BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 617 Hearing Date: May 12, 2015
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|Author: |Block |
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|Version: |April 29, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Crimes
HISTORY
Source: San Diego County District Attorney's Office
Prior Legislation:None Known
Support: Unknown
Opposition:California Public Defenders Association; Legal
Services for Prisoners with
Children
PURPOSE
The purpose of this legislation is to allow a crime punishable
as a misdemeanor to be charged as a misdemeanor or an infraction
at the discretion of the prosecuting attorney, as specified.
Existing law states that except in cases where a different
punishment is prescribed by any law of this state, every offense
declared to be a misdemeanor is punishable by imprisonment in
the county jail not exceeding six months, or by fine not
exceeding one thousand dollars ($1,000), or by both. (Penal
Code § 19.)
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Under existing law no person sentenced to confinement in a
county or city jail, or in a county or joint county penal farm,
road camp, work camp, or other county adult detention facility,
or committed to the sheriff for placement in any county adult
detention facility, on conviction of a misdemeanor, or as a
condition of probation upon conviction of either a felony or a
misdemeanor, or upon commitment for civil contempt, or upon
default in the payment of a fine upon conviction of either a
felony or a misdemeanor, or for any reason except upon
conviction of a crime that specifies a felony punishment
pursuant to subdivision (h) of Section 1170 or a conviction of
more than one offense when consecutive sentences have been
imposed, be committed for a period in excess of one year, as
specified. (Penal Code § 19.2.)
Under existing law when an act or omission is declared by a
statute to be a public offense and no penalty for the offense is
prescribed in any statute, the act or omission is punishable as
a misdemeanor. (Penal Code § 19.4.)
Existing law states that an infraction is not punishable by
imprisonment. A person charged with an infraction shall not be
entitled to a trial by jury. A person charged with an
infraction shall not be entitled to have the public defender or
other counsel appointed at public expense to represent him or
her unless he or she is arrested and not released on his or her
written promise to appear, his or her own recognizance, or a
deposit of bail. (Penal Code § 19.6.)
Existing law states that except as otherwise provided by law,
all provisions of law relating to misdemeanors shall apply to
infractions including, but not limited to, powers of peace
officers, jurisdiction of courts, periods for commencing action
and for bringing a case to trial and burden of proof. (Penal
Code § 19.7.)
Existing law states that specified offenses are an infraction
when:
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The prosecutor files a complaint charging the offense as
an infraction unless the defendant, at the time he or she
is arraigned, after being informed of his or her rights,
elects to have the case proceed as a misdemeanor; or
The court, with the consent of the defendant, determines
that the offense is an infraction in which event the case
shall proceed as if the defendant had been arraigned on an
infraction complaint.
(Penal Code §§ 17 and 19.8.)
This bill codifies legislative findings declaring that there are
low-level misdemeanor offenses that, at the discretion of the
prosecuting attorney, and based on the facts of the committed
offenses, the lack of prior delinquency or criminality of the
offender, and the lack of the offender's need for supervision,
can be effectively prosecuted as infractions. And, that
reducing these misdemeanors to infractions will not compromise
public safety, and that diverting low-level misdemeanor
offenders away from the criminal justice system and the stigma
associated with it will avoid costs associated with protracted
court involvement, jury trials, attorney representation,
confinement, and probation involvement.
This bill states that except as provided by express statutory
provisions providing an alternative punishment or procedure, a
crime punishable as a misdemeanor with a maximum term of
confinement not exceeding six months in jail may be charged as a
misdemeanor or an infraction at the discretion of the
prosecuting attorney.
This bill states that a crime charged as a misdemeanor shall not
be reduced to an infraction except at the discretion of the
prosecuting attorney pursuant to this section, or pursuant to
express statutory provisions providing an alternative punishment
or procedure. The prosecuting attorney may reduce the
misdemeanor charge to an infraction pursuant to this section at
any time before trial.
This bill limits the misdemeanors that can be reduced to
infraction by stating that the section added by this legislation
does not apply to the following:
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A misdemeanor firearms violation;
A misdemeanor sex offender registration violation;
A misdemeanor child endangerment or child abuse
violation;
A misdemeanor elder abuse violation;
A misdemeanor domestic violence violation;
A misdemeanor driving-under-the-influence violation; or
A misdemeanor sex offense.
This bill states that the person charged with an infraction that
was reduced from a misdemeanor pursuant to this section is not
to be entitled to a trial by jury, and is not entitled to have
the public defender or other counsel appointed at public expense
to represent him or her unless he or she is arrested and not
released on his or her written promise to appear, his or her own
recognizance, or a deposit of bail.
This bill states that statutory provisions of a misdemeanor that
is charged as an infraction pursuant to this section, including,
but not limited to, fines and penalties, apply to the infraction
and shall be imposed as if the offense had been charged as a
misdemeanor.
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.
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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
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:
SB 617 will give county prosecutors the discretion to
charge certain non-serious, non-violent misdemeanors
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as infractions, while keeping intact all existing
non-custodial penalties and fines associated with the
minor offense. It excludes serious misdemeanors
including those involving sex crimes, child abuse,
elder abuse, domestic violence, driving under the
influence, and any offense involving a firearm.
California recently made major reforms to its criminal
justice system by implementing AB 109, or realignment,
in response to the prison overcrowding crisis. With
the emphasis on keeping offenders close to home and
highlighting re-entry services, realignment has
increased the jail population and costs at the local
level. SB 617 provides a tool to county district
attorneys to weed out folks that do not belong in the
criminal justice system.
This measure will also generate major savings to our
court system which has seen major cuts to its
operating budget due to the recent budget crisis.
According to the Criminal Justice Statistics Center,
there were over 750,000 misdemeanor arrests in
2013<1>. Averaging about $380 per case to administer,
courts are spending roughly $500 million per year on
misdemeanors alone<2>. In contrast, the average cost
to administer an infraction is only about $35 per
case<3>; significantly lower than a misdemeanor. This
measure will leave intact all non-custodial penalties
and fees associated with the offense but reduce costs
to the courts, by reducing the number of jury trials
and cutting back on court administrative services. It
also cuts down on the number of people incarcerated
and on probation.
SB 617 is an important measure whose time has come.
It will continue to hold offenders of minor offenses
accountable and reserve our criminal justice system
for those that need to be there.
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<1> Criminal Justice Statistics Center, Office of the California
Attorney General Kamala Harris
<2> Legislative Analyst Office, California's Criminal Justice
System: A Primer, 2013. Page 36
<3> Legislative Analyst Office, California's Criminal Justice
System: A Primer, 2013. Page 36
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2. Effect of Legislation
This legislation would allow a crime punishable as a
misdemeanor, with a maximum term of confinement not exceeding
six months in jail, to be charged as a misdemeanor or an
infraction at the discretion of the prosecuting attorney. This
legislation, however, does limit the misdemeanors that can be
reduced. Specifically, misdemeanors involving a firearms
violation, sex offender registration violation, child
endangerment or child abuse violation, elder abuse violation,
domestic violence violation, driving under the influence
violation, or a sex offense, cannot be charged as an infraction.
According to the San Diego District Attorney's Office, who is
the sponsor of this legislation:
SB 617 will allow the prosecutor to exercise his or
her discretion at charging, the earliest phase of the
prosecution, or at any time before trial, as soon as
information regarding the facts of the committed
offence, the lack of prior delinquency or criminality
of the offender, and the lack of the offender's need
for supervision become apparent and warrant
prosecution of an infraction.
SB 617 will result in steering minor offenders away
from the criminal justice system, and from the stigma
associated with it. It will allow offenders to be
held accountable while avoiding costs associated with
protracted court involvement, jury trials, attorney
representation, confinement, and probation
involvement, all of which are inapplicable to
infractions.
This legislation states that statutory provisions of a
misdemeanor that are charged as an infraction pursuant to this
section apply to the infraction and shall be imposed as if the
offense had been charged as a misdemeanor. This legislation
applies misdemeanor fines and penalties to an infraction charge
pursuant to this legislation, but does not set a cap on the
amount of fines that can be assessed. The standard fine for a
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misdemeanor is $1,000, but penalty assessments bring the fine up
to $4,000. Given that a person is not entitled to an attorney
in a case involving an infraction, exposing a person to more
than $4,000 in fines and penalty assessments seems extreme.
Members may wish to consider an amendment to include a cap on
the amount of fines that can be charged for an infraction under
this section.
3. Argument in Opposition
According to California Public Defenders Association:
This bill would, subject to exceptions, allow
misdemeanors punishable by a maximum term of
confinement not exceeding 6 months in jail to be
charged as a misdemeanor or an infraction, in the
discretion of the prosecuting attorney, as specified.
The bill would, for a misdemeanor offense that is
charged under these provisions, make all statutory
provisions of a misdemeanor offense, including fines
or penalties, applicable to the infraction as if the
offense were charged as a misdemeanor. The bill would
prohibit a misdemeanor charged as an infraction
pursuant to these provisions from being punished by
imprisonment.
This bill would apply Penal Code section 19.6 to those
cases reduced through prosecutorial discretion. (Penal
Code section 19.5(d) states: "A person charged with an
infraction that was reduced from a misdemeanor
pursuant to this section is subject to Section 19.6."
So, what does Penal Code section 19.6 state: (In
pertinent part, "?A person charged with an infraction
shall not be entitled to a trial by jury. A person
charged with an infraction shall not be entitled to
have the public defender or other counsel appointed at
public expense to represent him or her unless he or
she is arrested and not released on his or her written
promise to appear, his or her own recognizance, or a
deposit of bail."
Thus, in essence, the prosecution gets to decide
whether an indigent defendant gets a court appointed
attorney, even though that defendant may face
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misdemeanor penalties, with the exception of
imprisonment, and other disabilities, also creating
the situation where an indigent defendant would face a
prosecution lawyer, without the assistance of counsel.
Under existing law, a misdemeanor is punishable by a
fine up to $1,000, whereas an infraction is only
punishable by a fine up to $250. (Penal Code sections
19 and 19.8) CPDA believes that a maximum fine of
$1,000 for an infraction is excessive for a situation
where one is denied the right to counsel. If offenses
are to be made infractions, then the existing maximum
fine for an infraction should be the maximum
punishment.
Infractions may also have peripheral consequences.
Penal Code section 19.8 already allows for certain
misdemeanors to be charged as infractions, however
Penal Code section 19.8 has a specific protection;
section 19.8(c) provides "Except for the violations
enumerated in subdivision (d) of Section 13202.5 of
the Vehicle Code, and Section 14601.1 of the Vehicle
Code based upon failure to appear, a conviction for an
offense made an infraction under subdivision (d) of
Section 17 is not grounds for the suspension,
revocation, or denial of a license, or for the
revocation of probation or parole of the person
convicted." This bill, as written, does not provide
these protections, thus one convicted of an infraction
pursuant to this legislation could face consequences
that are not present in other infraction convictions.
In addition, for certain offenses that could become
infractions under this legislation, there may be other
consequences, such as adverse immigration
consequences. These possible consequences need to be
explained to a defendant, in the absence of counsel
would not receive the appropriate advisement.
Thus, CPDA opposes this legislation unless 1) the
right to counsel is preserved for defendants where
infraction charges are filed or where there is
reduction of a misdemeanor to an infraction, 2)
informed consent from the defendant, which requires
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right to counsel, for any reduction to take place, and
3) only infraction penalties should apply, meaning a
maximum fine of $250 and no peripheral consequences,
such as loss of professional license.
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