BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 666 Hearing Date:April 7, 2015
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|Author: |Stone |
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|Version: |February 27, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Felons: Coming Upon Prison Property
HISTORY
Source: Author
Prior Legislation:SB 1412 (Nielsen), Ch. 759, Stats. 2014
Support: Unknown
Opposition:California Public Defenders Association
PURPOSE
The purpose of this bill is to extend the existing statute
requiring former California prison inmates to obtain permission
before entering the grounds of a prison or jail to persons who
have served term in a federal prison, a prison in another state
or a felony jail term as specified.
Existing law includes a series of statutes describing
misdemeanors and felonies committed by non-inmates that involve
access to correctional facilities, contact with inmates and
bringing contraband into a facility or camp. (Penal Code §§
4570-4578.)
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Existing law specifically provides that a person who has been
previously convicted of a felony and confined in a prison is
guilty of a felony if he or she "comes onto the grounds of" a
prison, prison camp, prison forestry camp, jail or county road
camp without the consent of the warden "or other officer in
charge." The sentence for this felony is a prison term of 16
months, two years or three years and a fine of up to $10,000.
(Penal Code § 4571.)
This bill extends this prohibition to any person who has
previously served a prison term in a federal prison, a prison of
any other state, or a county jail pursuant to Penal Code Section
1170, subdivision (h).
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
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1.State Need for This Bill
According to the author:
California law clearly states that a person that has been
previously convicted of a Felony and has been confined in a
prison in the State of California cannot enter the grounds
of any prison, prison camp or jail in the State.
However, there exists a loophole in the current law. The
statute does not exclude a person who has been previously
convicted of a Felony and has been confined in a County
Jail. The statute is also silent about those who have been
convicted of a Felony in a different state or if they have
been confined in a Federal Prison upon conviction of a
Felony.
SB 666 closes the loophole in current law by stating that,
in addition to current law, no one that has been previously
convicted of a Felony and served time in a County Jail, a
prison in another state, or in a Federal prison, will be
allowed on the grounds of a prison, prison camp, or jail in
the state of California.
2.Recent Appellate Decision Requires Full Disclosure by Person
Seeking Entry to Custodial Facility
People v. Gjersolvd (2014) 230 Cal.App.4th 746 interpreted and
applied Penal Code Section 4571, the statute amended by this
bill. As noted in the "Purpose" section above, the statute
requires a convicted felon who has served a prison term to
obtain permission to come "upon the grounds of [a prison or
jail] or lands adjacent thereto?" Violation of Section 4571 is
a felony. The defendant in Gjersolvd was convicted of entering
the Riverside County Jail without informing institution
officials that he had been convicted of a felony and served a
prison term. Gjersolvd falsely told a deputy who screened
visitors that he was a private investigator and showed the
deputy his revoked private investigator's license.
The court - citing a 1980 opinion of the Attorney General<1> -
found that a former prisoner must obtain "informed consent" from
prison or jail authorities. To obtain informed consent, the
former prisoner must clearly reveal his or her record. Informed
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<1> (63 Ops. Cal.Atty.Gen. 80-112)
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consent allows "the warden or other officer in charge ? the
opportunity to exercise wide discretion whether ? an ex-convict
may receive consent to enter upon jail grounds." (Id., at pp.
750-751.)
The court in Gjersolvd observed "a notice is posted [at
the jail] that states that persons convicted of a felony are not
authorized to visit without approval." (Id., at p. 749.) Many
other sections in the chapter that restrict access to prisoners
or prohibit bringing contraband onto prison or jail grounds
require the institution to post a notice of the prohibition or
restriction. Section 4571 does not require such notice.
Committee members may wish to consider whether this bill should
be amended to include a notice requirement, especially in light
of the expansion of the law in this bill.
3.What Constitutes being "Confined in a County Jail Pursuant to
Penal Subdivision (h) of Penal Code Section 1170"?
Under existing law, it is clear who is covered by the statute
amended by this bill - those persons convicted of a felony,
sentenced to prison and actually confined in prison pursuant to
an executed prison term. No other persons are confined in
prison. Where a defendant is convicted of a felony and placed
on probation, he or she would not be confined in a prison unless
probation is revoked and a prison term is imposed and executed,
although the terms of probation often include a period of jail
confinement. A person who succeeds on felony probation would
not be subject to the law amended by this bill, regardless of
whether the person was confined in jail as a condition of
probation.
However, it is not entirely clear to whom the phrase "confined
in a county jail ? pursuant to subdivision (h) of Section 1170"
applies. The phrase would likely be interpreted to refer to a
convicted defendant who served an "executed" felony sentence in
jail after denial or revocation of probation. However "pursuant
to subdivision (h) of Section 1170" could be interpreted to mean
any felony crime for which the sentence is to be served in jail.
Such a crime is commonly or colloquially described as "an 1170
(h) crime." Further, a person is confined in jail if
incarceration is a condition of felony probation.
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There are three classes of persons convicted of a felony and
confined in a county jail:
1) Those defendants who were convicted of an 1170
(h) crime who served an executed sentence in the
county jail. An executed sentence is one that is
imposed and actually served.
2) Those defendants who were convicted of an 1170
(h) crime who served an executed "split sentence."
A split sentence is an executed jail sentence for
which the final portion of the sentence is served
under "mandatory supervision" in the community. The
supervision provided under mandatory supervision is
equivalent to probation supervision.
3) Persons who were convicted of an 1170 (h)
felony, granted probation and
ordered to serve a term in a county jail as a
condition of probation. As with prison sentences,
in granting probation, the court can either impose
the sentence, but stay execution of the sentence if
while the defendant remains on probation, or stay
imposition of sentence per se.
Defendants/inmates in classes 1) and 2) are equivalent to
those who actually served a prison term under existing law.
Defendants in class 3) are not equivalent to those covered
by current law.
Members may wish to consider whether this bill should be
clarified to provide that it applies to defendants who
served an executed jail sentence pursuant to Section 1170,
subdivision (h); for example:
For purposes of this section, "confined in a
county jail pursuant to subdivision (h) of Section
1170" means that a person served an executed
felony jail sentence pursuant to paragraph (1) or
(2) of subdivision (h) of Section 1170, including
a split sentence imposed pursuant to paragraph
(5).
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