BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 668 (Lieu)
As Amended May 26, 2010
Hearing date: June 22, 2010
Penal Code
JM:dl
TRESPASS:
PRIOR COMMISSION OF CRIMES ON SUBJECT PROPERTY
HISTORY
Source: Los Angeles County Sheriff
Prior Legislation: AB 924 (Maldonado) - Ch. 101, Stats. 2003
SB 993 (Poochigian) - Ch. 805, Stats. 2003
SB 1486 (Schiff) - Ch. 563, Stats. 2000
Support: California Grocers Association; California Retailers
Association; California State Sheriffs' Association
Opposition:None known
Assembly Floor Vote: No longer relevant
KEY ISSUE
UNDER EXISTING LAW, A PERSON WHO PREVIOUSLY COMMITTED A VIOLENT
FELONY AT A CERTAIN LOCATION IS GUILTY OF TRESPASS IF HE OR SHE
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RETURNS TO THE PROPERTY, INCLUDING PROPERTY GENERALLY OPEN TO
THE PUBLIC, AFTER BEING TOLD BY A PEACE OFFICER AT THE REQUEST
OF THE OWNER OR THE OWNER'S AGENT, AS SPECIFIED, NOT TO RETURN
OR REMAINS AFTER BEING TOLD TO LEAVE.
(CONTINUED)
SHOULD A PERSON BE GUILTY OF TRESPASS IF THE PERSON PREVIOUSLY
COMMITTED ANY CRIME ON THE PROPERTY AND WAS TOLD NOT TO RETURN,
OR REMAINS ON THE PROPERTY AFTER BEING TOLD TO LEAVE?
PURPOSE
The purpose of this bill is to expand the crime of trespass to
include persons who, after having been convicted of any crime on
a particular property, go onto that property over the objections
of the owner, as specified.
Existing law includes numerous provisions defining various
forms of trespass and applicable penalties. Crime definitions
and penalties typically turn on whether any damage has been
done to property and whether the trespasser refuses a valid
request to leave the land. (Pen. Code 602-607.)
Existing law provides that any person is guilty of a
misdemeanor, punishable by a county jail term of up to 6
months, a fine of up to $1000 or both, who enters any other
person's cultivated or fenced land, or who enters uncultivated
or unenclosed lands where signs forbidding trespass are
displayed at intervals not less than three to the mile along
exterior boundaries and at all roads and trails entering the
lands without written permission, and does any of the
following:
Refuses or fails to leave immediately upon being
requested to do so by the owner, owner's agent or by
the person in lawful possession, or
Tears down, mutilates, or destroys any sign or notice
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forbidding trespass or hunting;
Removes or tampers with any lock on any gate on or
leading into the lands; or
Discharges a firearm. (Pen. Code 602, subd. (k).)
Existing law generally provides that a person commits one form
of trespass to cultivated, fenced or posted land, where he or
she, without the written permission of the landowner, the
owner's agent or of the person in lawful possession of the land:
Willfully enters any lands under cultivation or
enclosed by fence, belonging to, or occupied by another
person; or,
Willfully enters upon uncultivated or unenclosed lands
where signs forbidding trespass are displayed at
intervals not less than three to the mile along all
exterior boundaries and at all roads and trails
entering the lands. (Pen. Code 602.8, subd. (a).)
Existing law provides that trespassing - in circumstances other
than where the person refuses a valid order to leave the
premises, destroys a no-trespassing or no-hunting sign, tampers
with any lock, or discharges a firearm - is an infraction or a
misdemeanor, as follows:
First offense is an infraction, punishable by a fine of
$75. (Pen. Code 602.8, subd. (b)(1).)
Second offense on any contiguous land of the same owner
is an infraction, punishable by a fine of $250. (Pen.
Code 602.8, subd. (b)(2).)
A third or subsequent offense on any contiguous land of
the same owner is a misdemeanor punishable by
imprisonment in the county jail not exceeding 6 months;
by fine not exceed $1000; or both. (Pen. Code 602.8,
subd. (b)(3).)
Existing law includes the following exceptions to the
trespassing law in Section 602.8:
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A person who is conducting lawful union activities;
A person who is on the premises and engaging in
activities protected by the California or United States
Constitution;
A person making lawful service of process;
An appropriately licensed person engaged in land
surveying.
Existing law states that it is a misdemeanor punishable by six
months in county jail for every person who willfully enters any
lands under cultivation or enclosed by fence, belonging to, or
occupied by, another, or entering upon uncultivated or
unenclosed lands where signs forbidding trespass are displayed
at intervals not less than three to the mile along all exterior
boundaries and at all roads and trails entering the lands
without the written permission of the owner of the land, the
owner's agent or of the person in lawful possession and:
Refuses or fails to leave the lands immediately upon being
requested by the owner of the land, the owner's agent or by
the person in lawful possession to leave the lands;
Tears down, mutilates, or destroys any sign, signboard, or
notice forbidding trespass or hunting on the lands;
Removes, injures, unlocks, or tampers with any lock on any
gate on or leading into the lands; or,
Discharges any firearm. (Pen. Code 602, subd. (l).)
Existing law provides that any person who willfully enters and
occupies real property or structures of any kind without the
consent of the owner, the owner's agent, or the person in lawful
possession, is guilty of a misdemeanor. (Pen. Code 602, subd.
(m).)
Existing law allows for prosecution against those who refuse or
fail to leave land, real property, or structures belonging to or
lawfully occupied by another and not open to the general public,
upon being requested to leave by a peace officer at the request
of the owner, the owner's agent, or the person in lawful
possession, and upon being informed by the peace officer that he
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or she is acting at the request of the owner, the owner's agent,
or the person in lawful possession or the owner, the owner's
agent, or the person in lawful possession. (Pen. Code 602,
subd. (o).)
Existing law provides that any person who, without the written
permission of the landowner, the owner's agent, or the person in
lawful possession of the land, willfully enters any lands under
cultivation or enclosed by a fence, belonging to, or occupied
by, another, or who willfully enters upon uncultivated or
unenclosed lands where signs forbidding trespass are displayed
at intervals not less than three to the mile along all exterior
boundaries and at all roads and trials entering lands, is guilty
of a public offense punishable as follows:
A first offense is an infraction punishable by a fine of $75;
A second offense on the same land or any contiguous land of
the same landowner, without the permission of the landowner,
the landowner's agent, or the person in lawful possession of
the land, is an infraction punishable by a fine of $250; and,
A third or subsequent offense on the same land or any
contiguous land of the same landowner, without the permission
of the landowner, the landowner's agent, or the person in
lawful possession of the land, is a six-month misdemeanor.
(Penal Code Section 602.8, subd. (a).)
Existing law provides that a person is guilty of trespass where
the person enters private property, whether or not the property
is open to the public, and the following circumstances apply:
The person has been previously convicted of a violent
felony on the property, as defined, and;
The owner, the owner's agent, or lawful possessor, has
requested a peace officer to inform the person that the
property is not open to him or her
The peace officer has informed the person that he or she
may not enter the property and informs the person that the
notice has been given at the request of the owner or other
authorized person.
A single specified notification shall be valid and
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enforceable unless and until rescinded by the owner or
other specified authorized person.
This form of trespass is also committed where the person
fails to leave the property upon being asked to do so as
provided in the subdivision defining the crime. (Pen. Code
602, subd. (t).)
This bill provides that the form of trespass that is committed
where a person convicted of a violent felony that was committed
on particular private property returns to the property after
being told to leave or not to return is also committed where the
person has been convicted of any crime, including any felony,
misdemeanor or infraction.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
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. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
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adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court
agreed to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
The problem this bill is trying to address deals
specifically with trespassing as it relates to crimes
committed on private property. Law enforcement
agencies and both small and large retail businesses
have seen an increase in the number of repeat
offenders involved in shoplifting and petty theft in
local retail shops. A common practice has been that
once a person has been arrested for shoplifting or
petty theft in a retail establishment, the retailer
can request that law enforcement admonish the person
that they are not welcome back into the establishment.
Normally after such a request, the arresting law
enforcement officer will comply and advise the
arrested person that they cannot return to the
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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location. Unfortunately, this advisement has no
enforcement provision. So if a retailer recognizes a
person who they know has been advised not to return to
the establishment, there is nothing in code that makes
their return illegal, unless they have committed a
violent felony.
This bill would make it clear that when a person is
arrested and convicted of any crime upon a private
property, and that person refuses or fails to leave
the property after being informed by a peace officer
that they are not allowed on the property, then that
person can be arrested for trespassing.
2. The Term "Crime" Includes an Infraction or a Misdemeanor
The Penal Code provides that are three forms of crime: felony,
misdemeanor and infraction. (Pen. Code 16.) A felony is
punishable by more than one year in state prison and a maximum
fine of up to $10,000, unless another amount is specified.
(Pen. Code 17, subd. (a).) A misdemeanor is punishable by a
county jail term of up to one year and a maximum fine of $1,000.
(Pen. Code 18-19.) An infraction is not punishable by
imprisonment. The penalty for an infraction is generally a
fine, typically a maximum fine $250 for an infraction defined in
the Penal Code. A jury trial is not available for an
infraction. Indigent infraction defendants are not entitled to
counsel at public expense. (Pen. Code 19.6-19.8.)
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This bill would provide that a person who commits any crime on a
particular property, even property generally open to the public,
such as a store, restaurant or other public venue, is guilty of
trespass if he or she returns to the property after being told
not to return, or who remains on the property after being told
to leave. Existing law limits this form of trespassing to cases
where the person told to leave had been previously convicted of
a violent felony.
The background and discussions with the sponsor indicate that
this bill is expected to be used by a store, where a person has
previously shoplifted. Shoplifting can be charged as petty
theft, and if it appears that the defendant entered the store
with the intent to steal, second degree burglary. Second degree
(non-residential) burglary is an alternate felony-misdemeanor
(wobbler) while petty theft is a misdemeanor. A person who is
arrested for petty theft (theft of property worth no more than
$400) can be charged with an alternate felony-misdemeanor (petty
theft with a prior) if the person has been previously convicted
of petty theft or another specified theft offense, such a
robbery. In addition, Penal Code Section 490.1, petty theft in
amount under $50 can be charged as an infraction.
Arguably, the only infraction that would be at issue as the bill
is intended to apply is petty theft of no more than $50.
Perhaps the intent of the author and the sponsor can be realized
by providing that the crime that triggers a trespass under
subdivision (t) of Section 602.8 must be a felony, a misdemeanor
or an infraction charged under Penal Code Section 490.1.
SHOULD THIS BILL PROVIDE THAT A PERSON IS GUILTY OF TRESPASS IF
HE OR SHE RETURNS TO THE PLACE WHERE THE PERSON COMMITTED ANY
CRIME, NOT ONLY A VIOLENT FELONY, IF THE OWNER FORBIDS RETURN
AND THE PERSON RECEIVES NOTICE OF THE BAN, AS SPECIFIED?
3. Lifetime Ban - Concern over Restricting Access to Important
Services in the Community; Application to Young People Caught
Shoplifting
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The form of trespass committed by a violent felon who returns to
the place of the crime, in violation of notice not to return,
appears to be designed to protect persons who have been the
victims of traumatic crimes from having to face the perpetrator
in the same place where the event occurred. Under existing law,
the exclusion of the perpetrator from the property where a
violent crime is permanent, unless and until the exclusion is
revoked by the owner of the property or other authorized person.
Arguably, this bill changes the nature of this crime. Should a
permanent exclusion from a specific piece of private property
apply where a person is convicted of a petty theft or another
relatively minor crime? It is not uncommon for young people to
be arrested for petty theft in retail stores. A single theft
could result in banishment from that store, even for life, under
the threat of criminal prosecution.
Perhaps the bill could be amended to provide for a limited
period of time a person would be banned from a place where a
crime was committed. The author and the Committee may wish to
consider a five-year maximum term for a felony, a two-year
maximum term for a misdemeanor and a one-year maximum term for
petty theft prosecuted as an infraction under Section 490.1.
SHOULD THE LAW PROVIDE WHAT IS ESSENTIALLY A LIFETIME BAN ON A
PERSON RETURNING TO THE PLACE WHERE A CRIME SUCH AS SHOPLIFTING
OCCURRED?
WHERE A PERSON HAS BEEN CONVICTED OF A CRIME OTHER THAN A
VIOLENT FELONY, SHOULD THE BILL PROVIDE FOR A LIMITED-TIME
EXCLUSION, DEPENDENT ON THE NATURE OF THE UNDERLYING CRIME?
WOULD A REASONABLE OR ACCEPTABLE BAN ON RETURN TO THE PLACE
WHERE A CRIME OCCURRED INVOLVE A MAXIMUM OF FIVE YEARS FOR A
NON-VIOLENT FELONY, A MAXIMUM OF TWO YEARS FOR A MISDEMEANOR AND
A MAXIMUM OF ONE YEAR FOR PETTY THEFT OF LESS THAN $50 UNDER
PENAL CODE SECTION 490.1?
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