BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 58 (Jeffries)
As Introduced December 5, 2008
Hearing date: June 9, 2009
Penal Code
JM:br
NON-COMMERCIAL SPORTS BETTING POOLS
HISTORY
Source: Author
Prior Legislation: AB 1852 (Jeffries) - 2008, Vetoed
AB 1753 (Assembly Governmental Organization) - Ch.
546, Stats. 2005
Support: California Public Defenders Association
Opposition:None known
Assembly Floor Vote: Ayes 71 - Noes 1
KEY ISSUE
SHOULD PARTICIPATION IN A NON-COMMERCIAL SPORTS BETTING POOL, AS
SPECIFIED, BE DEFINED AS AN INFRACTION, WITH A MAXIMUM PENALTY OF
$250, PLUS PENALTY ASSESSMENTS?
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PURPOSE
The purpose of this bill is to provide that participation in a
non-commercial betting pool is an infraction, punishable by a
maximum fine of $250, plus penalty assessments.
Existing law (Pen. Code 337a) defines the alternate
felony-misdemeanor of bookmaking or pool selling and applies
that crime to the following circumstances:
Any person who engages in pool selling or bookmaking,
with or without writing, at any time or place;
Any person who keeps or occupies any place with
documents or paraphernalia for the purpose of recording any
bet or wager on any contest of skill, speed, et cetera of
person or animal or mechanical apparatus;
Any person who receives, holds, or forwards any money,
consideration, or representation thereof, bet, pledge, et
cetera, upon the result of any trial, contest of skill,
speed or power of endurance of person or animal, or between
persons, or mechanical apparatus, or upon the result of any
chance or unknown or contingent event;
Any person who, at any time or place, records, or
registers any bet or wager on the result of any contest of
skill, speed or power of endurance of person or animal or
upon the result, or purported result, of any chance or
contingent event whatsoever;
Any person who, being the owner, lessee or occupant of
any room, structure or vessel, as specified, permits the
same to be used or occupied for any purpose, or in any
manner prohibited by law; or
Any person who makes, offers or accepts any wager upon
the result, or purported result, of any trial or contest of
skill, speed, et cetera, is punishable by imprisonment in a
county jail for up to one year, a fine of up to $5000, or
both, or by imprisonment in the state prison for 16 months,
2 years or 3 years.
The crimes defined in Section 337a also apply to conduct
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that purports to accomplish the noted acts.
Existing law states that where a defendant is convicted of
bookmaking or pool selling for a second time, the defendant
shall, if not imprisoned in state prison, be imprisoned in the
county jail for a period of not more than one year; pay a fine
of not less than $1000 nor more than $10,000; or be punished by
both such fine and imprisonment. The court may place the
defendant on probation. However as a condition of probation the
defendant must pay a fine of between $1000 and $10,000, or be
imprisoned in the county jail for a period of not more than one
year. (Pen. Code 337a, subd. (b).)
Existing law provides where the defendant has been previously
convicted two or more times of bookmaking or pool selling, 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 $1000 nor more
than $15,000, or both. The court may place the defendant on
probation provided, however, that he or she must pay a fine of
not less than $1000 nor more than $15,000 or to be imprisoned in
the county jail for a period of not more than one year as a
condition thereof. (Pen. Code 337a, subd. (c).)
Existing law states that any person who bribes, or offers to
bribe, any person who is or will be umpiring, judging,
supervising, et cetera, any sporting event, contest, or
exhibition of any kind, with the intention or agreement that
such person shall corruptly umpire, judge, et cetera, such
event, contest, or exhibition is guilty of a felony and shall
be punished by imprisonment in the state prison for 16 months,
2 years or 3 years, a fine not exceeding $5000, or both.
(Pen. Code 337d.)
Existing law 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
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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. (Pen. Code
337j, subd. (a).)
Existing law provides that all persons and establishments
involved in gambling operations must be licensed and regulated
by the California Department of Justice, Division of Gambling
Control. (Bus. & and Prof. Code 19802, subd. (h).)
This bill 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 $500.
This bill provides that a sports betting pool is a betting pool
that is not operated for financial gain or hire, other than the
amount at stake under conditions available to every participant
in the pool as a result of any contest of skill, speed, et
cetera.
This bill limits the size of a sports betting pool, as defined
by this bill, to a pool involving no more than $2500.
This bill specifies that a sports betting pool cannot be
conducted on-line.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
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California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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COMMENTS
1. Need for This Bill
According to the author:
About 18 months ago, in western Riverside County, a
73-year-old grandmother was charged with a crime for
operating a $50 football pool at the Wildomar Elks
Lodge. Little did she know that existing law makes
participation in such pools a misdemeanor or a felony,
punishable by up to one year in imprisonment and/or a
$5000 fine, or by imprisonment in state prison. This
means that vital law enforcement resources were
expended to investigate, charge and prosecute these two
women for participating in an activity that is as
common as speeding. Statistics show:
58% of the human resources professionals
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 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.
Clearly the current punishment does not fit the crime.
AB 58 would remedy this by reducing participation in
such pools to an infraction, punishable by a fine not
to exceed five hundred dollars ($500). Commercial
sports betting and operating betting pools for profit
would continue to be treated as they are today.
Speeding is against the law, but it isn't a
misdemeanor. A friendly wager in the privacy of one's
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home or office shouldn't be, either.
2. Sports Betting Pools are Very Common, Particularly for Certain
Events
Sports betting pools are illegal in many states. It is not
unusual for such betting to be punishable by incarceration, as
it is in California. Nevertheless, such laws are routinely
ignored. Social and workplace betting pools are accepted and
even celebrated.
It appears the most popular sports betting pools are those for
the NCAA Men's Division I Basketball Tournament, colloquially
known as "March Madness." Many newspapers and Web sites
typically provide blank brackets on which pool participants can
make their choices for winners and losers in the tournament.
According to a March 16, 2008 article in the New York Times a
2005 survey by the NCAA estimated that 30 million people
participated in tournament office pools. A more recent study by
an employment recruiting company put the number at 37 million.
Most of these pools include virtually every level of personnel
in a company or firm and require relatively minimal bets.
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Pro football betting pools at offices, social clubs, taverns and
other places are also very common. The author's statement
describes a very small-scale football betting pool in a Southern
California Elks Club.
ARE SPORTS BETTING POOLS ON EVENTS SUCH AS THE NCAA BASKETBALL
TOURNAMENT SO COMMON AS TO INDICATE THAT MOST PEOPLE IGNORE
EXISTING LAWS THAT MAKE PARTICIPATING IN SUCH A POOL AN
ALTERNATE FELONY-MISDEMEANOR?
SHOULD PARTICIPATION IN A SMALL-SCALE SPORTS BETTING POOL BE NO
MORE THAN AN INFRACTION?
3. ABC Enforcement of Gambling Laws in Licensed Establishments
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. (In comparison, 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 undercover operations. In most
situations, a criminal citation isn't issued and the matter is
not referred to the district attorney. The matter is usually
handled through the administrative action itself. ABC's penalty
guidelines (Rule 144) call for a 10-day license suspension for
pools, cards, dice, etc.
4. Prior Legislation
AB 1852 (Jeffries), which was essentially identical to this
bill, passed Senate Public Safety in 2008. The bill was vetoed
by the Governor based on budget-related considerations unrelated
to the policy issues raised by this bill.
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AB 1753 (Committee on Governmental Organization), Chapter 546,
Statutes of 2005, increased penalties for those convicted of
engaging in unlawful gambling activities and changed certain
provisions regulating the business of gambling.
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