BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 617 Hearing Date: January 12, 2016
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|Author: |Block |
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|Version: |January 5, 2016 |
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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 Civil Liberties Union; California Public
Defenders Association; Legal Services for Prisoners
with Children; Los Angeles County District Attorney's
Office
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
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Code § 19.)
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:
The prosecutor files a complaint charging the offense as
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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 states that a person charged with an infraction are
subject to the provisions of penal code section 19.6 and cannot
be punished by imprisonment, is not entitled to a trial by jury,
and not entitled to have counsel appointed, unless he or she is
arrested and not released on his or her written promise to
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appear, his or her own recognizance, or a deposit of bail, as
specified.
This bill states that a person charged with an infraction
pursuant to this section shall have the right to elect that the
charge be elevated to a misdemeanor and shall then have all of
the rights, privileges, punishments, consequences, fines,
penalites and disabilities afforded those charged with
misdemeanors. And, the person charged must be notified of this
right in writing or in person before a disposition on the charge
is accepted.
This bill states that an offense that is charged as an
infraction pursuant to this the section is
punishable by a fine not exceeding two hundred and fifty dollars
($250), except where a
lesser fine is expressly provided.
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:
A misdemeanor firearms violation;
A misdemeanor violation of the requirement to register
pursuant to Chapter 5.5 (commencing with section 290) of
Title 9 of Part 1;
A misdemeanor violation of a crime for which a person is
required to register pursuant to section 290.
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;
A misdemeanor sex offense;
An misdemeanor that is imposed by an initiative statute
that does not permit a lesser punishment; or,
A misdemeanor violation resulting in restitution being
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owed to a victim.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several 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.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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 must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
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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 reduce the number of people who enter the
criminal justice system while continuing to hold them
accountable for their offense. This measure will allow
county prosecutors to charge certain non-serious,
non-violent misdemeanors as infractions. 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
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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 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.
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, and misdemeanors requiring
restitution, cannot be charged as an infraction.
According to the San Diego District Attorney's Office, who is
the sponsor of this legislation:
---------------------------
<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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SB 617 allows a person charged with an infraction to
elevate the charge back up to a misdemeanor,
preserving their rights and privileges, such as the
right to counsel and the right to jury trial.
The currently existing non-custodial penalties and
fines associated with the minor offenses will mirror
Penal Code 19.8 (b) by a fine not exceeding $250. In
the case of indigent defendants, there is language to
allow for judicial discretion to lower fines or forego
imposition of the fines and require the defendant to
perform community service.
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
offense, 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.
The most recent amendments to the legislation provide that an
offense that is charged as an
infraction pursuant to this the section is punishable by a fine
not exceeding $250, except where a
lesser fine is expressly provided, and, additionally, require
that the person being charged with an
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infraction be notified in writing or in person that they have
the ability to have the matter proceed
as a misdemeanor.
This legislation, as amended, is more in line with the current
"wobblette" code sections, than the prior version. The primary
differences are that, under the existing wobblette section: (1)
the decision to reduce the misdemeanor to an infraction occurs
at arraignment, and (2) the court, with the consent of the
defendant, may determine that the offense is an infraction.
Members may wish to consider recommending an amendment making
the code sections consistent.
3. Argument in Opposition
The Los Angeles District Attorney's office states:
I regret to inform you that the preliminary position
of the Los Angeles District Attorney's Office on
Senate Bill 617, as proposed to be amended in
committee, is Oppose, unless Amended. We would be
happy to work with your office and the sponsor to
attempt to address our concerns regarding the bill.
SB 617 would provide that, subject to specified
exceptions, misdemeanors punished by a maximum term of
confinement not exceeding 6 months in jail may be
charged with a misdemeanor or infraction, in the
discretion of the prosecution. The bill further
provides that a misdemeanor shall not be reduced to an
infraction, except at the discretion of the
prosecution. Fines for crimes filed as or reduced to
infractions would be limited to a maximum of $250.
Our initial concern is that SB 617 may not operate as
intended. While the bill has express language stating
that a misdemeanor cannot be reduced to an infraction
without the consent of the prosecution, we believe
that this language could be construed as
unconstitutional under a separation of powers
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analysis. Once a charge is filed, the ability to
reduce or dispose of a filed charge becomes a judicial
function and cannot be conditioned upon the
prosecution's approval. Manduley v. Superior Court
(2002) 27 Cal. 4th 537,552; Esteybar v. Municipal
Court for Long Beach Municipal Court (1971) 5 Cal. 3d
119, 122; People v. Tenorio (1970) 3 Cal. 3d 89, 94.
Hence, we believe it is likely that an appellate court
would construe SB 617 to permit the reduction of a
misdemeanor to an infraction over the objection of the
prosecutor.
We also have a serious concern about the limitation of
the fine to $250. This could have the unintended
consequence of limiting the effectiveness of many
misdemeanors in the areas of environmental crimes,
consumer protection and OSHA (worker safety
protection). Most cases in these areas are against
corporations that cannot be punished by incarceration.
In the regulatory context, thousands of dollars in
fines are often necessary to compel compliance and
protect public health and safety. Moreover, some
misdemeanors in these cases are punished as felonies
if there is a prior misdemeanor conviction. This is a
strong disincentive for a corporate criminal.
In general, a misdemeanor conviction has a deterrent
effect upon corporations and its officers and
employees. An infraction and a $250 fine would have
little or no deterrent effect.
There are numerous six month misdemeanors in the
codes. Many are for conduct that is arguably as
serious as those punished by a longer term. An
alternate approach might be to identify misdemeanors
that are less serious but have resulted in a
significant expenditure of court time and to add those
crimes to the list of misdemeanors that can be filed
as or reduced to an infraction under current law.
We look forward to working with you regarding Senate
Bill 617.
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