BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 722 Hearing Date: April 28, 2015
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|Author: |Bates |
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|Version: |February 27, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|AA |
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Subject: Sex Offenders: GPS Monitoring: Penalties for Removal
HISTORY
Source: Author
Prior Legislation:SB 57 (Lieu) - Chapter 776, Statutes of 2013
Support: California District Attorneys Association; Crime
Victims United of California; Peace Officers Research
Association of California; Orange County District
Attorney's Office; Orange County Board of Supervisors;
Orange County Sheriff's Department; California State
Sheriffs' Association
Opposition:American Civil Liberties Union; California Public
Defenders Association; Legal Services for Prisoners
with Children; California Attorneys for Criminal
Justice; Public Interest Advocacy
PURPOSE
The purpose of this bill is to enact a new felony, punishable by
imprisonment in the state prison for 16 months, or two or three
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years, for the willful removal or disabling of a GPS device "if
the device was affixed as a result of a criminal sentence or
juvenile court disposition for specified forcible sex crimes,"
as specified.
Current law generally authorizes the use of electronic
monitoring or global positioning system devices ("GPS") in the
criminal justice system, as specified. The following statutes
authorize the use of these devices, reflecting a variety of
criminal justice circumstances where they can be employed:
Alternative custody programs for female inmates in the
Department of Corrections and Rehabilitation ("CDCR")
(Penal Code § 1170.05(e));
Probation for certain sex offenders who have been
assessed as high risk, as specified (Penal Code § 1202.8);
Probation for other offenders, as specified (Penal Code
§§ 1210.12; See also 1210.7 et seq.);
Home detention programs for county inmates, as specified
(Penal Code §§ 1203.016, 1203.017);
County inmates being held in lieu of bail, as specified
(Penal Code § 1203.018);
Persons subject to an order protecting a victim or
witness of violent crime from all contact, as specified
(Penal Code § 136.2);
Persons on parole, as specified (Penal Code §§ 3004,
3010);
Persons on post release community supervision (Penal
Code §§ 3450, 3454); and
Prisoners subject to medical parole supervision (Penal
Code § 3550).
Current law generally provides that removing or otherwise
defeating the operation of a GPS device is a violation of parole
or probation, or subject to return to custody from an
alternative custody program. (Id.)
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Current law provides that parolees who are registered sex
offenders and are required to have a GPS device as a condition
of parole shall be subject to parole revocation and incarcerated
in a county jail for 180 days if they remove or otherwise
disable the device, as specified. (Penal Code § 3010.10.)
Existing law includes an enhanced sentencing structure that
applies to crimes of rape, oral copulation, sodomy, and sexual
penetration committed by force, duress or threats; lewd conduct
with a child under the age of 14 and continuous sexual abuse of
a child<1> which, depending on the number and kinds of
aggravating factors attendant to the crime, require a term of 15
or 25-years-to-life, or life without parole for specified crimes
against a minor. (Pen. Code § 667.61.)
This bill would enact a new felony, providing that a "person who
willfully removes or disables an electronic, global positioning
system, or other monitoring device affixed to his or her person
or the person of another, if the device was affixed as a result
of a criminal sentence or juvenile court disposition for" any of
the sex crimes described above is guilty of a felony, punishable
by imprisonment in the state prison for 16 months, or two or
three years."
This bill would provide that its provisions would "not apply to
the removal or disabling of a monitoring device by a physician,
emergency medical services technician, or by any other emergency
response or medical personnel when doing so is necessary during
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<1> Specifically, Penal Code section 667.61(c) enumerates the
following crimes: (1) Rape, in violation of paragraph (2) or
(6) of subdivision (a) of Section 261. (2) Spousal rape, in
violation of paragraph (1) or (4) of subdivision (a) of Section
262. (3) Rape, spousal rape, or sexual penetration, in concert,
in violation of Section 264.1. (4) Lewd or lascivious act, in
violation of subdivision (b) of Section 288. (5) Sexual
penetration, in violation of subdivision (a) of Section 289. (6)
Sodomy, in violation of paragraph (2) or (3) of subdivision (c),
or subdivision (d), of Section 286.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(8) Lewd or lascivious act, in violation of subdivision (a) of
Section 288. (9) Continuous sexual abuse of a child, in
violation of Section 288.5.
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the course of medical treatment of the person subject to the
device. This section does not apply if the removal or disabling
of the device is authorized or required by a court, by law
enforcement, or by any other entity that is responsible for
placing the device upon the person or that has the authority and
responsibility to monitor the device."
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
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
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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:
A recent serial-killing spree in Orange County, that
left four (and possibly five) women dead, has elevated
the need for tighter penalties when a GPS device is
removed. Existing law does nothing to deter sex
offenders from cutting off or altering their ankle
bracelets and in consequence does little to prevent
future crimes from happening again.
In 2012, two men on release from state prison for
prior convictions of child molestation cut off their
state-mandated GPS ankle bracelets and left California
on a bus. By the time police caught up to the pair,
the penalty they ended up receiving for removing the
devices was minor and they served only a few short
months' time. One was sentenced to ten months in
federal prison and the other received just eight
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months. Again, upon their release, they were required
to wear ankle bracelets to track their whereabouts
throughout Orange County.
In early 2014, four women went missing in Orange
County. Within five months, all four of the women's
bodies had been found dead. Shortly after, the two
men mentioned above were arrested for being linked to
the murders (and later convicted). During the
investigation (prior to arresting either man), one of
the men was told he could remove his bracelet after
having served his full term on probation. During the
two week period to which he had no tracking device,
the killing spree continued and a 27 year old mother
was found murdered. When it was discovered 11 days
later that this man was deemed homeless, a federal
judge ordered he be outfitted with a new GPS device to
continue monitoring his whereabouts.
After all these deaths late last year former State
Senate Pro Tem Darrell Steinberg ordered the Inspector
General (IG) to generate a review and report after the
arrests of both men who were connected to the four
killings. He wanted the review to assess whether sex
offenders are adequately monitored in California.
The Orange County Register later reported that
although the men were prohibited from being together,
records and interviews showed they routinely violated
this term of release without facing serious
consequences. One news source went as far as calling
them "friends for years." Twice these individuals
have cut off their tracking devices and absconded to
other states, clearly indicating they were in this
business together.
The IG report did allude to the need for a serious
discussion about the effectiveness of GPS devices as a
crime deterrent. Absent of harsh-enough penalties for
removing or altering an ankle bracelet, why would a
convicted sex offender not be tempted to cut off his
or her device knowing that the worst case scenario
they'd be given a few months behind bars and then be
sent back to where they left off?
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SB 722 is needed in order to send the message to
convicted sex offenders that cutting off or altering
their ankle bracelet is a serious offense and will not
be taken lightly. The two men mentioned earlier are
known to have re-offended on two different occasions.
When they first cut off their devices and fled to
Nevada, they should have been prosecuted with more
than just a short few months in county jail as this
was a deliberate attempt to run from law enforcement.
Additionally, the offenses listed in SB 722
deliberately spell out the most serious, egregious sex
crimes. These offenses are rape, spousal rape, sexual
penetration, lewd or lascivious acts and children,
sodomy, oral copulation, and continuous sexual abuse
of a child. SB 722 is needed today more than ever to
ensure that justice is being served to those that defy
law enforcement.
2.Summary of What This Bill Would Do and Current Law
As explained in detail above, there are several
circumstances when criminal offenders can be required to
wear a GPS device during a period of community supervision
or conditional release. Under current law, the consequence
for disabling or removing a GPS device generally is the
loss of the conditional release (for example, loss of
placement in alternative custody and a return to jail), or
a revocation of probation or parole. For sex offender
parolees who are required to have a GPS device as a
condition of parole, the sanction for removing or otherwise
disabling a GPS device is incarceration in a county jail
for 180 days. (Penal Code §3010.10.) This sanction was
enacted in 2013 pursuant to SB 57 (Lieu).
This bill would enact a new felony, punishable by
imprisonment in the state prison for 16 months, or two or
three years, for the willful removal or disabling of a GPS
device "if the device was affixed as a result of a criminal
sentence or juvenile court disposition for specified
forcible sex crimes."
3.Recent Special Review by The Inspector General
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As noted by the author, in October of 2014 the Office of
the Inspector General (OIG) issued a report entitled,
Special Review: Assessment of Electronic Monitoring of Sex
Offenders on Parole and the Impact of Residency
Restrictions. This review, conducted at the request of the
Senate Rules Committee pursuant to Penal Code section
6126(b), included the following observations:
There exists little objective evidence to
determine to what extent, if any, GPS tracking is a
crime deterrent, although a small 2012 study funded
by the National Institute of Justice of 516
high-risk sex offenders found that offenders who
were not subjected to GPS monitoring had nearly
three times more sex-related parole violations than
those who were monitored by GPS technology. Despite
the rarity of studies defending GPS as a crime
deterrent, the OIG's interviews with parole agents
and local law enforcement personnel found that they
value GPS technology as a tool for its ability to
locate parolees, track their movements, and provide
valuable information in solving crimes.
GPS technology adds to parole agents' workloads
in certain aspects, while affording time-savings in
others. For example, agents spend approximately two
hours reviewing and analyzing parolees' tracks for a
single-day period. On the other hand, GPS
facilitates mandatory face-to-face contacts between
parole agents and parolees by allowing the agent to
locate parolees more quickly than might be the case
in locating a non-GPS parolee.
Over 60 percent of parole agents who supervise
sex-offender parolees have caseloads exceeding
established departmental ratios (parolee-to-agent)
when taking into consideration the mix of high-risk
vs low-risk parolees per caseload. In addition, the
department has a disparity of caseloads across its
parole units, with 14 of the 37 parole units that
supervise sex offenders reporting caseload sizes
exceeding the department's established ratios for
all agents assigned to those units. Simultaneously,
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five other parole units report caseload sizes below
the department's established ratios for all of their
parole agents.<2>
The OIG also presented data over the five years prior to
the report demonstrating that "transient sex offenders have
committed a majority of parole violations among parolee sex
offenders over the five year period. In fact, in the most
recently completed fiscal year (2013-14), over 76 percent
of the sex offender parolees whom the department charged
with violating their parole terms were transient. . . .
According to the parole administrators the OIG talked to,
there are various reasons transient sex offenders violate
the conditions of their parole more often than those with a
residence. Among the reasons voiced were increased
prevalence of mental health issues, lack of a stable
support network, increased exposure to drugs and
prostitution on the streets, and challenges finding
employment."
With respect to recidivism among sex offender parolees the
OIG report states:
. . . (T)he OIG's analysis of CDCR's records of
violations by sex offender parolees, . . . reveals
that a very low proportion of violations - roughly 1
percent - over the five-year period were for
sex-related crimes. This runs contrary to the popular
belief that sex offenders have a high rate of
recidivism compared to other types of felons, an
underlying premise to placing Proposition 83
(Jessica's Law) on the California ballot. It also
reflects the findings of studies released by the U.S.
Department of Justice in 2003 and by CDCR in 2012.
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<2> Office of the Inspector General, Special Review:
Assessment of Electronic Monitoring of Sex Offenders on Parole
and the Impact of Residency Restrictions (footnotes omitted)
(http://www.oig.ca.gov/media/reports/Reports/Reviews /OIG_
Special_Review_Electronic_Monitoring
of_Sex_Offenders_on_Parole_and_Impact_of_Residency
_Restrictions_November_2014.pdf.)
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A 2003 study of over 9,000 male sex offenders released
from State prisons in 14 different states conducted by
the U.S. Department of Justice provides some objective
evidence as to recidivism rates of sex offenders. The
study found that "Compared to non-sex offenders
released from State prison, sex offenders had a lower
overall re-arrest rate" for any type of crime (not
just sex crimes) - 43 percent for sex offenders as
compared to 68 percent for non-sex offenders.
However, a more telling statistic concerns
reconvictions for a sex crime; the study found that
"of the 9,691 released sex offenders, 3.5 percent (339
of 9,691) were reconvicted of a sex crime within the
three-year follow up period."
A study released by CDCR's Office of Research in
October 2012 provides further context to sex
offenders' recidivism rate in California. Based on
its study of inmates released three years earlier, the
recidivism rate of sex offenders required to register
under California Penal Code Section 290 was just over
69 percent. However, the study's deeper analysis of
the recidivist group found that nearly 87 percent were
returned to prison for technical parole violations
unrelated to sex crimes. Only 1.9 percent (111
offenders out of 8,490 studied) were returned to
prison for new sex crimes.<3>
Members may wish to discuss the potential scope of this
bill, and the amendments suggested in Comment 6 below.
"Willful" removal or disabling "implies simply a purpose or
willingness to commit the act, or make the omission
referred to. It does not require any intent to violate
law, or to injure another, or to acquire any advantage."
(Penal Code § 7.) Thus, members may wish to discuss
whether a felony would be an effective and proportionate
penalty in every case where a GPS has been "willfully"
removed or disabled for these particular offenders -- for
example, an otherwise-compliant transient sex offender who
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<3> Id. at 18-19 (footnotes omitted).)
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may or may not have easy access to an outlet and fails to
re-charge a GPS device before it goes dead, or cases where
there is a reasonable explanation for a break in contact
(i.e. a device got wet, the parolee was in a location where
the signal was temporarily blocked, etcetera).
ARE THE EXISTING SANCTIONS FOR SEX OFFENDERS WHO DISABLE OR
REMOVE A GPS DEVICE INADEQUATE?
SHOULD THE PENALTY FOR DISABLING OR REMOVING A GPS DEVICE
BE BASED ON THE OFFENDER'S UNDERLYING OFFENSE, REGARDLESS
OF THE OFFENDER'S INTENT OR THE CIRCUMSTANCES?
1.Recent Legislation Compared to This Bill; Likely Effect of
This Bill
As explained above, this bill would apply to a limited class of
persons who have been convicted of serious sex crimes, including
child molestation. While the bill's literal scope as drafted
would include any of these offenders if a GPS device has been
affixed as a result of a criminal sentence or juvenile court
disposition, as a practical matter the bill would appear to be
limited primarily to persons on parole or postrelease community
supervision. Probation generally is prohibited under current
law for these categories of sex offenses. (Penal Code §§
1203.06, 1203.066.) Similarly, prison inmates with these
convictions would be ineligible for the alternative custody
program described above. While the jail alternative custody
statutes do not expressly exclude these offenders from
eligibility, it seems likely that county jail administrators
would not include them in their local programs. Thus, this bill
would appear to apply to parolees and persons coming out of
prison on postrelease community supervision.
Last session, this Committee passed SB 57 (Lieu), which
originally sought to enact a new felony for felons being
supervised in the community - either on parole or postrelease
community supervision -- who willfully defeat their
GPS/electronic monitoring. The bill was passed by the Committee
as amended to impose the mandatory jail term in current law.
Members may wish to discuss this bill compared to the Lieu
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bill of last session, and whether the likely effect of this
bill would be very similar to the Lieu bill before it was
amended in Committee.
SHOULD THE CURRENT SANCTION FOR PAROLEES WHO VIOLATE THEIR
GPS REQUIREMENTS - WHICH WERE ENACTED IN 2013 -- BE
INCREASED TO A FELONY?
WOULD A NEW FELONY OF 16 MONTHS, 2 OR 3 YEARS, BE MORE
EFFECTIVE THAN THE NEW SANCTION ENACTED IN 2013?
2.Research on Sentences as a Deterrent to Crime
Criminal justice experts and commentators have noted that, with
regard to sentencing, "a key question for policy development
regards whether enhanced sanctions or an enhanced possibility of
being apprehended provide any additional deterrent benefits.
Research to date generally indicates that increases in
the certainty of punishment, as opposed to the
severity of punishment, are more likely to produce
deterrent benefits.<4>
A comprehensive report published in 2014, entitled The
Growth of Incarceration in the United States, discusses the
effects on crime reduction through incapacitation and
deterrence, and describes general deterrence compared to
specific deterrence:
A large body of research has studied the effects of
incarceration and other criminal penalties on crime.
Much of this research is guided by the hypothesis that
incarceration reduces crime through incapacitation and
deterrence. Incapacitation refers to the crimes
averted by the physical isolation of convicted
offenders during the period of their incarceration.
----------------------
<4> Valerie Wright, Ph.D., Deterrence in Criminal Justice
Evaluating Certainty vs. Severity of Punishment (November 2010),
The Sentencing Project
(http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pd
f.)
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Theories of deterrence distinguish between general and
specific behavioral responses. General deterrence
refers to the crime prevention effects of the threat
of punishment, while specific deterrence concerns the
aftermath of the failure of general deterrence-that
is, the effect on reoffending that might result from
the experience of actually being punished. Most of
this research studies the relationship between
criminal sanctions and crimes other than drug
offenses. A related literature focuses specifically
on enforcement of drug laws and the relationship
between those criminal sanctions and the outcomes of
drug use and drug prices.<5>
In regard to deterrence, the authors note that in "the
classical theory of deterrence, crime is averted when the
expected costs of punishment exceed the benefits of
offending. Much of the empirical research on the deterrent
power of criminal penalties has studied sentence
enhancements and other shifts in penal policy. . . .
Deterrence theory is underpinned by a rationalistic
view of crime. In this view, an individual
considering commission of a crime weighs the benefits
of offending against the costs of punishment. Much
offending, however, departs from the strict decision
calculus of the rationalistic model. Robinson and
Darley (2004) review the limits of deterrence through
harsh punishment. They report that offenders must
have some knowledge of criminal penalties to be
deterred from committing a crime, but in practice
often do not."<6>
Members may wish to discuss whether the "rationalistic
view" of crime described above likely would apply to
persons who willfully disable or remove a GPS device - that
-------------------------
<5> The Growth of Incarceration in the United States (2014),
Jeremy Travis, Bruce Western and Steve Redburn, Editors,
Committee on Causes and Consequences of High Rates of
Incarceration, The National Research Council, p. 131 (citations
omitted)
(http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf
,)
<6> Id. at 132-133.
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is, whether the new felony would discourage the wrongful
conduct.
WOULD A NEW FELONY DETER THE SEX OFFENDERS TARGETED BY THIS
BILL FROM REMOVING OR DISABLING A GPS DEVICE?
The authors of the 2014 report discussed above conclude
that incapacitation of certain dangerous offenders can have
"large crime prevention benefits," but that incremental,
lengthy prison sentences are ineffective for crime
deterrence:
Whatever the estimated average effect of the
incarceration rate on the crime rate, the available
studies on imprisonment and crime have limited utility
for policy. The incarceration rate is the outcome of
policies affecting who goes to prison and for how long
and of policies affecting parole revocation. Not all
policies can be expected to be equally effective in
preventing crime. Thus, it is inaccurate to speak of
the crime prevention effect of incarceration in the
singular. Policies that effectively target the
incarceration of highly dangerous and frequent
offenders can have large crime prevention benefits,
whereas other policies will have a small prevention
effect or, even worse, increase crime in the long run
if they have the effect of increasing post-release
criminality.
Evidence is limited on the crime prevention effects of
most of the policies that contributed to the post-1973
increase in incarceration rates. Nevertheless, the
evidence base demonstrates that lengthy prison
sentences are ineffective as a crime control measure.
Specifically, the incremental deterrent effect of
increases in lengthy prison sentences is modest at
best. Also, because recidivism rates decline markedly
with age and prisoners necessarily age as they serve
their prison sentence, lengthy prison sentences are an
inefficient approach to preventing crime by
incapacitation unless they are specifically targeted
at very high-rate or extremely dangerous offenders.
For these reasons, statutes mandating lengthy prison
sentences cannot be justified on the basis of their
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effectiveness in preventing crime.<7>
WOULD MAKING THE DISABLING OR REMOVING OF A GPS DEVICE BY
THE SEX OFFENDERS TARGETED BY THIS BILL A FELONY RESULT IN
CRIME PREVENTION BENEFITS?
3.Amendments for Possible Consideration
Members and the author may wish to discuss tightening this
bill to ensure this new felony would apply only to
dangerous persons under supervision who intentionally evade
supervision with the purpose of causing further harm, as
distinguished from hapless supervised persons who, without
this intent, nevertheless allow or cause their GPS to fail.
Understanding that the current law mandating 180 days in
county jail for sex offender parolees who defeat their GPS
still would apply, members may wish to consider the
following refined scope for this bill:
A person who willfully removes or disables, or permits
another person to remove or disable, an electronic,
global positioning system, or other monitoring device
affixed to his or her person or the person of another ,
if the device was affixed as a condition of parole,
postrelease community supervision or probation as a
result of a conviction of any offense specified in
subdivision (c) of Section 667.61, if the person
intended to evade supervision and either does not
surrender, or is not apprehended, within one week of
the issuance of a warrant for absconding as a result
of a criminal sentence or juvenile court disposition
for any offense specified in subdivision (c) of
Section 667.61, is guilty of a felony, punishable by
imprisonment in the state prison for 16 months, or two
or three years. There shall be a rebuttable
presumption that the person intended to evade
supervision.
Thus, the elements for the new felony would be:
-------------------------
<7> Id. at 155-156 (emphasis added).
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The new felony would apply to persons on parole,
PRCS or probation for a serious sex offense (defined
under the 1-strike rape law);
The person willfully thwarts the GPS affixed as a
condition of supervision, as specified;
The person intended to evade supervision;
The person did not surrender or was not apprehended
within one week of the issuance of a warrant for
absconding (In 2013, when this Committee considered SB
57 (Lieu), a similar bill, it was learned that parole
has a "zero tolerance" approach to sex offender
parolees, where agents issue warrants immediately when
contact with a parolee is broken.); and
There shall be a rebuttable presumption that the
person intended to evade supervision.
In addition, members may wish to consider amending this
bill to ensure that a person convicted of its new felony
also would be subject to the level of supervision -
commonly known as the Containment Model -- now applicable
to sex offenders coming out of prison on parole.
Otherwise, sex offenders convicted of this new offense
would avoid supervision pursuant to the Containment Model,
which could inadvertently incentivize commission of this
new crime.<8>
SHOULD THESE AMENDMENTS BE MADE?
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<8> A cross-reference to a new felony enacted by this bill
should be added to Penal Code sections 1203.067 and 3008.
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-- END -