BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

                                                                     5
                                                                     8
          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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                                                           AB 58 (Jeffries)
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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.
               ----------------------
          <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.
          ---------------------------
          <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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