BILL ANALYSIS Ó
SB 722
Page 1
Date of Hearing: July 14, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
722 (Bates) - As Amended May 5, 2015
SUMMARY: Creates a new state prison felony for any person who
willfully disables an electronic, global positioning system
(GPS) if the device was affixed as a condition of parole,
postrelease community supervision (PRCS), or probation as a
result of a conviction for a specified sex offense.
Specifically, this bill:
1)Requires that the person must have intended to evade
supervision and either does not surrender, or is not
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apprehended, within one week of the issuance of a warrant for
absconding.
2)States that there shall be a rebuttable presumption that the
person intended to evade supervision.
3)Makes the violation of this provision a felony, punishable by
imprisonment in the state prison for 16 months, or two or
three years.
4)Exempts 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 the course of medical treatment of the person
subject to the device.
5)Requires the terms of probation or parole of a person who has
committed a violation of these provisions to include
participation and completion of a sex offender management
program.
EXISTING LAW:
1)Authorizes the California Department of Corrections and
Rehabilitation (CDCR) to utilize continuous electronic
monitoring, including GPS, to electronically monitor the
whereabouts of persons on parole as specified. (Pen. Code, §
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3010.)
2)Provides that every inmate who has been convicted for any
felony violation of a registerable sex offense or any attempt
to commit any of those offenses and who was committed to
prison and released on parole shall be monitored by GPS for
the term of his or her parole, or for the duration or any
remaining part thereof, whichever period of time is less.
(Pen. Code, § 3000.07, subd. (a).)
3)Provides, as enacted by Proposition 83 of 2006, that every
inmate who has been convicted for any felony violation of a
registerable sex offense, or any attempt to commit one of
those sex offenses, and who is committed to prison and
released on parole shall be monitored by GPS for life. (Pen.
Code, § 3004, subd. (b).)
4)Provides that whenever a parole officer supervising an
individual has reasonable cause to believe that the individual
is not complying with the rules or conditions set forth for
the use of continuous electronic monitoring as a supervision
tool, the officer supervising the individual may, without a
warrant of arrest, take the individual into custody for a
violation of parole. (Pen. Code, § 3010.7.)
5)Authorizes the court, upon revocation of parole, to do any of
the following:
a) Reinstate parole with modification of conditions, if
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appropriate, including a period of incarceration;
b) Revoke parole and order the parolee to serve time in the
county jail; or,
c) Refer the parolee to a reentry program or other
evidence-based program. (Pen. Code Section 3000.08, subd.
(f).)
6)Limits confinement in the county jail for up to 180 days of
incarceration per revocation. (Pen. Code Section 3000.08,
subd. (g).)
7)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. (Pen. Code, § 3010.10.)
8)Establishes 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 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.)
9)Requires persons placed on parole or formal probation for an
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offense that requires the person to register as a sex offender
to complete a sex offender management program. (Pen. Code, §§
1203.067, subd. (b) and 3008, subd. (d).)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "SB 722 focuses
upon high risk predatory sex offenders by limiting its
application to the offenses deemed most egregious by the
legislature when it approved the 'One Strike Rape' law. These
offenses are: rape, spousal rape, foreign object rape, lewd or
lascivious acts against children, sodomy, oral copulation, and
continuous sexual abuse of a child. The premise behind 'One
Strike Rape' is that one victim is enough.
"The circumstances of some sex offenses are so aggravated that
the state imposes a life sentence to avoid the potential of
another victim. When a rapist or child molester cuts off his
GPS device and evades the law the state has been put on notice
that others are at great risk. SB 722 is needed because in the
cases of Gordon and Cano the state simply waited for another
victim."
2)Due Process Concerns: The Due Process Clause of the Fourteenth
Amendment denies States the power to deprive the accused of
liberty unless the prosecution proves beyond a reasonable
doubt every element of the charged offense. (U.S. Const.,
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14th Amend.; In re Winship (1970) 397 U.S. 358, 364.) Where
intent of the accused is an element of the crime, its
existence is a question of fact to be determined by the jury.
(Morissette v. United States (1952) 342 U.S. 246, 274.) A
presumption on one of the required elements of a crime,
regardless of whether it is rebuttable, relieves the
prosecution of the affirmative burden of persuasion by
instructing the jury that it must find the presumed element
unless the defendant persuades the jury not to make such a
finding. (Francis v. Franklin (1985) 471 U.S. 307, 317.)
Such shifting of the burden of persuasion onto the defendant
is impermissible under the Due Process Clause. (Ibid., citing
Patterson v. New York (1977) 432 U.S. 197, 215.)
In Francis v. Franklin, supra, defendant, an escapee from
prison, had fled to a nearby home and demanded the resident's
car keys. The resident slammed the door and the defendant's
gun went off. The bullet traveled through the wooden door and
into the resident's chest killing him. The defendant was
charged with murder which requires proof of the intent to
kill. At trial the jury was instructed as follows on the issue
of intent: "The acts of a person of sound mind and discretion
are presumed to be the product of the person's will, but the
presumption may be rebutted. A person of sound mind and
discretion is presumed to intend the natural and probable
consequences of his acts, but the presumption may be rebutted.
. . ." (Francis v. Franklin, supra, 471 U.S. at p. 311.)
Defendant was found guilty of murder. Defendant appealed and
ultimately had his conviction overturned by the United States
Supreme Court.
The Court held that the jury instruction contained a mandatory
presumption that violated the Due Process Clause. The Court's
inquiry involved ascertaining whether the challenged portion
of the instruction creates a mandatory presumption or merely a
permissive inference. A mandatory presumption requires the
jury to come to a certain conclusion, while a permissive
inference suggests a possible conclusion but does not require
it. The Court found that the instruction in Francis was a
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mandatory presumption because it "directs the jury to presume
an essential element of the offense - intent to kill - upon
proof of other elements of the offense - the act of slaying
another. In this way the instructions 'undermine the
factfinder's responsibility at trial, based on evidence
adduced by the State, to find the ultimate facts beyond a
reasonable doubt.'" (Id. at p. 316, citing County Court v.
Allen (1979) 442 U.S. 140, 152.) Even though the jury
instructions allowed the presumption to be rebutted, the
presumption was still found to be unconstitutional because it
shifted the burden of persuasion on the crucial element of
intent from the prosecution to the defense. (Id. at p. 325.)
This bill contains a mandatory presumption that is rebuttable.
This relieves the prosecution of its burden of persuasion on
an element of the offense created by this bill. Specifically,
this bill requires that a person disabled or removed a GPS
device with the "intent to evade supervision." The defendant's
intent is an element of the offense, and unless it is proven
by the prosecution beyond a reasonable doubt that the
defendant intended to evade supervision, the defendant cannot
be found guilty. However, this bill further provides that
"there shall be a rebuttable presumption that the person
intended to evade supervision." Thus, similar to Francis,
supra, this bill creates a mandatory presumption that the jury
must find to be true, unless the defendant persuades them
otherwise. As stated in Francis, the Due Process Clause
"prohibits the State from using evidentiary presumptions in a
jury charge that have the effect of relieving the State of its
burden of persuasion beyond a reasonable doubt of every
essential element of a crime." (Francis v. Franklin, supra,
471 U.S. at p. 313.) The presumption in this bill improperly
shifts the burden of persuasion from the prosecution to the
defendant and therefore violates the defendant's
constitutional right to due process.
3)State Prison Overcrowding Considerations: In January 2010, a
three-judge panel issued a ruling ordering the State of
California to reduce its prison population to 137.5% of design
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capacity because overcrowding was the primary reason that CDCR
was unable to provide inmates with constitutionally adequate
healthcare. (Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United State
Supreme Court upheld the decision, declaring that "without a
reduction in overcrowding, there will be no efficacious remedy
for the unconstitutional care of the sick and mentally ill"
inmates in California's prisons. (Brown v. Plata (2011) 131
S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.)
After continued litigation, 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 its most recent status report to the court (June 2015), the
administration reported that as "of June 10, 2015, 111,370
inmates were housed in the State's 34 adult institutions,
which amounts to 134.7% of design bed capacity, and 7,726
inmates were housed in out-of-state facilities. The current
population is 2,352 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'
June 2015 Status Report In Response To February 10, 2014
Order, 2:90-cv-00520 KJM DAD PC, Three-Judge Court, Coleman v.
Brown, Plata v. Brown (fn. omitted).
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).)
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Moreover, there are still approximately 6,262 prisoners being
housed in private prisons. (See the latest CDCR monthly
population report, as of June 24, 2015:
< http://www.cdcr.ca.gov/Reports_Research/Offender_Information_S
ervices_Branch/WeeklyWed/TPOP1A/TPOP1Ad150624.pdf >.)
This bill creates a new state prison felony for any person who
disables or removes a GPS device affixed as a condition of
parole, probation, or PRCS as a result of a conviction for
specified sex offenses. According to CDCR's most recent
statistics, from January 2014 through March 2015, there were a
total of 2,584 warrants issued for sex offenders who absconded
from parole. Of those absconders, 1,261 were apprehended after
7 days, which is the amount of time specified under this bill.
Under the newly enacted Penal Code Section 3010.10 (SB 57
(Lieu), Chapter 776, Statutes of 2013), which created a new
parole violation for sex offenders who disable or remove a GPS
device, there were a total of 1,675 violations from January 1,
2014 through March 2015. These numbers can be used to
approximate the frequency of the type of violation this bill
seeks to address. This bill could potentially send hundreds,
if not thousands, of people to state prison, who would
otherwise serve their time in county jail.
Although the state is currently in compliance with the
court-ordered population cap (not counting the prisoners
housed in out-of-state or private prisons), creating new state
prison felonies will reverse the progress made in reducing the
state prison population. This is contrary to the court's
order for a durable solution to prison overcrowding.
4)Changes to Parole As a Result of Criminal Justice Realignment:
Prior to realignment, individuals released from prison were
placed on parole and supervised in the community by parole
agents of CDCR. If it was alleged that a parolee had violated
a condition of parole, he or she would have a revocation
proceeding before the Board of Parole Hearings (BPH). If
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parole was revoked, the offender would be returned to state
prison for violating parole.
Realignment shifted the supervision of some released prison
inmates from CDCR parole agents to local probation
departments. Parole under the jurisdiction of CDCR for
inmates released from prison on or after October 1, 2011 is
limited to those defendants whose term was for a serious or
violent felony; were serving a Three-Strikes sentence; are
classified as high-risk sex offenders; who are required to
undergo treatment as mentally disordered offenders; or who,
while on certain paroles, commit new offenses. (Pen. Code, §§
3000.08, subds. (a) and (c), and 3451, subd. (b).) All other
inmates released from prison are subject to up to three years
of PRCS under local supervision. (Pen. Code, § 3000.08, subd.
(b) and 3451, subd. (a).)
Realignment also changed the process for revocation hearings,
which was implemented in phases. Until July 1, 2013,
individuals supervised on parole by state agents continue to
have revocation hearings before BPH. After July 1, 2013, the
trial courts will assume responsibility for holding all
revocation hearings for those individuals who remain under the
jurisdiction of CDCR. In contrast, since the inception of
realignment, individuals placed on PRCS stopped appearing
before the BPH for revocation hearings. Their revocation
hearings are handled by the trial court.
Additionally, realignment changed where an offender is
incarcerated for violating parole or PRCS. Most individuals
can no longer be returned to state prison for violating a term
of supervision; offenders serve their revocation term in
county jail. (Pen. Code, §§ 3056, subd. (a) and 3458.) The
only offenders who may be returned to state prison if parole
is revoked are those with life terms. (Pen. Code, § 3000.1.)
Generally, there is a 180-day limit to incarceration on a
parole or PRCS violation. (Pen. Code, §§ 3056, subd. (a) and
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3455, subd. (c).)
SB 57 (Lieu), Chapter 776, Statutes of 2013, carved out a
mandatory 180-day term in county jail for sex offenders who
violate parole by removing or disabling a GPS or other
monitoring device. This bill creates a new felony offense for
certain sex offenders who remove or disable a GPS device and
states that the offense is punishable by imprisonment in the
state prison for 16 months, or two or three years. Assuming
that a person convicted pursuant to the provisions of this
bill receives the mid-term sentence of two years, and that the
person would be eligible for worktime credits (day-for-day)
because the new offense is not a "violent" felony or
punishable under the three strikes law, the time actually
served would be one year in state prison. If the person
received the lower term of 16 months, the time actually served
would be 8 months. Any days that the person spent in county
jail awaiting disposition on his or her case would also reduce
the term. Considering that under current law, this offense
would receive a mandatory 180 days in county jail, does this
bill create any deterrence for someone who would be facing
minimally increased time in state prison?
5)Effectiveness of GPS Devices: In October 2014, the Office of
the Inspector General (OIG), at the request of the Senate
Rules Committee pursuant to subdivision (b) of Penal Code
section 6126, conducted a review and assessment of electronic
monitoring of sex offenders on parole. According to the
report:
"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
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as a tool for its ability to locate parolees, track their
movements, and provide valuable information in solving
crimes."
(Office of the Inspector General, Special Review: Assessment
of Electronic Monitoring of Sex Offenders on Parole and the
Impact of Residency Restrictions (Oct. 2014), available at
< http://www.oig.ca.gov/media/reports/Reports/Reviews/OIG_Specia
l_Review_Electronic_Monitoring_of_Sex_Offenders_on_Parole_and_I
mpact_of_Residency_Restrictions_November_2014.pdf > (as of July
7, 2015), pg. 2.)
While anecdotally, GPS is an effective monitoring tool
allowing parole agents to track the movement and locate
parolees more quickly than is the case when supervising
non-GPS parolees, the report found that GPS technology adds to
a parole agent's workload in certain aspects, including
reviewing GPS tracks for each working day for all
GPS-monitored offenders, logging their tracking reviews daily,
and responding to after-hours alerts from the GPS monitoring
center.
"Parole administrators told the OIG that a typical parole
agent spends approximately two hours reviewing a parolee's
GPS tracks for a single-day period. During the course of a
GPS track review, a parole agent is expected to thoroughly
investigate all points of interest and alerts, using the
various viewing capabilities of the department's GPS
system. These capabilities include point-by-point playback,
where the parole agent views each individual GPS track
collected by the GPS system; point-pattern analysis, where
the agent views groups of GPS points to identify and assess
the parolee's patterns; zoom levels, which allow the parole
agent to adjust the view of the GPS points; and mapping
tools, which allow parole agents to superimpose the GPS
tracks on a map.
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"Department policy requires parole agents to document the
completion of their GPS review in parole supervision
records. The parole agent documents the date and time range
of the tracks reviewed as well as the findings observed and
any further investigation needed as a result of the review.
If the parole agent discovers during the review that a
parolee violated the conditions of parole--such as
travelling outside of his or her residence during curfew
hours--the parole agent would document the violation and
take the appropriate enforcement actions.
"Parole agents assigned to GPS duties also receive and
respond to alerts generated by the GPS system. The
department's GPS vendor monitors the information generated
by the GPS devices and notifies the parole agent when the
system identifies a condition that requires review. Less
urgent alerts (such as low-battery notices) are
communicated to the parole agent by email, while more
urgent alerts (such as notices regarding tampering with or
removing GPS devices) are sent by text message or telephone
call. Department policy requires parole agents to resolve
all alerts within six business days and to document in the
GPS system their actions taken, in addition to making
appropriate entries into the parolee's report of
supervision."
(Id. at pg. 8.)
Additionally, the report found that a majority of parole
agents carried caseloads exceeding department policy limits:
"Department policy states that a GPS caseload will consist
of 20 high-risk or 40 non-high-risk cases, or an equitable
combination of both. Accordingly, the department included
in its policy the following matrix for its managers to
follow in assigning caseloads of high-risk and
non-high-risk sex offenders.
"However, when comparing actual parole agent caseloads with
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the department's caseload matrix, the OIG found that 145 of
its 231 parole agents (63 percent) carried caseloads
exceeding the matrix limits. Although the average caseload
size for the 231 parole agents was just over 30 parolees
per agent, when the OIG factored in the mix of high-risk
and non-high-risk parolees in the caseloads, most parole
agents exceeded the matrix limits."
(Id. at pg. 10.)
As illustrated by the case of Franc Cano and Steven Gordon,
two registered sex offenders who were being monitored by GPS
when they allegedly raped and killed four women in Orange
County over the period of 5 months, high caseloads can prevent
the ability of parole agents to effectively monitor the
whereabouts of those being tracked.
As reported by the Los Angeles Times, "In the two months
before the first victim disappeared, the agent supervising
Cano and Gordon went at least three weeks with 15 to 17
high-risk parolees on his watch, along with another 21 to 25
sex offenders. State rules should have limited him to six to
10 additional parolees. The agent exceeded the allowed ratios
again in October, as did three other agents assigned to
supervise either Cano or Gordon between August and February.
Ondre Henry, president of the Parole Agents Assn. of
California, said caseloads consistently exceed 40 parolees,
and almost all agents have more than 20 cases. The workload,
he said, hampers the ability to oversee sex offenders and
fully investigate their whereabouts tracked on GPS devices.
'In the case of Gordon and Cano ? yes, you can review the
tracks. It's a very useful tool. But unless you can actually
do the investigative work ... it kind of defeats the purpose,'
Henry said. 'When you have caseload sizes that are so big,
it's hard to drill into those specific factors.'" (St. John
and Esquivel, California not following recommendation on
parole agent caseloads, L.A. Times (Aug. 10, 2014)
< http://www.latimes.com/local/la-me-ff-serial-killer-parole-201
40804-story.html >.)
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6)Argument in Support: According to the Orange County Sheriff's
Department, "The management of sex offenders continues to be a
complex challenge for the law enforcement community. Once a
sex offender serves his time in custody, a GPS device is the
best tool available to ensure that these types of offenders
are complying with state law. Due to the fact that these
devices are so integral to the management of this population,
offenders must know that there will be serious consequences
for device tampering. Creating this added level of deterrence
is a necessary addition to the penal code."
7)Argument in Opposition: According to the California Attorneys
for Criminal Justice (CACJ), "Current law allows for parole
revocation and incarceration in county jail for 180 days for
the disabling or removing of a GPS device. This law, as a
result of SB 57 (2013), went into effect on January 1, 2014.
In addition, AB 2121 (2014) requires a person who is required
to register as a sex offender as a condition of parole to
report to his or her parole officer within one working day
following the release from custody for the purpose of affixing
the GPS device. The law also allows a certain amount of
discretion in deciding whether certain individuals should be
incarcerated for such violations.
"In the last two legislative sessions, our laws have been
changed to provide certain oversight on tracked sex offenders.
However, there has been insufficient time to evaluate whether
the implementation of this new law has proven to be effective
at deterring persons from disabling or removing their GPS
devices. Notwithstanding these laws, sending a person back to
prison for a minor offense does not address the root issues of
persons being ill-prepared to reenter their communities upon
release. The enormous cost of incarceration and parole
revocations for even minor offenders continue to contribute to
budget constraints and fuel public cries for fiscal reform.
"This legislation is premature and unnecessary considering
Penal Code section 3010.10 was recently amended in the prior
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legislative session. There are no statistics or research
proving current law is insufficient or incarceration time must
be extended. For these reasons, CACJ must regretfully oppose
SB 722."
8)Prior Legislation:
a) AB 2121 (Gray), Chapter 603, Statutes of 2014, requires
sex offender parolees to report to their parole officers
within one working day following release from prison, or as
instructed by a parole officer, to be fitted with a GPS
tracking device.
b) SB 57 (Lieu), Chapter 776, Statutes of 2013, created a
new parole violation for a sex offender to remove or
disable an electronic GPS or other monitoring device
affixed as a condition of parole and required the person to
be incarcerated in county jail for 180 days.
c) AB 63 (Patterson), of the 2013-14 Legislative Session,
created an alternative felony/misdemeanor offense for
removal of a GPS monitoring device affixed as a condition
of post-release community supervision or parole. AB 63
failed passage in this Committee.
d) SB 722 (Nielson), of the 2013-14 Legislative Session,
would have created new penalties for any person to
willfully remove or disable an electronic monitoring or
supervising device affixed to his or her person or the
person of another, knowing that the device was affixed as
part of a criminal sentence or juvenile court disposition,
as a condition of parole or probation, or otherwise
pursuant to law. SB 742 failed passage in Senate Public
Safety.
e) AB 2016 (Gorell), of the 2011-12 Legislative Session,
would have prohibited a person from willfully removing or
disabling an electronic, GPS or other monitoring device
affixed to his or her person or the person of another,
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knowing that the device was affixed as a condition of a
criminal sentence, juvenile court disposition, parole,
probation, post-release community supervision or mandatory
supervision. AB 2016 was not heard by this Committee.
f) AB 179 (Gorell), of the 2011-12 Legislative Session, was
substantially similar to AB 2016. AB 179 failed passage in
this Committee.
g) SB 566 (Hollingsworth), of the 2009-10 Legislative
Session, would have established a penalty scheme for
persons who have been lawfully ordered to submit to a GPS
or electronic monitoring device, and willfully interfered
with the device, with penalties ranging from misdemeanors
to felonies depending upon the offense underlying the GPS
sanction. SB 566 failed passage in the Senate Public
Safety Committee.
h) SB 619 (Speier), Chapter 484, Statutes of 2005,
authorized the use of GPS technology to supervise persons
on probation and parole.
REGISTERED SUPPORT / OPPOSITION:
Support
California Against Slavery
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California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California District Attorneys Association
California Narcotic Officers Association
California State Lodge, Fraternal Order of Police
California State Sheriffs' Association
Crime Victims United of California
Long Beach County Police Officers Association
Los Angeles County Professional Peace Officers Association
Orange County Board of Supervisors
Orange County District Attorney's Office
Orange County Sheriff's Department
Sacramento County Deputy Sheriffs' Association
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San Diego County Sheriff's Department
San Diego County District Attorney's Office
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by:Stella Choe / PUB. S. / (916)
319-3744
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