BILL ANALYSIS
AB 2391
Page 1
Date of Hearing: April 20, 2010
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2391 (Torrico) - As Amended: April 6, 2010
SUMMARY : Requires the California Department of Corrections and
Rehabilitation (CDCR) to classify each parolee in one of five
tiers. Specifically, this bill :
1)Defines "Tier 1 parolees" as individuals who have "two
strikes" against them, parolees who are on parole for a sex
offense, or parolees participating in an enhanced outpatient
program.
2)Defines "Tier 2 parolees" as individuals pursuant to a
conviction of "high drug, high property, or high violence"
crimes or individuals who have been assessed to have a medium
or high score on a validated risk assessment tool.
3)Defines "Tier 3 parolees" as individuals who do not fall
within any other tier.
4)Defines "Tier 4 parolees" as individuals pending revocation of
parole and parolees in custody.
5)Defines "Tier 5 parolees" as individuals on nonrevocable
parole.
6)Requires CDCR allocate available resources for supervision
consistent with the supervision requirement of the five tiers.
EXISTING LAW :
1)Provides that Board of Parole Hearings (BPH) has the power to
establish and enforce parole rules and regulations. (Penal
Code Section 3052.)
2)Generally requires persons convicted of enumerated sex
offenses to register within five working days of coming into a
city or county, with specified law enforcement officials in
AB 2391
Page 2
the city, county or city and county where he or she is
domiciled, as specified. (Penal Code Section 290.)
3)Defines a "violent felony" as any of the following: murder or
voluntary manslaughter; mayhem; rape or spousal rape
accomplished by means of force or threats of retaliation;
sodomy by force or fear of immediate bodily injury on the
victim or another person; oral copulation by force or fear of
immediate bodily injury on the victim or another person; lewd
acts on a child under the age of 14 years, as defined; any
felony punishable by death or imprisonment in the state prison
for life; any felony in which the defendant inflicts great
bodily injury on any person other than an accomplice, or any
felony in which the defendant has used a firearm, as
specified; any robbery; arson of a structure, forest land, or
property that causes great bodily injury; arson that causes an
inhabited structure or property to burn; sexual penetration
accomplished against the victim's will by means of force,
menace or fear of immediate bodily injury on the victim or
another person; attempted murder; explosion or attempted
explosion of a destructive device with the intent to commit
murder; explosion or ignition of any destructive device or any
explosive which causes bodily injury to any person; explosion
of a destructive device which causes death or great bodily
injury; kidnapping; assault with intent to commit mayhem,
rape, sodomy or oral copulation; continuous sexual abuse of a
child; carjacking, as defined; rape or penetration of genital
or anal openings by a foreign object; felony extortion;
threats to victims or witnesses, as specified; first degree
burglary, as defined, where it is proved that another person
other than an accomplice, was present in the residence during
the burglary; use of a firearm during the commission of
specified crimes; and, possession, development, production,
and transfers of weapons of mass destruction. [Penal Code
Section 667.5(c)]
4)Defines a "serious felony" as any of the following: murder or
manslaughter; mayhem; rape; sodomy; oral copulation; lewd acts
on a child under the age of 14; any felony punishable by death
or imprisonment for life; any felony in which the defendant
inflicts great bodily injury; attempted murder; assault with
the intent to commit rape or robbery; assault with a deadly
weapon or instrument on a peace officer; assault by a life
prisoner on a non-inmate; assault with a deadly weapon by an
inmate; arson; exploding a destructive devise with the
AB 2391
Page 3
intention to commit murder or great bodily injury;
first-degree burglary; armed robbery or bank robbery;
kidnapping; holding of a hostage by a person confined to a
state prison; attempting to commit a felony punishable by
death or life in prison; any felony where the defendant
personally used a dangerous or deadly weapon; selling or
otherwise providing heroin, PCP or any type of
methamphetamine-related drug; forcible sexual penetration;
grand theft involving a firearm; carjacking; assault with the
intent to commit mayhem, rape, sodomy or forcible oral
copulation; throwing acid or other flammable substance;
assault with a deadly weapon on a peace officer; assault with
a deadly weapon on a member of the transit authority;
discharge of a firearm in an inhabited dwelling or car; rape
or sexual penetration done in concert; continuous sexual abuse
of a child; shooting from a vehicle; intimidating a victim or
witness; any attempt to commit the above-listed crimes except
assault or burglary; and using a firearm in the commission of
a crime and possession of weapons of mass destruction. [Penal
Code Section 1192.7(c).]
5)Prohibits CDCR from returning a parolee to prison, placing a
parole hold on the parolee, or reporting the parolee to the
Board of Parole Hearings for a violation of parole if:
a) The parolee is not required to register as a sex
offender, as specified;
b) The parolee does not have a conviction for a violent or
serious felony, as specified;
c) The parolee does not have a conviction for a sexually
violence offense;
d) The parolee was not found guilty of a serious
disciplinary offense during his or her current term of
imprisonment;
e) The parolee is not a validated prison gang member or
associate, as specified;
f) The parolee signs a written notification of parole
requirements and conditions, as specified; and,
g) The parolee was not assessed to pose a high risk to
AB 2391
Page 4
reoffend, using a validated risk assessment tool.
6)For an inmate sentenced to a determinate sentence for a
specified violent sex offense, the period of parole shall not
exceed five years unless the parole authority for good cause
waives the period of parole. [Penal Code Section 3000(b)(1).]
7)In the case of an inmate sentenced to a determinate sentence,
except for an inmate sentenced for a violent sex offense, the
period of parole will not exceed three years unless the parole
authority for good cause waives the period of parole and
discharges the inmate from custody. [Penal Code Section
3000(b)(1).]
8)In the case of an inmate sentenced to an indeterminate
sentence, the period of parole shall not exceed five years
unless the parole authority for good cause waives the period
of parole. [Penal Code Section 3000(b)(2).]
9)In the case of an inmate for which the inmate has received a
life sentence pursuant to the "one strike" sex law or as a
habitual sex offender, the period of parole shall be 10 years
which may be extended for one additional five-year period.
[Penal Code Section 3003(b)(3).]
10)Any inmate sentenced for first- or second-degree murder with
a maximum term of life imprisonment the period of parole, if
parole is granted, shall be the remainder of the inmate's
life. [Penal Code Section 3000.1(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Last year SBx3
18 created a two-tier system, those of whom are on regular
parole and those of whom are on non-revocable parole. Given
the state's current fiscal crisis, this was a step in the
right direction to do more with less. Unfortunately, SBx3 18
only identified those parolees who were least likely to pose a
threat to public safety and did not go far enough in
identifying the greatest threats. AB 2391 would expand the
tiers to assist the California Department of Corrections and
Rehabilitation in identifying the most dangerous parolees to
prioritize and allocate resources accordingly."
AB 2391
Page 5
2)Undefined terms : A number of terms are used in this bill
which are not specifically defined, and it is unclear from the
text what these terms encompass.
a) "Two strikes" - Although it is common to refer to the
enhanced sentencing program in terms of "strikes," that
term is not specifically defined in the Penal Code.
Instead, the "three strikes" sentence enhancement scheme
refers to specific sections of the Penal Code which define
felonies as either serious or violent, and applies sentence
enhancements to the base term of the felony an individual
is convicted of. [Penal Code Sections 667, 667.5(c),
1170.12, and 1192.7(c).] Although it is likely that the
author is referring to the scheme under the specified
sections of the Penal Code, specific cross-references to
the appropriate sections should be included.
b) "Sex offense" - The term "sex offense" is not defined in
the Penal Code, and it is not clear from the text of this
bill which offenses would be included within this term. It
is possible that the author is referring to the offenses
for which an individual is required to register as a sex
offender. (Penal Code Section 290.) If so, a reference to
the appropriate section of the Penal Code should be
included.
c) "Enhanced outpatient program" - There is no specific
reference or definition of "enhanced outpatient program" in
the Penal Code. There are several possible programs
mentioned in the Penal Code which may qualify as an
"enhanced outpatient program." Possibilities include drug
rehabilitation programs [Health and Safety Code Section
11550(c)], mental health treatment programs (Penal Code
Section 3073), and job training programs (Penal Code
Section 3105). A specific reference to the applicable
sections should be included; if some alternative definition
is intended by the author, a definition should be included.
d) "High drug crime" - There is no reference to "high drug
crimes" in the Penal Code and it is unclear which crimes
the author intends this provision to include.
Possibilities include all crimes involving narcotics,
crimes involving narcotics other than simple possession,
AB 2391
Page 6
crimes involving specific types of narcotic deemed to be
more dangerous than others (for example, drugs listed in
Schedule I) , or some other classification. "High drug
crimes" should be defined and references to specific penal
code sections should be included, if applicable.
e) "High property crime" - There is no reference to "high
property crimes" in the Penal Code and it is unclear which
crimes the author intended this provision to include. It
is possible the author intended to refer to theft crimes
with a high dollar value, but there is no there is no
indication of what the minimum value of the property
stolen. A specific definition of "high property crimes"
should be included in the text of the bill and references
to specific Penal Code sections included, if applicable.
f) "High violence crime" - There is no reference to "high
violence crimes" in the Penal Code and it is unclear which
crimes the author intended this provision to include. This
provision may refer to the list of violent crimes
enumerated in the Penal Code. [Penal Code Section
667.5(c).] If so, a reference to the application section
of the penal code should be included. If the author
intended other offenses to be included within this
provision, a specific definition should be included.
3)New Supervision Policy Recently Implemented by CDCR for
Parolees : In response to the passage of SBx3 18, CDCR
recently adopted a new policy for the supervision of parolees.
According to CDCR, the new policies will reduce agent
caseloads to an average of 48 parolees for each agent,
allowing agents "a better opportunity to supervise parolees
more aggressively, and interact more frequently with local law
enforcement, rehabilitative service providers and other
community partners." Additionally, the new program:
a) Places 1,000 parolee gang members on active global
positing system (GPS) supervision and will add 2,000
electronic tracking devices for parole violators as an
alternative to incarceration;
b) Increases monitoring requirements for sex offenders on
parole who are supervised using GPS;
c) Reclassifies some existing parole positions to create
AB 2391
Page 7
190 new parole supervisors to oversee line-level parole
agents;
d) Adds 30 field training officers to maintain proper
training standards for parole agents; and,
e) Uses measurement guidelines for supervision that focuses
on a parolees successful transition into the community
rather than how many times they are revoked.
4)Unclear Which Tier a "Third Strike" Parolee Would Be Placed :
Under specified sections of the Penal Code, an individual
convicted of a third felony, after the conviction of two
previous serious or violent felonies, is subject to sentence
enhancements. [Penal Code Section 667(e)(2)(A).] The minimum
term is the greater of three times the punishment for each
felony conviction; 25 years; or the term for the underlying
conviction, or any period prescribed by specified sections of
the penal code with the maximum term life in imprisonment.
[Penal Code Section 667(e)(2)(A).]
Although these code sections apply a significant term of
imprisonment, many of these "third strikers" will eventually
be paroled. Under the tiered parole scheme in this bill, it
appears as though these individuals would fall in to Tier 3
where parolees not otherwise classified are placed. The
significance of the tiers is unclear, however, third-strike
parolees would seem to require as high a classification, if
not higher, as those parolees with two strikes.
5)Unclear What the Significance of the Five Tiers is : This bill
proposes the creation of five tiers of parole, but it is
unclear what the significance of these tiers of parole have,
if any. It is possible that these tiers are supposed to
indicate the priority of supervision of parolees, but the
proposed section does not indicate how supervision resources
should be allocated. Absent further clarification from the
author, this classification scheme does not appear to serve a
purpose.
6)Related Legislation : SBx3 18 (Ducheny), Chapter 28, Statutes
of 2009, created nonrevocable parole for specified nonviolent
offenders.
REGISTERED SUPPORT / OPPOSITION :
AB 2391
Page 8
Support
None
Opposition
None
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744