BILL ANALYSIS Ó
AB 2803
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Date of Hearing: April 19, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2803 (Salas) - As Introduced February 19, 2016
SUMMARY: Makes it a felony to possess, manufacture, or
distribute a "kite" in prison or jail containing instructions to
harm or kill another. Specifically, this bill:
1)States that any person who knowingly possesses, manufactures,
or distributes in any specified custodial setting, any
writing, item, material, or electronic communication with
knowledge that the communication contains an overt or
disguised request or instructions to cause harm, great bodily
injury, or death to another person is guilty of a felony.
2)Punishes this conduct by imprisonment in a county jail for
two, three, or four years under Realignment, or by two, three,
or four years in state prison if the defendant committed the
crime while a prisoner in a state facility.
EXISTING LAW:
1)Provides that any person who, without the permission of the
warden or officer in charge, communicates with any prisoner,
or brings or takes from the institution a letter, writing,
literature, or reading material is guilty of a misdemeanor.
(Pen. Code, § 4570.)
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2)States that an attempt to commit a crime consists of a
specific intent to commit the crime and a direct (but
ineffective) act toward committing that crime. (Pen. Code, §
21a.)
3)Punishes the crime of attempt as follows:
a) If the crime attempted is punishable by imprisonment in
the state prison, or by imprisonment in the county jail
under Realignment, the person shall be punished by
imprisonment in the state prison or in a county jail,
respectively, for one-half the term of imprisonment
prescribed upon a conviction of the offense attempted;
b) If the crime attempted is one in which the maximum
sentence is life imprisonment or death, the person shall be
punished by imprisonment in the state prison for five,
seven, or nine years;
c) If the crime attempted is punishable by imprisonment in
a county jail, the person shall be punished by imprisonment
in a county jail for up to one-half the term of
imprisonment prescribed upon a conviction of the offense
attempted;
d) If the crime attempted is willful, deliberate, and
premeditated murder, the person that shall be punished by
imprisonment in the state prison for life with the
possibility of parole; and,
e) If the attempted murder is against a peace officer, a
custodial officer, a custody assistant, or a nonsworn
uniformed employee of a sheriff's department whose job
entails the care or control of inmates in a detention
facility, and the person who commits the offense knows or
reasonably should know that the victim is a custodial
officer, custody assistant, or nonsworn uniformed employee
of a sheriff's department engaged in the performance of his
or her duties, the person guilty of the attempt shall be
punished by imprisonment in the state prison for life with
the possibility of parole. (Pen. Code, § 664.)
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4)States that conspiracy occurs when two or more persons
conspire to commit any crime, and one person commits an overt
act in furtherance of the agreement. (Pen. Code, § 182.)
5)Punishes the offense of conspiracy as follows:
a) Conspiracy to commit any felony (except specified
felonies) is punished with same penalties that are imposed
in connection with that felony;
b) Conspiracy to commit two or more different felonies, all
of which are part of the same conspiracy, faces the same
penalties as the felony which has the most severe sentence;
and,
c) Conspiracy to commit murder is punished as first degree
murder. (Pen. Code, § 182.)
6)States that a person who solicits another to commit or join in
the commission of murder with the intent that the crime be
committed, shall be punished for three, six, or nine years in
state prison. (Pen. Code, § 653f, subd. (b).)
7)States that a person who solicits another to commit or join in
the commission of specified crimes, including assault with a
deadly weapon or by means of force likely to produce great
bodily injury, shall be punished by as a misdemeanor, or as a
felony under Realignment. (Pen. Code, § 653f, subd. (a).)
8)Provides that any person who willfully threatens to commit a
crime which result in death or great bodily injury to another
person, with the specific intent that the statement, made
verbally, in writing, or by electronic communication, is to be
taken as a threat, even if there is no intent of actually
carrying it out, which on its face and under the circumstances
in which it is made, is so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened,
a gravity of purpose and an immediate process of execution of
the threat, and thereby causes that person reasonably to be in
sustained fear for his or her own safety, shall be punished by
imprisonment in the county jail not to exceed one year, or by
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imprisonment in the state prison. (Pen. Code, § 422.)
9)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, "Kites are
commonly used to pass messages and tell other inmates what to
do. Kites might also include population counts of members on a
specific yard in a certain prison, information about which
prisons are lax on security measures, details about rival
gangs, and orders to commit a crime.
"While kites are often confiscated, authorities cannot take
action until a gang member carries out the order. Prosecutors
can sometimes pursue a preemptive conspiracy charge, but they
cannot tie the conspiracy to the author. Most convictions
fall on the foot soldiers of gangs and not the leaders.
"Strengthening penalties for kites with dangerous messages will
help law enforcement identify gang leaders by disrupting the
lines of communication between inmates and the outside world."
2)CDCR Policies on Kites: CDCR has informed this Committee that
possession of kites can vary in range from serious threats to
murder or injure someone, to less harmful communications.
Thus, the way they are handled can vary from administrative to
serious rules violations. Likewise, the disposition may also
vary.
Serious rules violations according to the CCR Title 15 section
3323 A-F, are either felonies or misdemeanors. For serious
rules violations, if found guilty, the inmate may lose credits
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(up to 360 days for murder, for example), be subject to a SHU
term, to loss of privileges, etc.
Specifically, as to the kites at issue in this bill, those
containing communications to cause bodily harm or death to
another, CDCR policy includes the following:
If an inmate is found distributing or in possession of a kite
containing instructions to murder another, this inmate would
be charged with the following: A Division "A-1" offense
warranting credit forfeiture of 181-360 days; and murder,
attempted murder, and solicitation of murder. Solicitation of
murder shall be proven by the testimony of two witnesses, or
of one witness and corroborating circumstances. This is a
felony under the regulations (if found guilty) and would also
be referred to the district attorney for consideration of
prosecution.
If an inmate has or distributes a kite containing instructions
to perform battery with a weapon to cause serious injury, the
inmate would be charged with A Division "A-1" offense
warranting credit forfeiture of 181-360 days. The inmate
could also be charged with battery causing serious injury;
assault or battery with a deadly weapon or caustic substance;
solicitation to commit one of these offenses, as well as
behavior or activities that promotes, furthers, or assists a
security threat group (STG), or demonstrates a nexus to the
STG. Again, this would be a felony under the regulations (if
found guilty), and would also be referred to the district
attorney for consideration of prosecution.
If an inmate is found in possession of or distributing a kite
containing instructions to perform battery without serious
injury on a non-prisoner he or she would be charged with a
Division "B" Offense which would result in credit forfeiture
of 121-150 days. Other charges would include battery on a
peace officer not involving the use of a weapon; assault on a
peace officer by any means likely to cause great bodily
injury, battery on a non-prisoner, threatening to kill or
cause serious bodily injury to a public official, their
immediate family, their staff, or their staff's immediate
family, conspiracy to commit any one of these offenses, or
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solicitation to commit any one of these offenses. This
conduct is a felony (if found guilty) and would be referred to
the district attorney for consideration of prosecution.
Finally, if an inmate has or distributes a kite containing
instructions to perform battery without serious injury without
a weapon on a prisoner this would be considered a
division "D" offense under the regulations with potential
credit forfeiture of 61-90 days. The inmate could also face
charges of assault or battery on a prisoner with no serious
injury, conspiracy to commit any division "D" offense, acting
in a STG leadership role displaying behavior to organize and
control other offenders, and conduct that promotes, furthers,
or assists a STG or demonstrates a nexus to the STG.
Administratively, this conduct is a misdemeanor (if found
guilty). Most likely the conduct would not be referred to the
district attorney, depending on the local agreement.
As noted by the fact that most conduct contemplated by the
bill is referred to the local district attorney's office, the
conduct this bill wishes to prohibit is already illegal. The
inmate could be charged with attempt, conspiracy, or
solicitation to commit the underlying offense described in the
kite.
3)Recent Governor Veto Messages: Last year the Governor vetoed
a number of bills which would have re-characterized conduct
that was already criminal into a more specific crime. The
Governor's veto message said:
"Each of these bills creates a new crime - usually by finding a
novel way to characterize and criminalize conduct that is
already proscribed. This multiplication and particularization
of criminal behavior creates increasing complexity without
commensurate benefit.
"Over the last several decades, California's criminal code has
grown to more than 5,000 separate provisions, covering almost
every conceivable form of human misbehavior. During the same
period, our jail and prison populations have exploded.
"Before we keep going down this road, I think we should pause
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and reflect on how our system of criminal justice could be
made more human, more just and more cost-effective."
Similarly, this bill seeks to proscribe conduct that is already
illegal. Depending on the facts and circumstances of the
possession or distribution of the kite, a person or persons
could be charged with conspiracy or attempt to commit the
murder, battery, or assault, described in the bill.
Additionally, if the intended target of the crime somehow came
to possess the note, and reasonably sustained feared, a
criminal threat could be charged.
4)Argument in Support: According to the California State
Sheriff's Association, "Current law provides that the
distribution of a kite is a misdemeanor offense. However,
current law fails to acknowledge the versatile uses of kites,
especially among gang members. While it is important that all
kite communication be penalized there should be heightened
penalties for kites that incite violence. Kites are often
used by gangs to authorize a hit on an individual or to stage
a riot. This malicious communication is harmful to the
general population and should be thwarted with the appropriate
penalties."
5)Argument in Opposition: According to Legal Services for
Prisoners with Children, "The behavior this bill is trying to
correct is already covered under a number of different crimes:
conspiracy (California Penal Code § 182) and threat (Cal Pen
§ 422). Under the current conspiracy crime, a person can be
convicted if he conspires with at least one additional person
to commit any crime, and the punishment is the same as that
crime which he conspired to commit. The crime of threat
covers any person who willfully threatens to commit a crime
which will result in death or great bodily injury to another
person. In almost all cases imaginable, this would overlap
with the proposed new crime. California does not need new,
repetitive crimes."
6)Related Legislation: AB 1877 (Linder) makes the first
conviction of indecent exposure occurring in a prison or jail
punishable as a felony in state prison.
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REGISTERED SUPPORT / OPPOSITION:
Support
Association for Los Angeles Deputy Sheriffs
California Police Chiefs Association
California State Sheriffs' Association
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs' Association
Opposition
American Civil Liberties Union
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