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  








                                                                  AB 58
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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  








                                                                  AB 58
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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  








                                                                  AB 58
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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. 









                                                                  AB 58
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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