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