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  











                                                                    AB 1877


                                                                     Page B


            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  











                                                                    AB 1877


                                                                     Page C


            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











                                                                    AB 1877


                                                                     Page D


            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        |    |    |    |    |











                                                                    AB 1877


                                                                     Page E


          |                                     |    |    |    |    |
          |                                     |    |    |    |    |
          |-------------------------------------+----+----+----+----|
          |  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.












                                                                    AB 1877


                                                                     Page F


            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.)  











                                                                    AB 1877


                                                                     Page G



            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.












                                                                    AB 1877


                                                                     Page H


          "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


                                                                     Page I


          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