BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 185 (Benoit)
As Amended April 20, 2009
Hearing date: April 28, 2009
Penal Code
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FELONY ENHANCEMENTS
CRIMES COMMITTED WHILE A DEFENDANT IS RELEASED FROM JAIL
HISTORY
Source: Riverside County District Attorney
Prior Legislation: AB 1693 (Sweeney) - Ch. 119, Stats. 1998
Support: Unknown
Opposition:California Public Defenders Association; California
Attorneys for Criminal Justice
KEY ISSUE
EXISTING LAW PROVIDES THAT WHERE A DEFENDANT COMMITTED A FELONY AT
THE TIME HE OR SHE WAS FREE ON BAIL OR HIS OR HER OWN RECOGNIZANCE
IN A PENDING MATTER, A TWO-YEAR ENHANCEMENT SHALL BE ADDED TO THE
DEFENDANT'S SENTENCE, AS SPECIFIED.
SHOULD THIS ENHANCEMENT ALSO BE IMPOSED WHERE THE DEFENDANT
COMMITTED A NEW CRIME PRIOR TO SENTENCING AND WHILE ON RELEASE FROM
CUSTODY, BUT THE PERSON WAS NOT RELEASED ON BAIL OR HIS OR HER OWN
RECOGNIZANCE?
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PURPOSE
The purpose of this bill is to provide that a defendant shall
receive a two-year sentence enhancement if he or she committed a
felony while on release from custody in a prior matter, and the
release was other than through bail or own recognizance.
Existing law provides that prior to judgment becoming final, a
defendant who commits a felony offense while out of custody on
bail or on his or her own recognizance shall receive a two-year
sentence enhancement. (Pen, Code 12022.1, subd. (a).)
Existing law also applies the two-year enhancement when a
defendant is sentenced to custody on a felony offense but is
allowed to temporarily remain out of custody before his or her
sentence begins, and the defendant commits a new felony during
this period. (Pen. Code 12022.1, subd. (a)(1).)
This bill provides that the enhancement for committing a new
felony offense while released from custody on another offense
shall apply where the defendant is neither on bail nor on own
recognizance release and the defendant has not been sentenced.
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.
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
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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.
. . .
Although the evidence may be less than perfectly
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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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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 appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for this Bill
Due to inmate law suits, twenty California counties
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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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have to comply with maximum population capacity
limits enforced by federal court order. Because of
these court-ordered capacity limits, sheriffs and
other jail administrators have no choice but to
release sentenced prisoners early on a regular basis
in all of these counties. These released defendants
are commonly described as being "Fed-kicked."
Another twelve counties have instituted self-imposed
jail population capacity limits to avoid costly
litigation.
The number of "Fed-kicks" is staggering:
statewide in 2007, 103,859 pre-sentenced arrestees
were released, averaging 8,655 per month. In
2008, Riverside County alone released 3,510
individuals because of this population cap. Of
these individuals, 904 of them committed a new
crime while on a "Fed-kick."
Senate Bill 185 would allow "Fed-kicked" inmates
to be eligible for a two-year enhancement if
arrested and found guilty of a secondary felony
offense.
Currently, if a defendant, who has been released
under the "Fed-kicked" program, is arrested for a
secondary offense that they committed while they
were released from custody, the defendant does not
qualify for the penalty enhancements of an
additional two years, under California Penal Code
Section 12022.1. SB 185 would remedy this problem
by mandating that these individuals receive a
two-year penalty enhancement on their new
sentence.
2. Enhancement Section for Defendants Released Pending Trial
Penal Code Section 12022.1 essentially prescribes a two-year
sentence enhancement if the defendant commits a new felony while
on release on bail or his or her own recognizance ("OR") in a
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pending felony prosecution. The enhancement is usually added to
the sentence for the crime the defendant committed while on bail
or his or her own recognizance in the initial matter. Under the
terms of the statute, the offense for which the defendant was
released on bail is called the "primary" offense and the felony
the defendant committed while on bail or "OR" from the primary
offense is called the "secondary" offense.
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Penal Code Section 12022.1 does not cover cases where a
defendant was released from jail, but not through bail or an
"OR" release. This bill would cover circumstances where a
defendant is being held pending resolution of a felony charge
and is released from jail, but not on bail or an own
recognizance release. Typically, such releases are done to
satisfy a pending federal court order limiting population in a
jail. The state trial court does not review a request for
release in such cases; the sheriff alone determines which
inmates to release through a formula.
SB 185 would effectively provide that where a defendant pending
resolution of felony case "A" is released pursuant to a federal
jail population cap, and the defendant commits felony "B" while
on release, a two-year sentence enhancement will be added to the
prison sentence for felony "B." However, where the defendant is
convicted of felony "B" before he or she is convicted of felony
"A," the enhancement will be stayed and then imposed in the
sentence for felony "A."
As noted above, where a defendant is released on bail or on his
or her own recognizance, a court has made some determination
that the person should be released. Further, a defendant
released on bail or under "OR" has sought his or her release.
Arguably, such a defendant has violated a contract or agreement
with the court by committing the new offense. That is, in such
a case the defendant has sought his or her release. That is not
true for a defendant released from jail pursuant to a federal
population cap. If this bill is enacted, perhaps sheriffs
should be directed to inform the defendant that he or she faces
an enhancement if he or she commits a new felony while released
pending resolution of the initial case.
DOES A DEFENDANT WHO COMMITS A NEW CRIME WHILE RELEASED ON BAIL
OR HIS OR HER OWN RECOGNIZANCE VIOLATE AN AGREEMENT OR CONDITION
OF RELEASE, SUCH THAT A SENTENCE ENHANCEMENT SHOULD BE IMPOSED
IN THE CASE BASED ON THE NEW CRIME?
IS A DEFENDANT WHO HAS BEEN RELEASED FROM JAIL BECAUSE OF A
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FEDERAL POPULATION CAP, NOT PURSUANT TO AN AGREEMENT WITH THE
COURT OR THROUGH BAIL SET BY THE COURT, IN A FUNDAMENTALLY
DIFFERENT POSITION THAN A PERSON RELEASED ON BAIL OR HIS OR HER
OWN RECOGNIZANCE?
SHOULD A DEFENDANT RELEASED FROM JAIL PURSUANT TO A FEDERAL JAIL
POPULATION CAP RECEIVE A TWO-YEAR SENTENCE ENHANCEMENT IN THE
ORIGINAL CASE IF HE OR SHE COMMITS A NEW CRIME AFTER BEING
RELEASED BECAUSE OF THE POPULATION CAP?
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