BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 440 (Denham)
As Amended April 2, 2009
Hearing date: January 12, 2010
Penal Code
SM:mc
VOTE ONLY
SENTENCING: SERIOUS AND VIOLENT FELONIES
HISTORY
Source: Crime Victims Action Alliance
Prior Legislation: AB 426 (Galgiani) - 2007, failed passage in
Senate Public Safety
AB 1256 (Bermudez) - 2006, failed passage in Senate
Public Safety
Support: Crime Victims United of California
Opposition: American
Civil Liberties Union (ACLU); Friends Committee on Legislation
of California; California Attorneys for Criminal Justice;
Taxpayers for Improving Public
Safety
KEY ISSUE
SHOULD SPECIFIED OFFENSES BE ADDED TO THE "SERIOUS" AND "VIOLENT"
FELONY LISTS?
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PURPOSE
The purpose of this bill is to (1) add the crimes of child abuse
likely to produce great bodily injury or death, physical child
abuse, killing, mutilating, or torturing a domestic animal,
elder abuse for which the defendant was incarcerated in state
prison, and escape or attempted escape by force or violence to
the lists of "serious felonies" as well as to the list of
"violent felonies," as specified; and (2) add the crimes of
human trafficking, stalking, solicitation to commit murder,
fleeing or attempting to elude a pursuing peace officer, willful
flight or attempting to elude a pursuing peace officer, and
felon in possession of a firearm, to the list of "serious
felonies," as specified.
Existing law provides that a defendant, who is convicted of any
current felony, with prior convictions of two or more "violent"
or "serious" felonies, must receive a life sentence with a
minimum term of 25 years. (Pen. Code 667, subds. (a) and
(d)(2)(i); Pen. Code 1170.12, subd. (c)(2)(A).)<1>
Existing law further provides that where a defendant is
convicted of any felony with a prior conviction for a single
serious or violent felony, the sentence imposed must be twice
the term otherwise provided as punishment. (Pen. Code 667,
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<1> The minimum term for any defendant with two prior serious
or violent offenses must be at least 25 years. In many cases,
multiple terms of 25-years-to-life must be imposed - one for
each count (separately charged offense) which does not arise
from the same operative facts in the current case. Where
multiple convictions do arise from separate operative facts,
the court has discretion to impose consecutive or concurrent
terms. (Penal Code 667(c)(6).) According to a complex
formula, in a rare case, a different minimum term may be
imposed if it would result in a longer sentence than 25 years.
(Penal Code 667(d)(2)(A)(i-iii).)
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subd. (d)(1); Pen. Code 1170.12, subd. (c)(1).)
Existing law further provides that affected defendants may not
receive probation. There is no limitation on the aggregate
term, sentencing credits are limited to 20 percent of the term
(instead of the usual 50 percent), and any additional
convictions must be imposed consecutively. (Pen. Code 667,
subd. (c); Pen. Code 1170.12, subd. (a).)
Existing law provides that a person convicted of a violent
felony may reduce his or her prison sentence by no more than 15
percent through work and education sentence credits. (Pen. Code
2933.1.)
Existing law provides that a defendant sentenced to a life term
under Three Strikes can earn no sentencing credits to reduce the
minimum term. (In re Cervera (2001) 24 Cal.4th 1073.)
Existing Three Strikes law , unlike five-year serious felony
enhancement provisions, does not require that prior qualifying
convictions arise in separate cases, and qualifying prior
"strike" convictions need not arise from separate transactions
that can otherwise not be separately punished. (People v.
Fuhrman (1997) 16 Cal.4th 830; People v. Benson (1998) 18
Cal.4th 24, 30; Penal Code 667(a).)
Existing law provides that a juvenile adjudication (no jury
trial) of a sixteen-year old must be counted as a prior "strike"
if the offense otherwise qualifies as an adult strike or would
establish presumptive unfitness for juvenile court under Welfare
and Institutions Code Section 707(b), and the minor was declared
to be a ward of juvenile court for commission of an offense
listed in
Welfare and Institutions Code Section 707, subdivision (b).
(Pen. Code 667, subd. (d)(3); Pen. Code 1170.12, subd.
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(b)(3).)<2>
Existing law includes the following additional mandatory "Three
Strikes" provisions:
A person sentenced under "Three Strikes" may not be committed
to any facility other than prison.
"Three Strikes" prohibits plea-bargaining.
"Three Strikes" has no "washout" period - any prior serious or
violent felony shall be charged regardless of when it
occurred. However, Proposition 36 of the November 2000
election creates washout for defendants charged with
non-violent drug possession who have been free of crime or
custody for 5 years.
Under "Three Strikes," the prosecuting attorney must plead and
prove each prior felony conviction.
"Three Strikes" may only be amended by a two-thirds vote of
the Legislature or a ballot measure approved by the
electorate.
Existing law provides that where a defendant has been charged
with a serious felony, plea bargaining is prohibited unless the
prosecutor informs the court that there may be insufficient
evidence to prove the charge, or the plea agreement would not
result in a substantial change in sentence. (Pen. Code
1192.7.)
Existing law includes numerous provisions that restrict or limit
the ability of persons convicted of serious or violent felonies
to receive specified benefits or to be employed in certain
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<2> There is substantial overlap among the lists of violent
felonies, serious felonies and crimes of presumptive juvenile
unfitness. However, a few crimes, such as residential burglary
do not constitute unfitness crimes. It must be noted that the
California Court of Appeal, 6th Appellate District has recently
held that a contested juvenile matter (tried to a judge) cannot
constitute a prior strike because the facts of the matter were
not found by a jury, thus violating the 6th Amendment to the
U.S. Constitution. (People v. Nguyen H028798.) This case will
very likely be reviewed by the California Supreme Court.
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capacities. Numerous other consequences flow from serious or
violent felony convictions.
This bill would add the following crimes to the list of "serious
felonies" described above:
human trafficking;
stalking;
solicitation to commit murder;
fleeing or attempting to elude a pursuing peace officer;
willful flight or attempting to elude a pursuing peace
officer; and
felon in possession of a firearm.
This bill would add the following crimes to both the list of
"serious felonies" and the list of "violent felonies" described
above:
child abuse likely to produce great bodily injury or
death;
physical child abuse;
killing, mutilating, or torturing a domestic animal;
elder abuse for which the defendant was incarcerated in
state prison; and
escape or attempted escape by force or violence.
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.<3>
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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<3> "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.<4>
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
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<4> 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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According to the author:
Many crimes that can be considered serious and/or
violent are not included in the serious or violent sections
of the Penal Code.
The governor has mentioned early release of inmates who
are not designated as serious or violent[.] [F]elonies
such as killing a child, killing or torturing an animal,
elder abuse and violent escape are certainly violent.
Similarly, felonies such as human trafficking, killing a
child, killing and torturing an animal, solicitation to
commit murder, willfully eluding a police officer, escape
by violence, or a felon in possession of a firearm are
serious and should be reflected as such in the Penal Code.
Adding these felonies to the serious and/or violent
sections of the Penal Code ensures that those who commit
the most egregious crimes are held appropriately
accountable for their actions - most notably through closer
parole supervision.
When determining prison and parole policies, the
definitions of serious and violent are often used as a way
to rate the most dangerous inmates, or those who might be
at most risk to re-offend.
Increasing parole supervision deters further crime,
lowers recidivism rates and in turn increases public
safety.
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2. Costs of Adding Offenses to the List of Serious and Violent
Offenses
Adding an offense to the list of crimes already specified as
"serious" or "violent" will create substantially longer prison
sentences for some offenders as a result of sentencing under the
Three Strikes law and several other statutes, as enumerated
above. Proposition 21, enacted by initiative in 2000,
significantly increased the number of offenses included on the
serious or violent felony list. The Secretary of State in its
March 2000 Voter Pamphlet stated that the fiscal cost of adding
several offenses to the list of serious or violent felonies was
an annual cost of $300 million. The California Department of
Corrections and Rehabilitation placed the annual cost of a
non-elderly inmate in California at about $43,000. (2007-2008
Budget Act, page CR6.)
3. Violent and Serious Felonies Defined
As originally enacted in 1994, the Three Strikes law defined
qualifying prior offenses as those felonies listed as "serious" or
"violent" on June 30, 1993. (As noted above, a defendant with a
single qualifying prior offense receives a doubled term and, with
two prior qualifying offenses, receives a life sentence upon
conviction of any new felony.) Proposition 21 of the March 2000
primary election added to the lists of serious and violent
felonies and defined qualifying prior strikes as felony listed as
serious or violent felonies as of March 8, 2000 - the date that
the Proposition 21 took effect. For all practical purposes, all
"violent" felonies are "serious." Thus the eligible "strikes" are
aptly demonstrated by the serious felony list, with additional
notations for violent offenses. Serious and violent felonies, as
defined by Penal Code Section 667.5(b) and Section 1192.7, as they
existed after March 8, 2000, include the following completed
crimes and attempts:
Murder or voluntary manslaughter (violent).
Mayhem (serious, and violent if by force or threat of
retaliation).
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Rape (violent).
Sodomy by force, violence, duress, menace, or fear of
bodily injury (violent).
Oral copulation by force, violence, duress, menace, or
fear of bodily injury (violent).
Lewd act with child under fourteen years of age
(violent) and continuous sexual abuse of a child (violent).
Any felony punishable by death or life imprisonment
(violent).
Any felony in which defendant inflicts great bodily
injury or personally uses a firearm (violent).
Attempted murder (violent).
Assault with intent to commit a sex crime, robbery, or
mayhem (violent).
Assault with a deadly weapon on peace officer (serious).
Assault by life prisoner on a non-inmate (serious).
Assault with a deadly weapon by inmate (serious).
Arson (serious, and violent if structure was inhabited).
Exploding a destructive device with intent to injure
(serious).
Explosion causing great bodily injury or mayhem
(violent).
Explosion with intent to murder (violent).
Burglary of inhabited dwelling (serious, and violent if
another person other than an accomplice is present).
Robbery, bank robbery, or carjacking (violent).
Kidnapping (violent).
Inmate taking a hostage.
Attempted crime carrying a life sentence or death
penalty.
Any felony where defendant personally uses a dangerous
or deadly weapon.
Sale or furnishing heroin, cocaine, PCP, or
methamphetamine to a minor.
Forcible foreign object rape (violent in most cases).
Grand theft involving a firearm.
Any violation of 10-20-life firearm use and discharge
enhancement law (violent).
Any gang-related felony (violent if crime involves
extortion or witness intimidation).
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Maliciously throwing acid or flammable substances.
Witness intimidation.
Credible threats to kill or cause great bodily injury.
Discharge of a firearm at an inhabited dwelling,
vehicle, or aircraft.
Drive-by shooting.
Any conspiracy to commit a serious felony.
4. Redundancies in the Bill
Several of the crimes listed in this bill would already qualify as
"serious or violent felonies." Because the lists of "serious" and
"violent" felonies already includes any felony in which the
defendant inflicts great bodily injury on anyone other than an
accomplice (Penal Code 667.5(c)(8); 1192.7(c)(8)), several of
the crimes listed in this bill would already be treated as
"serious" or "violent" felonies if they resulted in serious
injury.
SHOULD THESE OFFENSES BE ADDED TO THE "SERIOUS" AND "VIOLENT"
FELONY LISTS?
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