BILL ANALYSIS Ó
AB 1877
Page A
Date of Hearing: April 5, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1877 (Linder) - As Amended March 15, 2016
SUMMARY: Increases the penalties for the crime of indecent
exposure. Specifically, this bill:
1)Makes the first conviction of indecent exposure occurring in a
prison or jail punishable as a felony in state prison.
2)Makes the first conviction of indecent exposure committed by a
person required to register as a sex offender punishable as a
felony in state prison.
EXISTING LAW:
3)Provides that a person who willfully and lewdly exposes his or
her private parts in a public place or in any place where
there are others present to be offended or annoyed is guilty
of indecent exposure. (Pen. Code, § 314.)
4)Provides that person who willfully and lewdly procures,
counsel, or assists any person to expose himself or take part
in any model artist exhibition, or to make any other
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exhibition of himself or herself to public view, or the view
of another, such as is offensive to decency is guilty of
indecent exposure. (Pen. Code, § 314.)
5)Provides that indecent exposure is punishable as follows:
a) A first conviction is punishable as a misdemeanor, and
second or subsequent conviction is a felony punishable in
the state prison; except,
b) A first conviction when committed after having entered
an inhabited dwelling, trailer, or building without consent
is an alternate felony/misdemeanor punishable in the county
jail for up to one year, or in the state prison; and,
c) A first conviction after a prior conviction for lewd
acts with a minor is a felony punishable in state prison.
(Pen. Code, § 314.)
6)Requires a person convicted of indecent exposure to register
as a sex offender for life. (Pen. Code, § 290, subd. (c).)
7)States that if a person is convicted of one or more felonies
committed while the person is confined in state prison, ? and
the law either requires the term to be served consecutively,
or the court imposes consecutive terms, then the term of
imprisonment for all the convictions that the person is
required to serve consecutively shall commence from the time
the person would otherwise have been released from prison.
(Pen. Code, § 1107.1, subd. (c).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 1877 seeks
to protect female staff in prisons or county jails by
strengthening the punishment for indecent exposure, which can
be used as a weapon against those who provide services to
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inmates. The legislature should always aim to protect those
who put their lives at risk to keep the public safe. By
increasing the punishment from a misdemeanor to a felony when
indecent exposure occurs in prison, or if the individual is a
registered sex offender, the parties involved will have a
higher incentive to prosecute such cases."
2)Prison Overcrowding: In January 2010, a three-judge panel
issued a ruling ordering the State of California to reduce its
prison population to 137.5% of design capacity because
overcrowding was the primary reason that CDCR was unable to
provide inmates with constitutionally adequate healthcare.
(Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK
JFM P/NO. C01-1351 THE.) The United State Supreme Court
upheld the decision, declaring that "without a reduction in
overcrowding, there will be no efficacious remedy for the
unconstitutional care of the sick and mentally ill" inmates in
California's prisons. (Brown v. Plata (2011) 131 S.Ct. 1910,
1939; 179 L.Ed.2d 969, 999.)
After continued litigation, 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.
A recent report on the status of corrections notes:
"The Department's total adult inmate population as of December
9, 2015, was 127,468, of which 112,510 were housed in the
Department's adult institutions, and the remaining
14,958 were housed in fire camps or contract beds. The
December 9, 2015 institution
population was 136.0 percent of design capacity, or 1,212
inmates below the 137.5-percent
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population cap based on currently constructed capacity. While
the activation of three infill
facilities will add capacity of 3,267, fall 2015 population
projections estimate the total inmate
population will increase to 131,092 by June 2020, an increase
of 3,624 inmates over the
December 9, 2015 population. Therefore, without further
population reduction measuresor capacity, the state will not
be able to further reduce the use of contract beds, or close
state-owned facilities." (An Update to the Future of
California Corrections, January 2016, p. 25,
< http://www.cdcr.ca.gov/Blueprint-Update-2016/An-Update-to-the-
Future-of-California-Corrections-January-2016.pdf >.)
In other words, the state needs a "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).) However, the prison population is
currently projected to increase.
CDCR has provided this Committee the following data regarding
the number of indecent exposure incidents at its institutions:
----------------------------------------------------------
| Indecent Exposure Incidents | Totals |
| | |
| | |
----------------------------------------------------------
|-------------------------------------+----+----+----+----|
| |2012|2013|2014|2015|
| | | | | |
| | | | | |
| | | | | |
|-------------------------------------+----+----+----+----|
| Total Number of Incidents - |1015|1011|1159|1257|
| Indecent Exposure Incidents | | | | |
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| | | | | |
| | | | | |
|-------------------------------------+----+----+----+----|
| Number of DA Referrals - Indecent |1029|1033|1172|1259|
| Exposure Incidents<1> | | | | |
| | | | | |
| | | | | |
---------------------------------------------------------
This bill also applies to inmates in jails. As written, the bill
would apply to pre-trial detainees and persons serving a
sentence under realignment. So, presumably the number of
felony convictions which would mandate a state prison sentence
could be much higher than the numbers provided by CDCR. Given
the high number of these incidents which occur annually, this
bill raises concerns for maintaining a durable solution to
prison overcrowding.
1)CDCR Policies on Indecent Exposure: In 2007, CDCR enacted new
policies for handling incidents of indecent exposure by
inmates after a female officer sued the department and the
court determined that CDCR could be held liable for failure to
correct a hostile work environment by failing to take prompt
and reasonable corrective action to address inmate misconduct.
(See Freitag v. Ayers (2006) 468 F.3d 528.)
CDCR's Department Operations Manual states, "An inmate who
engages in indecent exposure or sexual disorderly conduct
shall be subject to a variety of security measures in an
attempt to identify, prevent, reduce, and eliminate the
opportunity to repeat the behavior." (Department Operations
Manual, Article 25, § 52100.2) These security measures are
"designed to decrease the opportunity for the inmate to repeat
the behavior and/or minimize the impact that the behavior has
--------------------------
<1> The referrals to the district attorneys are higher than the
total number is because one incident can involve multiple
victims or multiple defendants.
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on prison staff and others." There are two types of security
measures: immediate security precautions and
post-disciplinary restrictions. (Id. at § 52100.4.)
Security precautions include: (1) designating a cell door
with a yellow placard, window covering, or other device to
both alert staff to an inmate's propensity to engage in the
prohibited conduct, as well as to limit the inmate's ability
to see staff while engaging in the misconduct; (2) requiring
the inmate to wear an exposure control jumpsuit to limit the
inmate's ability to expose himself; (3) temporary restrictions
from the yard or other common areas which may provide a venue
for the behavior; and (4) substitution of setting to reduce
the possibility of the behavior impacting staff, such as
placement in administrative segregation. (Id. at § 52100.4.)
What security measures are used and their duration, depends on
whether the indecent exposure occurred in a common area as
opposed to a cell, and whether the offense is a first or
subsequent offense. However, yellow cell front coverings are
required for all indecent exposure incidents. (Id. at §
52100.4.)
In addition to the security measures, an inmate who commits an
act of indecent exposure is also subject to disciplinary
restrictions after a finding of guilt in a disciplinary
hearing. An inmate with a pending disciplinary hearing must
be placed in an administrative segregation unit, and if found
guilty of indecent exposure through a disciplinary hearing can
be placed in a secured housing unit. The inmate will also be
subject to privilege losses. A first offense of indecent
exposure can result in a loss of privileges, including
canteen, appliance, vendor packages, phone, and personal
property, of up to 90 days. A second offense can result in a
loss of any or all of those privileges for up to 180 days.
(Id. at § 52100.4.) In addition to loss of privileges, an
inmate who commits indecent exposure may be subject to a loss
of credits. Further, a guilty finding for indecent exposure
on a disciplinary report may result in a prohibition of family
visits, which may be permanent. (Id. at § 52100.4.)
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Finally, CDCR requires that all indecent exposure incidents be
referred to the district attorney. This referral is to
include an explanation of the reason why indecent exposure
misdemeanor cases require prosecution, namely to obtain felony
convictions for repeat offenders. (Id. at § 52100.4.) CDCR
has recognized that historically district attorneys have not
readily prosecuted misdemeanors committed by inmates in
prison. Therefore, CDCR aggressively seeks prosecution and
conviction of the misdemeanor charge, thereby allowing future
violations to be charged as felonies.
2)Argument in Support: According to the Sacramento County
District Attorney's Office, "Across the state, in counties
that have prisons in their jurisdictions, there have been an
explosion of indecent exposure (Penal Code section 314) cases
occurring in state prisons. In Sacramento County alone, our
office currently reviews 15-20 cases almost every week. In
many cases, the inmates target female staff members, usually
civilians like nurses or psych technicians, occasionally
psychiatrists and female correctional officers, to humiliate
and intimidate them by standing on their bunks or toilets to
force the female staff to see them masturbating. It is
particularly bad when staff are assigned to watch an inmate,
even after having been the victim of indecent exposure earlier
in the same day from the same inmate."
3)Argument in Opposition: According to the California Public
Defenders Association, "AB 1877 would amend Penal Code section
314 to punish a first conviction of lewd conduct in a county
jail or prison more harshly than such lewd conduct in public
places. It would increase the penalty from a six month
misdemeanor to a state prison felony.
"Under existing law, Penal Code section 314 punishes a first
conviction with a maximum of six months in county jail.
Second or subsequent convictions are punishable by state
prison.
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"Although county jail and state prison employees may be
confronted by lewd conduct by pretrial detainees and prisoners
more often than the general public, they also may be less
sensitized to such conduct. Additionally, there are
procedures to write up inmates for rule breaking that deal
with such behavior with lesser sanctions, i.e., loss of good
conduct credits for 115 Rule Violations in state prison.
"Moreover, many of the individuals in California jails and
prisons are mentally ill.?
"Such mentally ill individuals are more likely to act out and be
unable to conform their behaviors. Punishing the mentally ill
for being mentally ill by charging them with a felony for a
non-violent offense is bad public policy.?
"The federal court order mandating that California comply with
caps on its prison population remains in effect. AB 1877
undercuts the state's effort to comply with that order for no
appreciable gain."
4)Related Legislation: AB 2803 (Salas) makes it a felony for a
prisoner to distribute in any state prison facility or local
jail prescribed communications that contain an overt or
disguised request or instructions to cause harm, great bodily
injury, or death to another person. AB 2803 is pending
hearing in this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Amador County District Attorney
California District Attorneys Association
Kern County District Attorney
Sacramento County District Attorney
Opposition
AB 1877
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American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744