BILL ANALYSIS �
AB 161
Page 1
Date of Hearing: March 15, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 161 (Eng) - As Introduced: January 19, 2011
SUMMARY : Subjects a juvenile who has a sustained petition in a
juvenile adjudication to specified prohibitions from entering,
or refusing to leave, property where an underlying prior offense
occurred when the owner notifies the juvenile through law
enforcement. Specifically, this bill :
1)Makes it a misdemeanor for any person who has a sustained
juvenile petition, based on conduct at a particular property,
to enter upon or refuse to leave the property after having
been informed that he or she may not enter the property by a
peace officer acting at the request of the owner.
2)Specifies that when the underlying offense is a violent
felony, the juvenile may not return to the property
perpetually from the date of adjudication.
3)Specifies that when the underlying offense is a felony, the
juvenile may not return to the property five years from the
date of adjudication.
4)Specifies that when the underlying offense is a misdemeanor,
the juvenile may not return to the property two years from the
date of adjudication.
5)Specifies that when the underlying offense is a petty theft of
less than $50 as an infraction, the juvenile may not return to
the property for a year from the date of the adjudication.
EXISTING LAW :
1)Provides that a person is guilty of misdemeanor trespass when
they enter upon private property, including contiguous land,
real property, or structures thereon belonging to the same
owner, whether or not generally open to the public, after
having been informed by a peace officer at the request of the
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owner, the owner's agent, or the person in lawful possession,
and upon being informed by the peace officer that he or she is
acting at the request of the owner, the owner's agent, or the
person in lawful possession, that the property is not open to
the particular person; or refusing or failing to leave the
property upon being asked to leave the property in the manner
specified. �Penal Code Section 602(t)(1).]
a) Provides that this section shall apply only to a person
who has been convicted of a crime committed upon the
particular private property. �Penal Code Section
602(t)(2).]
b) States that a single notification or request to the
person as set forth above shall be valid and enforceable
unless and until rescinded by the owner, the owner's agent,
or the person in lawful possession of the property. �Penal
Code Section 602(t)(3).]
2)Specifies that where the person has been convicted of a
violent felony, as described in the ban from re-entering the
property shall apply without time limitation. Where the
person has been convicted of any other felony, the ban from
re-entering the property shall apply for no more than five
years from the date of conviction. Where the person has been
convicted of a misdemeanor, the ban from re-entering the
property shall apply for no more than two years from the date
of conviction. Where the person was convicted for an
infraction, the ban from re-entering the property shall apply
for no more than one year from the date of conviction. The
ban from re-entering the property shall not apply to
convictions for any other infraction.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "�l]ast year AB
668 inadvertently left juvenile offenders out of the policy to
prevent a person convicted of a crime on private property from
being able to return to that property. This bill will add to
the law the appropriate language to include juvenile offenders
into those provisions. This will help businesses and other
private property owners maintain safety and security and
provide law enforcement with a means of addressing the
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significant problem of repeat theft offending so that they can
better serve their communities."
2)Juveniles are not Afforded the Same Constitutional
Protections : Juvenile proceedings are considered civil rather
than criminal proceedings, and, therefore, juveniles are not
granted the same constitutional protections afforded those
charged with crimes as adults. Juveniles are not found
"guilty" and do not suffer "convictions" within the meaning of
criminal laws. �Welfare and Institutions Code (WIC) Section
203, People v. Weidert (1985) 39 Cal3d 836, 846.]
The dispositions in juvenile court are generally less severe
than those available in adult court. (WIC Section 1769.)
Furthermore, juveniles are able to petition to have their
records sealed unless they were found to have committed
certain serious offenses. (WIC Sections 781 and 1772.)
Because juveniles are not afforded as many constitutional
protections as afforded adult offenders, the expansion of
existing criminal provisions to minors should be considered
carefully. For instance, juveniles are not granted jury
trials and are subject to judicial findings on the
adjudication of their cases. As a result, the Committee
should consider carefully whether or not these provisions are
appropriate to expand to juveniles.
3)Jurisdiction Questions : Juvenile courts have original
jurisdiction over offenses committed while a person is under
the age of 18 even though the person is 18 or older when
charged if that person is subject to an arrest warrant at the
time. �WIC Section 607(e).] A juvenile becomes an adult on
the day or his or her 18th birthday. �Johnson v. Superior
Court (1989) 208 CalApp3d 1093.] This bill applies up to a
lifetime ban on re-entering private property upon juveniles.
The maximum age a juvenile may be sent to the Department of
Juvenile Justice is 25 years of age. The provisions imposed
by this bill are unprecedented. This bill may apply only
until the minor reaches the age of majority at 18 years of age
or perhaps arguably up to the age of 25. However, the
provisions that state that a minor is subject to a lifetime
ban are unenforceable.
4)Existing Protections : Under existing law, a court may order
an injunction at the request of a prosecutor that prevent a
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minor from returning to private property while the minor is on
juvenile probation. Sustained petitions for misdemeanors and
felonies almost always carry a minimum of one year probation
for a misdemeanor and often three to five years of probation
for felonies. Courts routinely impose a condition that the
minor stay away from the place where the incident occurred
without the owner's permission. Incidents that this bill try
and cover may be handled in a more efficient and cost
effective manner, by simply violating a minor's probation.
5)Inclusion of an Infraction : Under this bill, a minor cited
for the infraction of petty theft of less than $50 is subject
to, at the will of the property owner, a one-year ban from
private property. If the minor returns to the property and
does not engage in any other illegal activity, that minor
would then be guilty of misdemeanor trespassing simply on the
basis of his or her presence on the private property.
6)Argument in Support : According to the Los Angeles County
Sheriff's Department , "�u]nder current law, in Penal Code
Section 602(t), if an adult is convicted of a crime that is
committed on private property, the owner or person who has a
legal right to the property can request the adult offender not
return to the property. A specified timeframe has been
established for felony, misdemeanor, and specified
infractions.
"Under current law, a conviction applies only to an adult. This
bill would add a sustained petition for a juvenile
adjudication for a crime. With this addition, a property
owner could also request that a juvenile who receives a
sustained petition for the adjudication of a crime may not
return to the location for the prescribed period of time
depending on the category of crime.
"Many times, offenders return to the location of their previous
crime(s) to commit further crimes. Offenders who commit these
crimes will often return to the same businesses where they
committed previous crimes to re-offend. Some other offenders
may repeatedly loiter at a food or retail establishment and
engage in fighting and drug activity to name just a few.
These are ongoing problems that affect the quality of life for
proprietors and customers of these businesses."
7)Argument in Opposition: According to the Youth Law Center ,
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"�w]e oppose A.B. 161 because it is overly broad, and there
are less intrusive ways to achieve its goals. A.B. 161 would
make it a crime to re-enter private property for two to five
years if the young person previously committed any crime on
the property. For example, a child who stole a CD, or was
found in possession of a beer or cigarettes at a shopping mall
could be prosecuted for going to the shopping mall within two
years.
"Under our state of federal constitutions, restrictions on the
right to travel must be narrowly drawn. If they occur at all,
the proper way to impose them is as a probation condition
flowing from the original offense. Even then, the condition
must not proscribe conduct that is not itself criminal, does
not relate to the original offense, and is not related to
future criminality. (See, In re Daniel R. (2006) 144
Cal.App.4th 1; In re James C. (2008) 165 Cal.App.4th 1198.)
"A.B. 161 goes much further than would be permitted is the court
imposed a probation condition related to travel, and there is
no showing of need to justify giving so much discretion to law
enforcement. This does not tie the hands of law enforcement.
If children commit a new crime or are loitering or otherwise
engaged in unlawful behavior, they can be prosecuted for those
offenses.
"Further, we oppose the addition of yet another offense to the
state's law books. If gives the impression that something is
actually being done about juvenile crime, when the actuality
is otherwise. In fact, all that would happen as a result of
this bill is that poor families would be forced to pay fines
and miss work to attend court hearings, and that youth who did
not even commit a new offense (other than entrance into the
property) could be subjected to incarceration with youth
accused of much more serious offenses. This is not a good
public policy result.
"And finally, the bill's language is vague with respect to what
kinds of private property are covered. As such, it fails to
give proper notice to people who might be prosecuted, and may
be subject to legal challenges."
8)Prior Legislation : AB 668 (Lieu), Chapter 531, Statutes of
2010, expanded the crime of trespass to include persons who,
after having been convicted of a crime on a particular
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property, go onto that property again over the objections of
the owner.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
Los Angeles County Sheriff
Opposition
California Public Defenders Association
Commonwealth Juvenile Justice Program
Pacific Juvenile Defender Center
Youth Law Center
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744