BILL ANALYSIS
AB 2152
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Date of Hearing: April 20, 2010
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2152 (Nielsen) - As Amended: April 14, 2010
FOR VOTE ONLY
SUMMARY : Requires the California Department of Corrections'
(CDCR) Division of Adult Parole Operations to report to the
Board of Parole Hearings (BPH) any parolee whose commitment
offense was a "serious" or "violent" felony, as specified, who
has engaged in any criminal conduct, as defined, or who has
violated any condition of parole. Specifically, this bill :
1)Provides that upon granting parole to any prisoner, the BPH
shall inquire into whether the prisoner is a member or
associate of any prison gang or any criminal street gang. If
the prisoner is verified to be a member or associate of any
prison gang or criminal street gang, or if the prisoner is
required to register as a convicted gang member, the BPH shall
impose the following conditions on the parole of that
prisoner:
a) That the prisoner shall not participate in, promote,
further, or assist in any prison gang or criminal street
gang activity;
b) That the prisoner shall not associate with any member of
a prison gang or street gang;
c) That the prisoner shall not wear or carry on his person
any gang colors or any sign, symbol, or paraphernalia
associated with gang activity; and,
d) That the prisoner shall not violate any gang abatement
injunction, ordinance or court order.
2)States that a prisoner is a verified member or associate of a
prison gang or criminal street gang if that person if that
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person is identified as a member or associate of a prison gang
or criminal street gang by CDCR or by the Department of
Justice (DOJ), or by any local law enforcement agency.
3)Defines the following terms:
a) "Criminal street gang" is synonymous with "criminal gang
" and "street gang" and has the same meaning as in the
Street Terrorism Enforcement and Prevention Act.
b) "Prison gang" is any gang which originated and has its
roots within the prison system of the CDCR or any other
prison system.
4)Provides that the CDCR's Division of Adult Parole Operations
shall report to the BPH any parolee who is suspected of
engaging in any of the following kinds of behavior:
a) Any conduct that is defined as a "violent" felony, as
specified;
b) Any conduct that is defined as a "serious felony;
c) Any assaultive conduct resulting in serious injury to
the victim;
d) Possession, control, use of, or access to, any firearm,
explosive, or crossbow, or possession or use of any weapon
specified in Penal Code Section 12020(a), or any knife
having a blade longer than two inches, except kitchen
knives kept solely in the parolee's residence or knives
related to the parolee's employment used exclusively in
connection with the parolee's employment;
e) Involvement in any fraudulent scheme or schemes
involving more than $1,000;
f) Sale, transportation, or distribution of any narcotic or
other controlled substance as defined in the Uniformed
Controlled Substances Act;
g) A parolee whose whereabouts are unknown and who has been
unavailable for contact for 30 days of more;
h) Any other conduct or pattern of conduct in violation of
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the conditions of parole deemed sufficiently serious by
division staff, including repetitive parole violations and
escalating criminal conduct;
i) The failure to register if the person is required to
register as a convicted sex offender;
j) The refusal to sign any form required by the DOJ
explaining the duty of the person to register as a
convicted sex offender;
aa) The failure to provide two blood specimens, a saliva
sample, right thumb impressions, and full palm impressions
of each hand, as required by the DNA and Forensic Data Base
and Data Bank Act;
bb) Violation of a special condition prohibiting any active
participation or assistance in, or promotion or furtherance
of, prison gang or criminal street gang activity, if that
condition was imposed;
cc) Violation of the special condition requiring compliance
with any gang abatement injunction, ordinance, or court
order if that condition was imposed; or,
dd) Conduct indicating that the parolee's mental condition
deteriorated to the point that the parolee is likely to
engage in future criminal behavior.
5)Requires CDCR's Division of Adult Parole Operations to report
to the BPH any parolee whose commitment offense was a
"serious" or "violent" felony, as specified, who has engaged
in any criminal conduct, as defined, or who has violated any
condition of parole. For purposes of this requirement,
criminal conduct means conduct constituting a felony,
misdemeanor, or infraction under federal, state, or local law.
EXISTING LAW :
1)Provides that notwithstanding any other provision of law, CDCR
shall not return to prison, place a parole hold, or report any
parole violation to the Board of Parole Hearings regarding any
person to whom all of the following criteria apply:
a) The person is not required to register as a sex
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offender, as specified;
b) The person was not committed to prison for a serious
felony or a violent felony (strikes), and does not have a
prior conviction for a serious felony or a violent felony
(strikes);
c) The person was not committed to prison for a sexually
violent offense, as defined, and does not have a prior
conviction for a sexually violent offense, as defined;
d) The person was not found guilty of a serious
disciplinary offense, as defined in regulation by CDCR,
during his or her current term of imprisonment;
e) The person is not a validated prison gang member or
associate, as defined in regulation by CDCR;
f) The person did not refuse to sign any written
notification of parole requirements or conditions,
including, but not limited to, the written notification of
requirements, as specified; and,
g) The person was evaluated by CDCR using a validated risk
assessment tool and was not determined to pose a high risk
to re-offend. (Penal Code Section 3000.03)
2)Provides that the Board of Prison Terms shall have the power
top establish and enforce rules and regulations under which
prisoners committed to the state prisons may be allowed to go
upon parole outside the prison buildings and enclosures when
eligible for parole. (Penal Code Section 3052.)
3)States that Board of Parole Hearings (BPH) shall be composed
of nine commissioners appointed by the Governor with the
advice and consent of the Senate for a term of four years and
until the appointment and qualification of his successor.
Commissioners shall be eligible for reappointment. (Penal
Code Section 5075.)
4)Requires BPH to meet at each of the state prisons at such
times as may be necessary for a full and complete study of the
cases of all prisoners whose applications for parole come
before it. Requires the board to meet and transact business in
panels consisting of at least three persons, and no action
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shall be valid unless concurred in by a majority vote of the
persons present. Allows BPH to employ deputy commissioners to
whom it may assign appropriate duties including the hearing of
cases and the making of decisions. (Penal Code Section
5076.1.)
5)Requires the BPH to meet with each inmate who was sentenced to
an indeterminate term during the third year of incarceration
to review the inmate's file, make recommendations, and
document activities and conduct pertinent to granting or
withholding post-conviction credit. [Penal Code Section
3041(a).]
6)Requires at least two BPH commissioners or deputy
commissioners to meet with an inmate one year before the
inmate's minimum eligible parole date and "normally" set a
parole release date. [Penal Code Section 3041(a).]
7)Requires the BPH to set a release date unless it determines
that the gravity of the current convicted offense(s), or the
timing and gravity of current or past convicted offense(s), is
such that consideration of public safety requires a more
lengthy period of incarceration and that a parole date cannot
be fixed at this meeting. [Penal Code Section 3041(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The death of
Chelsea King is a tragedy, but it could have been avoided, had
CDCR not willfully ignored the 'Robin Reagan Regulation' I put
in place I the 1990's.
"These rules are in place because of the tragic death of William
Reagan. William was murdered outside of his business by a
parolee, Glen Cornwell. Cornwell was caught by a police
officer several months earlier in possession of drugs and a
weapon, yet his behavior was never reported to the Board.
Cornwell was freed, and the consequences resulted in the
senseless murder of Mr. Reagan.
"Had the rules been followed, John Gardener III would have been
reported to the Board of Parole Hearings. John Gardner, now
charged with the murder of Chelsea King, is but the most
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recent egregious example of dangerous parole policies. In
2000, Gardener was convicted of 'Lewd and Lascivious Acts with
a Child Under 14' and for one count of false imprisonment. He
was given sentencing and parole leniency as he violated parole
seven times including behavior that is the most predictive of
future victimization by a sex offender, including living near
a school and marijuana possession.
"For six of his violations, he was not referred to the Board of
Parole Hearings (BPH or Parole Board) as required by the
'Robin Reagan Regulation.' The one time he was referred to
the Board, he got in parole-speak 'love'-no
consequence-continue on parole.
"As Chairman of the Board of Prison Terms in 1994, I wrote this
regulation to stop such dangerous, repetitious and escalating
criminality. I have no doubt that, had CDCR followed this
regulation that I put into place, Chelsea King would be alive
today. It is unconscionable that CDCR would ignore this
common-sense regulation that has protected Californians over
the last 16 years.
"In response, I have amended AB 2152 to address that concern.
This bill would codify the 'Robin Reagan Regulation' into the
state Penal Code. This bill also would codify the 'zero
tolerance' gang regulation that includes any parolee,
validated by CDCR, Department of Justice, or by any local law
enforcement authority as a gang member, to be reported to the
Board if they are caught associating or promoting gang
behavior. Californians expect their government to keep them
safe and AB 2152 will go a long way to accomplish just that."
2)Background : According to background supplied by the author,
"On 1993, following the murder of William Reagan by a parolee,
the Board of Prison Terms adopted a series of regulations.
Those regulations, which were subsequently named after
William's daughter Robin, set forth a set of guidelines that
state any parolee who is reasonably believed to have engaged
in a specific list of behaviors MUST be reported to the Board.
Those regulations have reasonably protected the public over
the last two decades. However, it has come to the attention
of our office that CDCR is ignoring these regulations to the
detriment of public safety. This bill would codify these
regulations into the Penal Code, ensuring that CDCR could not
ignore them in the future."
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3)Technical Violations of Parole . This bill codifies the "Robin
Reagan Regulation" which requires that certain specific
instances of parolee conduct be reported to BPH. However,
additionally, this bill requires that any violation of the
conditions of parole must be reported for any parolee who was
committed to prison for a "serious" or "violent" felony. The
"Robin Reagan Regulation" only requires that a violation
relating to a condition to abstain from alcoholic beverages be
reported. This bill goes further than the "Robin Reagan
Regulation" in that this bill requires that all violations of
parole be reported including "technical" violations.
Increasingly, CDCR has been using intermediate or alternative
sanctions to deal with less serious violations of the
conditions of parole in an effort to reduce overcrowding
rather that violate parole and return the parolee to custody.
On September 18, 2009, CDCR submitted a "Plan for Prison
Population Management" to the Federal Three Judge Panel in
response to the court's order to submit a plan to reduce the
population of CDCR. That plan promised to make greater use of
electric monitoring systems, such as global positioning
systems (GPS), for parole violators in lieu of revocation and
re-incarceration. The portion of this bill that requires any
violation of a condition of parole with regard to parolees
committed for a "serious" or "violent" felony to be reported
to BPH would appear to take CDCR in a different direction.
Should certain specific parolees be reported to BPH for
violating a condition of parole even if the parole agent or
parole supervisor does not deem the violation to warrant
re-incarceration?
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
Friends Committee on Legislation
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744