BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 679 Hearing Date: April 21, 2015
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|Author: |Bates |
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|Version: |February 27, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|AA |
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Subject: Mandatory Supervision: Warrantless Searches and
Seizures
HISTORY
Source: San Diego District Attorney
Prior Legislation:None
Support: California District Attorneys Association; County of
San Diego; Crime Victims United of California;
California State Sheriffs' Association; California
Probation, Parole and Correctional Association
Opposition:American Civil Liberties Union of California;
California Attorneys for Criminal Justice
PURPOSE
The purpose of this bill is to statutorily require that during
the period of mandatory supervision - which is the community
supervision portion of a "split sentence" for persons who have
been convicted of a jail felony -- the defendant, and his or her
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residence and possessions, would be subject to search and
seizure at any time of the day or night, with or without a
warrant and with or without cause, by an agent of the
supervising county agency or by a peace officer.
Current law generally provides certain persons who are subject
to community supervision as a result of a criminal conviction
also are subject to warrantless search and seizure by a peace
officer at any time of the night or day, and with or without
cause. The following situations expressly authorize warrantless
searches and seizures in statute:
The alternative custody program for female prison
inmates (Penal Code § 1170.05);
Parolees (Penal Code § 3067); and
Persons coming out of prison who are subject to
postrelease community supervision. (Id.)
Current law authorizes courts to impose what is known as a
"split sentence" on persons convicted of a so-called "jail
felony," for which any custodial time will be served locally
(not in state prison), and where the court imposes a sentence
comprised of both time in custody and time subject to what is
termed "mandatory supervision" in the community by probation.
(Penal Code § 1170(h).)
Current law requires that, unless the court finds that, in the
interests of justice, it is not appropriate in a particular
case, the court shall impose a period of mandatory supervision
for a person sentenced for a jail felony, as specified, (Penal
Code § 1170(h)(5)(A).
Current law provides that during "the period of mandatory
supervision, the defendant shall be supervised by the county
probation officer in accordance with the terms, conditions, and
procedures generally applicable to persons placed on probation,
for the remaining unserved portion of the sentence imposed by
the court. The period of supervision shall be mandatory, and
may not be earlier terminated except by court order . . . .
During the period when the defendant is under such that
supervision, unless in actual custody related to the sentence
imposed by the court, the defendant shall be entitled to only
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actual time credit against the term of imprisonment imposed by
the court. Any time period which is suspended because a person
has absconded shall not be credited toward the period of
supervision." (Penal Code § 1170(h)(5)(B).)
Current Rules of Court enumerate several factors courts may
consider in exercising discretion to select the appropriate
period and conditions of mandatory supervision, including
"Public safety, including protection of any victims and
witnesses," and the "defendant's specific needs and risk factors
identified by a validated risk/needs assessment, if available; .
. . "(Cal. Rules of Ct., 4.415(c).)
This bill would provide that "(d)uring the period of mandatory
supervision, the defendant, and his or her residence and
possessions, are subject to search and seizure at any time of
the day or night, with or without a warrant and with or without
cause, by an agent of the supervising county agency or by a
peace officer."
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.
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
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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.Stated Need for This Bill
The author states:
All offenders released on PRCS are subject to search
and seizure waivers. Parolees are also subject to the
same waiver. However, the same is not true for
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offenders released onto Mandatory Supervision (MS).
These are offenders who are sentenced pursuant to
Penal Code section 1170(h) to local prison and serve
part of their prison term in the community and
receiving credit off of that prison term while in the
community, unlike a parolee or PRCS offender who are
released onto supervision after completing their
prison term.
A Penal Code 1170(h) sentence allows judges to impose
a straight sentence of jail incarceration, or a split
sentence with a period of incarceration followed by a
mandatory term of supervision for offenders convicted
of a wide variety of criminal offenses, including auto
theft, second degree burglary and selling controlled
substances. Split sentences, followed by a term of MS,
give probation officers the opportunity to use
evidence-based practices to work with offenders,
connect them to services and treatment, and reduce
their likelihood of recidivism.
The level of scrutiny for an offender still serving
their prison term should be higher and more
restrictive. Moreover, if a defendant on MS moves from
county to county, there is no way for the law
enforcement in the new county to consistently know
whether the offender is subject to search and seizure
waiver. Additionally, on January 1, 2015, the
presumptive splits went into effect and therefore
there will be a greater number of defendants serving
MS sentences in the community. Thus, the need is
greater to ensure there is consistency throughout the
state.
This bill ensures continuity of the law for all
offenders released into the community to serve out the
rest of their sentences. SB 679 would make a
defendant subject to MS subject to search and seizure
by a peace officer at any time of the day or night,
with or without cause and with or without a warrant.
SB 679 would also require the defendant, and his or
her residence and possessions, are subject to search
and seizure at any time of the day or night, with or
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without a warrant and with or without cause, by an
agent of the supervising county agency or by a peace
officer.
2.What This Bill Would Do
This bill would require statutorily that during the period of
"mandatory supervision," in every case the defendant, and his or
her residence and possessions, would be subject to search and
seizure at any time of the day or night, with or without a
warrant and with or without cause, by an agent of the
supervising county agency or by a peace officer. As discussed
in more detail below, mandatory supervision is a feature of what
is commonly known as a "split sentence," created in 2011 by the
public safety realignment as a sentencing variation which
structures a felony sentence into two elements, incarceration
and community supervision. This bill would remove the
discretion of a sentencing judge to impose this as a term and
condition of mandatory supervision; instead, it would be
required in every case as a statutory requirement.
As discussed in detail below, there have been a number of court
cases in varying contexts addressing the nature of mandatory
supervision. As members consider these issues, they may wish to
consider whether a search requirement for these convicted felons
should be imposed according to statute, or whether this
requirement is adequately addressed by the sentencing court as
part of its sentencing discretion.
SHOULD A WARRANTLESS SEARCH REQUIREMENT ON PERSONS SUBJECT TO
MANDATORY SUPERVISION BE IMPOSED AS A MATTER OF STATUTORY LAW?
SHOULD THIS REQUIREMENT CONTINUE TO BE LEFT TO THE DISCRETION OF
THE SENTENCING COURT?
3.Case Law - Mandatory Supervision: More Like Probation, or
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Parole?<1>
"Mandatory Supervision" was created as part of the public safety
realignment of 2011, as initially enacted by AB 109 of that
year. It is the community supervision element of a sentence for
a jail felony conviction in a so-called "split sentence," where
the court imposes a sentence structured with both custodial and
community supervision features. The period of supervision is
mandatory. (Penal Code § 1170(h)(5)(B).) Offenders are
supervised by the county probation officer in accordance with
the terms, conditions, and procedures generally applicable to
persons placed on probation, for the remaining unserved portion
of the sentence imposed by the court. (Id.)
Mandatory supervision is similar to probation in that in both
cases supervision is performed by probation. However, unlike
probation, mandatory supervision is not agreed to by a defendant
in lieu of a custody sentence; it is expressly mandatory. As
explained in an appellate decision last year:
As an initial matter, we note that although supervised
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<1> The unique nature of mandatory supervision in California's
sentencing scheme is not limited to issues concerning terms and
conditions of supervision. Last year, several plaintiffs filed
a lawsuit in Alameda county concerning the right of persons on
mandatory supervision (as well as postrelease community
supervision) to vote. The trial court noted, "(t)his petition
squarely presents the question of whether in enacting the
Realignment Act the Legislature intended Mandatory Supervision
and PRCS to be "parole" for purposes of voting rights under the
(law)," and held that "as a matter of law that California
Constitution Article II, section 2 and Elections Code 2101,
require the State of California to provide all otherwise
eligible persons on Mandatory Supervision . . . and Post-Release
Community Supervision ("PRCS") . . . the same right to register
to vote and to vote as all other otherwise eligible persons.
Neither Mandatory Supervision nor PRCS is "parole" under the
Penal Code, which compels this court to hold that neither
Mandatory Supervision nor PRCS is "parole" under Elections Code
2101." (Michael Scott et al. v. Debra Bowen, Superior Court of
Alameda County, Case No. RG14-712570). This case is now on
appeal.
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release is to be monitored by county probation
officers "in accordance with the terms, conditions,
and procedures generally applicable to persons placed
on probation". . . "this does not mean placing a
defendant on mandatory supervision is the equivalent
of granting probation or giving a conditional
sentence. Indeed, section 1170, subdivision (h), comes
into play only after probation has been denied." . . .
Thus, the Legislature has decided a county jail
commitment followed by mandatory supervision imposed
under section 1170, subdivision (h), is akin to a
state prison commitment; it is not a grant of
probation or a conditional sentence." Therefore , . .
. "mandatory supervision is more similar to parole
than probation." (People v. Martinez (2014) 226 Cal.
App. 4th 759, 762-763 (citations omitted) (emphasis
added).)
The Martinez court concluded that its analysis of the validity
of the terms of supervised release under mandatory supervision
would be guided by standards analogous to the conditions of
parole. The court explained:
"In California, parolee status carries distinct
disadvantages when compared to the situation of the
law-abiding citizen. Even when released from actual
confinement, a parolee is still constructively a
prisoner subject to correctional authorities. . . .
The United States Supreme Court has characterized
parole as 'an established variation on imprisonment'
and a parolee as possessing 'not ? the absolute
liberty to which every citizen is entitled, but only ?
the conditional liberty properly dependent on
observance of special parole restrictions.' . . . Our
own Supreme Court holds a like opinion: 'Although a
parolee is no longer confined in prison his custody
status is one which requires ? restrictions which may
not be imposed on members of the public generally.'
The fundamental goals of parole are "'to help
individuals reintegrate into society as constructive
individuals' . . . '"to end criminal careers through
the rehabilitation of those convicted of crime"' . . .
and to [help them] become self-supporting." In
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furtherance of these goals, "[t]he state may impose
any condition reasonably related to parole
supervision." . . . These conditions "must be
reasonably related to the compelling state interest of
fostering a law-abiding lifestyle in the parolee."
The validity and reasonableness of parole conditions
is analyzed under the same standard as that developed
for probation conditions. "A condition of [parole]
will not be held invalid unless it '(1) has no
relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in
itself criminal, and (3) requires or forbids conduct
which is not reasonably related to future criminality
? .' . . . Conversely, a condition of [parole] which
requires or forbids conduct which is not itself
criminal is valid if that conduct is reasonably
related to the crime of which the defendant was
convicted or to future criminality."
In general, the courts are given broad discretion in
fashioning terms of supervised release, in order to
foster the reformation and rehabilitation of the
offender, while protecting public safety. . . .
(People v. Martinez, supra at 763.)
4.Authority and Standards for Parole Searches
Following the Martinez court's reasoning that mandatory
supervision should be analyzed according to standards
applicable to parole, California statutory law now requires
that inmates eligible for parole be notified that they are
subject to terms and conditions of parole upon release.<2>
(Penal Code § 3067.) The statute specifies the content of
the notice. With respect to searches and seizures, the
statute states the inmate must receive the following:
An advisement that he or she is subject to search or
seizure by a probation or parole officer or other
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<2> There is no parallel statutory authority for the
warrantless search of probationers, although that can be a
condition of probation imposed by the court and agreed to by the
defendant.
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peace officer at any time of the day or night, with or
without a search warrant or with or without cause.<3>
(Id., subd.(a) (3).)
This bill would appear to statutorily authorize a broader
scope of search or seizure of persons on mandatory
supervision:
During the period of mandatory supervision, the
defendant, and his or her residence and possessions,
are subject to search and seizure at any time of the
day or night, with or without a warrant and with or
without cause, by an agent of the supervising county
agency or by a peace officer.
However, regulations currently applicable to parolees reach
both a parolee's residence and property under a parolee's
control:
Search. You and your residence and any property under
your control may be searched without a warrant at any
time by any agent of the Department of Corrections or
any law enforcement officer. (15 CCR 2511 (4).)
Case law appears to uphold the warrantless searches of
parolee residences if law enforcement officers have
probable cause to believe that the parolee is a resident of
the house to be searched. (See U.S. v. Grandberry, 730
F.3d 968 (9th Cir. 2013.) As drafted, it does not appear
that the bill would abrogate this requirement.
The current parolee statute also includes the following,
which is not included in this bill:
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<3> As discussed later in this analysis, this section also
states that, "It is not the intent of the Legislature to
authorize law enforcement officers to conduct searches for the
sole purpose of harassment." (Penal Code § 3067(d).) The
motive of officers in conducting suspicionless search of
parolee's residence is relevant to determining whether a
suspicionless search is arbitrary, capricious, or harassing. (
Smith v. City of Oakland, 538 F. Supp. 2d 1217 (N.D. Cal.
2008).)
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It is not the intent of the Legislature to authorize
law enforcement officers to conduct searches for the
sole purpose of harassment." (Penal Code § 3067(d).)
The motive of officers in conducting suspicionless search
of parolee's residence is relevant to determining whether a
suspicionless search is arbitrary, capricious, or
harassing. (Smith v. City of Oakland, 538 F. Supp. 2d 1217
(N.D. Cal. 2008).)
In addition, while courts have upheld "suspicionless"
searches, such searches cannot be for the purpose of
harassment. As explained by the Ninth Circuit:
(P)ivotal to the Court's permitting suspicionless
searches of parolees was the safeguard that such
searches may not be arbitrary, capricious, or
harassing -- e.g., motivated by the "purpose of
harassment." Accordingly, while the existence of
objective probable cause or individualized reasonable
suspicion may obviate inquiry into subjective motives
. . ., where there is no such objective protection,
parolees subject to suspicionless searches are
entitled to at least protection against searches
initiated for arbitrary, capricious, or harassing
reasons under Samson. Smith v. City of Oakland, 538
F. Supp. 2d 1217 (9th Cir. 2008); (Aff'd., Smith v.
City of Oakland, 2010 U.S. App. LEXIS 10132 (9th Cir.
Cal., May 18, 2010) (some citations omitted) (emphasis
added).)
Members may wish to consider whether this bill should be
amended to fully mirror the current law applicable to
parolees, by adding the following sentence to its
provisions:
It is not the intent of the Legislature to authorize
law enforcement officers to conduct searches that are
arbitrary, capricious, or for the sole purpose of
harassment.
SHOULD THIS AMENDMENT BE MADE?
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5.Opposition
The American Civil Liberties Union of California, which
opposes this bill, argues in part that this "bill
unnecessarily removes from the trial courts the discretion
to determine the appropriateness of a condition of
supervised release.
Under realignment, a trial court that sentences an
individual to county jail may "suspend execution of a
concluding part" of that sentence and release the
person for a period of "mandatory supervision." . . .
With mandatory supervision as with probation, the court
retains jurisdiction over the case. . . . The trial
court sets all the conditions of mandatory supervision
and individuals are then "supervised by the county
probation officer in accordance with the terms,
conditions, and procedures generally applicable to
persons placed on probation.". . .
"In general, the courts are given broad discretion in
fashioning terms of supervised release, in order to
foster the reformation and rehabilitation of the
offender, while protecting public safety." (People v.
Martinez (2014) 226 Cal. App. 4th 759, 764.) This is
distinct from parole or release following prison on
post-conviction community supervision. In those
circumstances, the conditions of release are set by the
Department of Corrections and Rehabilitation. Indeed,
the Third District of the Courts of Appeal recently
stated,
While we have said that mandatory supervision
is more like parole than probation it is
similar to probation in the sense that the
terms and conditions of the defendant's release
are ordered by the court.
(People v. Munoz (2015) 183 Cal.Rptr.3d 484, 487
[citation omitted]; see also People v. Fandinola (2013)
221 Cal.App.4th 1415, 1423 ["the Legislature understood
mandatory supervision is neither probation nor
parole"].)
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In the context of probation, the California Supreme
Court has stated, "[t]he trial court's discretion,
although broad, nevertheless is not without limits."
(People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) The
court explained further,
probation conditions which regulate conduct not
itself criminal [must] be reasonably related to
the crime of which the defendant was convicted
or to future criminality. As with any exercise
of discretion, the sentencing court violates
this standard when its determination is
arbitrary or capricious or exceeds the bounds
of reason, all of the circumstances being
considered. . . .
Currently, courts determine all conditions for
mandatory supervision and routinely impose a "search
clause" that requires the supervised person to submit
to law enforcement searches. Trial courts now have the
discretion to determine if a search clause is
appropriate and if so, to determine the exact scope of
the search clause. For example, a trial court may
decide that it is not reasonable to require someone to
subject his or her entire residence to a search without
a warrant if the home is shared with other people. In
such cases, the court will fashion a more limited
search clause, requiring, for example, that the
supervised person submit to a search of his or her
person, property or vehicle without a warrant, but not
his or her residence.
Under SB 679, however, the courts would lose this
ability. Conditions imposed during mandatory
supervision should be left to the sound discretion of
the court, to ensure that the conditions reasonably
related to the offense committed and are not "arbitrary
or capricious or exceeds the bounds of reason." (Ibid.)
-- END -
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