BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 487        Hearing Date:    June 23, 2015    
          
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          |Author:    |Gonzalez                                             |
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          |Version:   |April 16, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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            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








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          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  








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               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  








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          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  








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          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  








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          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. 








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               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.








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          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  








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          trip to the hearing, this bill would require the hearing to be  
          continued.  Should the bill be silent on the remedy?


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