ?
According to the San Diego County District Attorney's
office, some victims are not getting notified in a
timely fashion. AB 487 will ensure that when an inmate
files such petitions, the District Attorney of the
pertinent jurisdiction will also be notified. The bill
will also postpone the requested petition if the Board
of Parole fails to notify the victim and the DA, only
until this requirement is met.
2. Marsy's Law (Proposition 9, 2008)
Proposition 9 was passed by the voters of in 2008. Proposition 9
included a victims' bill of rights. Among the protections in the
victims' bill of rights, was the right for victims to be noticed
of criminal proceedings in which they were a victim.
Proposition 9 also provided victims with the right to be heard
at criminal proceedings. Victims can express their views
personally, or through a representative. Criminal proceedings
where victims have a right to notice and expression of views
include parole hearings for inmates serving indeterminate life
terms in the California Department of Corrections and
Rehabilitation (CDCR).
Proposition 9 set forth the time frames for which a future
parole hearing shall be set following the denial of parole. The
law also provides a procedure for a person to ask for a hearing
date to be advanced because of a change in circumstances or new
information that establishes a reasonable likelihood that
consideration of the public safety does not require the
additional period of incarceration of an inmate.
3. Notice to the District Attorney
The law currently requires that a victim be notified when an
inmate requests advancement in his or parole hearing date. This
bill provides that at least 30 days before the Board of Parole
Hearings makes a decision on a request to advance a parole
hearing, the board must notify the district attorney and the
victim, if the victim has requested notification. The bill
specifies that notice shall be satisfies by mailing copies of
the inmate's to the office of the district attorney and to the
last address provided by the victim of the Office of Victim and
Survivor Rights and Services.
AB 487 (Gonzalez ) Page
8 of ?
4. "Remedy For Failure to Provide Notification"
Under existing law there are other sections that require notice
by the Board of Parole Hearings in specific time frames. For
example, Penal Code Section 3042 requires that 30 days before
the Board of Prison Terms meets to review or consider the parole
suitability or setting of a parole date for any prisoner
sentenced to life the board shall notify the judge, the defense
attorney, the district attorney and the law enforcement agency
of the county where the prisoner was involved in the conviction.
Penal Code Section 3043 also has a number of notice
requirements relating to victims' statements and other people
entitled to attend the hearing. In both of these sections no
remedy is specified. If a violation of these sections is found
at a hearing the Commissioners present have the ability to
postpone the hearing or make any other accommodations they deem
appropriate.
Unlike the sections above, or any other notice section governing
the Board of Parole Hearings, this bill provides that failure to
provide notification shall postpone any action being taken on
the hearing advancement until the notice is properly made. This
gives no ability for the commissioners to decide the appropriate
remedy based on the situation at hand. What if there was
technically failure to send the notice 30 days in advance but it
was sent 29 days in advance and everyone showed up and wants to
have the decision made that day? This bill would not allow the
district attorney and the victims who may have traveled to the
hearing to waive this provision and allow the action on the
decision to be made. Is it appropriate to have the remedy in
law or would it be better to allow the Board of Parole Hearings
to fashion the appropriate remedy when notice has not been made
as they do in every other situation where notice is required?
The appropriate remedies could vary case by case. Was the
notice sent but not received? Was the notice sent and received
but mailed in less than 30 days? Did those who were supposed to
be noticed appear or have time to make their position known,
whether or not the notice was mailed 30 or more days prior to
the date of the decision? Was the notice sent in a timely manner
but the victim for other reasons could use more time? Any of
these scenarios are foreseeable and continuing the hearing on
advancement would not always be the best solution for any or all
of them. Yet, even if the district attorney and victim make a
AB 487 (Gonzalez ) Page
9 of ?
trip to the hearing, this bill would require the hearing to be
continued. Should the bill be silent on the remedy?
-- END -