BILL ANALYSIS
AB 58
Page 1
Date of Hearing: April 21, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 58 (Jeffries) - As Introduced: December 5, 2008
SUMMARY : Changes the penalty for participation in a "sports
betting pool", as specified, from a misdemeanor to an
infraction, punishable by a fine not to exceed $250, for a
person not for gain, hire, or reward, other than that at stake
under conditions available to every participant, to participate
in a bet, wager, or betting pool with another person or group of
persons who are not acting for gain, hire, or reward other than
that at stake under conditions available to every participant,
on the result of any contest or event, including a sporting
event, as specified or where the bet or wager of not more than
$2,500.
EXISTING LAW :
1)States that every person:
a) Who engages in pool selling or bookmaking, with or
without writing, at any time or place;
b) Who, whether for gain, hire, reward, or gratuitously, or
otherwise, keeps or occupies, for any period of time
whatsoever, any room, shed, tenement, tent, booth,
building, float, vessel, place, stand or enclosure, of any
kind, or any part thereof, with a book or books, paper or
papers, apparatus, device or paraphernalia, for the purpose
of recording or registering any bet or bets, or any
purported bet or bets, or wager or wagers, or any purported
wager or wagers, or of selling pools, or purported pools,
upon the result, or purported result, of any trial, or
purported trial, or contest, or purported contest, of
skill, speed or power of endurance of man or beast, or
between men, beasts, or mechanical apparatus, or upon the
result, or purported result, of any lot, chance, casualty,
unknown or contingent event whatsoever;
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c) Who, whether for gain, hire, reward, or gratuitously, or
otherwise, receives, holds, or forwards, or purports or
pretends to receive, hold, or forward, in any manner
whatsoever, any money, thing or consideration of value, or
the equivalent or memorandum thereof, staked, pledged, bet
or wagered, or to be staked, pledged, bet or wagered, or
offered for the purpose of being staked, pledged, bet or
wagered, upon the result, or purported result, of any
trial, or purported trial, or contest, or purported
contest, of skill, speed or power of endurance of man or
beast, or between men, beasts, or mechanical apparatus, or
upon the result, or purported result, of any lot, chance,
casualty, unknown or contingent event whatsoever;
d) Who, whether for gain, hire, reward, or gratuitously, or
otherwise, at any time or place, records, or registers any
bet or bets, wager or wagers, upon the result, or purported
result, of any trial, or purported trial, or contest, or
purported contest, of skill, speed or power of endurance of
man or beast, or between men, beasts, or mechanical
apparatus, or upon the result, or purported result, of any
lot, chance, casualty, unknown or contingent event
whatsoever;
e) Who, being the owner, lessee or occupant of any room,
shed, tenement, tent, booth, building, float, vessel,
place, stand, enclosure or grounds, or any part thereof,
whether for gain, hire, reward, or gratuitously, or
otherwise, permits the same to be used or occupied for any
purpose, or in any manner prohibited by law; or,
f) Who lays, makes, offers or accepts any bet or bets, or
wager or wagers, upon the result, or purported result, of
any trial, or purported trial, or contest, or purported
contest, of skill, speed or power of endurance of man or
beast, or between men, beasts, or mechanical apparatus, is
punishable by imprisonment in the county jail for a period
of not more than one year or in the state prison. (Penal
Code Section 337a.)
2)States that in any accusatory pleading charging a violation of
this section, if the defendant has been once previously
convicted of a violation of any subdivision of this section,
the previous conviction shall be charged in the accusatory
pleading and, if the previous conviction is found to be true
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by the jury, upon a jury trial, or by the court, upon a court
trial, or is admitted by the defendant, the defendant shall,
if he or she is not imprisoned in the state prison, be
imprisoned in the county jail for a period of not more than
one year; pay a fine of not less than $500 nor more than
$5,000; or be punished by both such fine and imprisonment.
Nothing in this paragraph shall prohibit a court from placing
such a person on probation provided; however, that such person
shall be required to pay a fine of not less than $500 nor more
than $5,000 or to be imprisoned in the county jail for a
period of not more than one year as a condition thereof. In
no event does the court have the power to absolve a person
convicted hereunder from either being imprisoned or from
paying a fine of not less than $500. [Penal Code Section
337a(a).]
3)Provides that in any accusatory pleading charging a violation
of this section, if the defendant has been previously
convicted two or more times of a violation of any subdivision
of this section, each such previous conviction shall be
charged in the accusatory pleadings; and if two or more of
such previous convictions are found to be true by the jury,
upon a jury trial, or by the court, upon a court trial, or are
admitted by the defendant, the defendant shall, if he or she
is not imprisoned in the state prison, be imprisoned in the
county jail for a period of not more than one year, pay a fine
of not less than $1,000 nor more than $5,000, or be punished
by both such fine and imprisonment. Nothing in this paragraph
shall prohibit a court from placing such a person on probation
provided, however, that such person shall be required to pay a
fine of not less than $1,000 nor more than $5,000 or to be
imprisoned in the county jail for a period of not more than
one year as a condition thereof. In no event does the court
have the power to absolve a person convicted hereunder from
either being imprisoned or from paying a fine of not less than
$1,000. [Penal Code Section 337a(b).]
4)States that any person who gives, or offers to give, or
promises to give, or attempts to give, any money, bribe or
thing of value to any person who is umpiring, managing,
directing, refereeing, supervising, judging, presiding or
officiating at, or who is about to umpire, manage, direct,
referee, supervise, judge, preside or officiate at any
sporting event, contest, or exhibition of any kind whatsoever,
and specifically including, but without being limited to, such
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sporting events, contests, and exhibitions as baseball,
football, boxing, horseracing, and wrestling matches, with the
intention or agreement or understanding that such person shall
corruptly or dishonestly umpire, manage, direct, referee,
supervise, judge, preside, or officiate at, any such sporting
event, contest, or exhibition, or the players or participants
thereof, with the intention or purpose that the result of the
sporting event, contest, or exhibition will be affected or
influenced thereby, is guilty of a felony and shall be
punished by imprisonment in the state prison; by a fine not
exceeding $ 5,000; or by both such fine and imprisonment.
(Penal Code Section 337d.)
5)States it is unlawful for any person, as owner, lessee, or
employee, whether for hire or not, either solely or in
conjunction with others, to do any of the following without
having first procured and thereafter maintained in effect all
federal, state, and local licenses required by law: to deal,
operate, carry on, conduct, maintain, or expose for play in
California any controlled game; to receive, directly or
indirectly, any compensation or reward or any percentage or
share of the revenue, for keeping, running, or carrying on any
controlled game; or to manufacture, distribute, or repair any
gambling equipment within the boundaries of this state, or to
receive, directly or indirectly, any compensation or reward
for the manufacture, distribution, or repair of any gambling
equipment within the boundaries of California. [Penal Code
Section 337j(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In 2006, little
over two years ago in the community of Wildomar, in western
Riverside County, Margaret Hamblin, 73, and Cari Gardner, 39,
both of Wildomar were charged with operating a $50 football
pool at the Wildomar Elks Lodge. Vital law enforcement
resources were expended to investigate, charge and prosecute
these two women of participating in an activity that is as
common speeding. Statistics show 58 % of the human resources
professionals who took part in a 1999 SHRM survey said their
company's employees have participated in Super Bowl pools.
55% have participated in regular-season football pools.
1-in-10 said employees participate in fantasy football leagues
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at work. 30% said employees at their operations bet in office
pools surrounding the college basketball tournament. 44 % of
US workers have participated in office betting pools according
to the 2008 Spherion Workplace Snapshot. While AB 58 does not
legalize this common practice, it does, however, ensure that
the punishment more accurately fits the crime. So why not
simply legalize sports betting pools? In 1992, after Oregon
instituted a sports lottery, Congress passed the Professional
and Amateur Sports Protection Act (PASPA) to prevent the
further spread of legalized sports gambling. While barring
states from legalizing sports gambling, the law did allow
sports gambling to continue where already legal. This 1992
federal law limiting sports betting to Nevada gave the states
of New Jersey, Oregon, Delaware and Montana an opportunity to
put the question before voters."
2)ABC Enforcement : The Department of Alcoholic Beverage Control
(ABC) took administrative action against 33 licensees in
Fiscal Year 2006-07 for gambling violations. Of these, an
estimated 15 were for sports betting pools conducted by the
licensee, employees, or patrons. Conversely, ABC took action
against over 2,100 licensees during the same period for
violations involving minors. Most sports betting pools are
discovered during inspections or during uncover operations.
In most situations, a criminal citation is not issued and the
mattered is not referred to the district attorney. The matter
is usually just handled through the administrative action
itself. ABC's penalty guidelines (Rule 144) call for a 10-day
license suspension for pools, cards, dice, etc. As with most
vice crimes, there are aggravating and mitigating
circumstances that are considered. If a licensee was taking a
percentage of the prize money and if squares were $100, that
could be viewed as aggravation.
3)Veto of AB 1852 : AB 1852 (Jeffries), of the 2007-08
Legislative Session, was identical to this bill and was vetoed
due to the late passage of the budget. The Governor stated,
"The historic delay in passing the 2008-2009 State Budget has
forced me to prioritize the bills sent to my desk at the end
of the year's legislative session. Given the delay, I am only
signing bills that are the highest priority for California.
This bill does not meet that standard and I cannot sign it at
this time." The veto does not appear to be based on any
reasons of policy or cost.
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4)Prior Legislation :
a) AB 1852 (Jeffries), of the 2007-08 Legislative Session,
was identical to this bill and was vetoed.
b) AB 1753 (Committee on Governmental Organizations),
Chapter 546, Statutes of 2005, increased penalties for
those convicted of engaging in unlawful gambling activities
and changes certain provisions regulating the business of
gambling.
REGISTERED SUPPORT / OPPOSITION :
Support
California Public Defenders Association
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744