BILL ANALYSIS �
AB 2016
Page 1
Date of Hearing: April 17, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2016 (Gorell) - As Amended: April 12, 2012
SUMMARY : Prohibits a person from willfully removing or
disabling an electronic, global positioning system (GPS) or
other monitoring device affixed to his or her person or the
person of another, knowing that the device was affixed as a
condition of a criminal sentence, juvenile court disposition,
parole, or probation. Specifically, this bill :
1)Provides that a person subject to an electronic, GPS, or other
monitoring device based on a misdemeanor conviction or a
juvenile adjudication for a misdemeanor offense, who willfully
removes or disables that device is guilty of a misdemeanor,
punishable by imprisonment in a county jail for up to one
year, by a fine of up to $1,000, or both that fine and
imprisonment.
2)Provides that a person who willfully removes or disables an
electronic, GPS, or other monitoring device affixed to another
person where that device was affixed to the other person based
upon a misdemeanor conviction, or based upon a juvenile
adjudication for a misdemeanor offense, is guilty of a
misdemeanor, punishable by imprisonment in a county jail for
up to one year, by a fine of up to one thousand dollars
$1,000, or both that fine and imprisonment, except as
specified.
3)States that a person subject to an electronic, GPS, or other
monitoring device based on a felony conviction, juvenile
adjudication for a felony offense, or terms of parole for a
felony offense, who willfully removes or disables that device
is guilty of a felony, punishable by imprisonment in the state
prison for 16 months, two years, or three years.
4)States that a person who willfully removes or disables an
electronic, GPS, or other monitoring device affixed to another
person where that device was affixed to the other person based
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on a felony conviction or a juvenile conviction for a felony
offense is guilty of a felony, punishable by imprisonment in
the state prison for 16 months or three years, except as
specified.
5)Provides that nothing in this bill shall be construed to
prevent punishment pursuant to any other provision of law that
imposes a greater or more severe punishment.
6)Clarifies that this bill shall not apply to the removal or
disabling of an electronic, GPS, or other monitoring device by
a physician, emergency medical services technician, or by any
other emergency response or medical personnel when doing so is
necessary during the course of medical treatment of the person
subject to the electronic, GPS, or other monitoring device.
7)Clarifies that this bill shall not apply where the removal or
disabling of the electronic, GPS, or other monitoring device
is authorized or required by a court of law, or by the law
enforcement, probation, parole authority, or other entity
responsible for placing the electronic, GPS, or other
monitoring device upon the person, or that has, at the time,
the authority and responsibility to monitor the electronic,
GPS, or other monitoring device.
8)Provides that this bill shall become operative only if SB 968
(Wright), of the 2011-12 Regular Session, is enacted and takes
effect on or before January 1, 2013
EXISTING LAW :
1)Authorizes a county probation department to utilize continuous
electronic monitoring to electronically monitor the
whereabouts of persons on probation. �Penal Code Section
1210.7(a).]
2)Defines "continuous electronic monitoring" to include the use
of worldwide radio navigation system technology, known as GPS.
The Legislature finds that because of its capability for
continuous surveillance, continuous electronic monitoring has
been used in other parts of the country to monitor persons on
parole who are identified as requiring a high level of
supervision. �Penal Code Sections 1210.7(d) and 3010(d)(1).]
3)Authorizes the parole authority to require, as a condition of
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release on parole or reinstatement on parole, or as an
intermediate sanction in lieu of return to prison, that an
inmate or parolee agree in writing to the use of electronic
monitoring or supervising devices for the purpose of helping
to verify his or her compliance with all other conditions of
parole. The devices shall not be used to eavesdrop or record
any conversation, except a conversation between the parolee
and the agent supervising the parolee which is to be used
solely for the purposes of voice identification. �Penal Code
Section 3004(a).]
4)Requires every inmate who has been convicted for any felony
violation of a "registerable sex offense" as specified, or any
attempt to commit one of these offense and who is committed to
prison and released on parole shall be monitored by GPS for
life. �Penal Code Section 3004(b).]
5)Allows the board of supervisors of any county to authorize the
sheriff, probation officer, or director of the county
department of corrections to offer a program under which
inmates committed to a county jail or other county
correctional facility or granted probation, or inmates
participating in a work furlough program, may voluntarily
participate or involuntarily be placed in a home detention
program during their sentence in lieu of confinement in the
county jail or other county correctional facility or program
under the auspices of the probation officer. �Penal Code
Section 1203.016(a).]
6)States that upon determination by the sheriff, probation
officer, or director of the county department of corrections
that conditions in a jail facility warrant the necessity of
releasing sentenced misdemeanor inmates prior to them serving
the full amount of a given sentence due to lack of jail space,
the board of supervisors of any county may authorize the
correctional administrator to offer a program under which
inmates committed to a county jail or other county
correctional facility or granted probation, or inmates
participating in a work furlough program, may be required to
participate in an involuntary home detention program, which
shall include electronic monitoring, during their sentence in
lieu of confinement in the county jail or other county
correctional facility or program under the auspices of the
probation officer. �Penal Code Section 1203.017(a).]
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7)Allows the board of supervisors of any county to authorize the
sheriff, probation officer, or director of the county
department of corrections to offer a program under which
inmates being held in lieu of bail in a county jail or other
county correctional facility may participate in an electronic
monitoring program if the following conditions are met:
a) The inmate must have no holds or outstanding warrants;
b) The inmate has been held in custody for at least 30
calendar days from the date of arraignment pending
disposition of only misdemeanor charges; and
c) The inmate has been held in custody pending disposition
of charges for at least 60 calendar days from the date of
arraignment. �Penal Code Sections 1203.018(b) and (c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Due to growing
concerns about the pressure on local jail populations due to
California's public-safety realignment law, the Legislature is
seeking ways to not only provide adequate funding for local
entities, but to also provide the flexibility and tools needed
for local authorities to adequately manage their jail
populations in a manner that is safe and expedient. Senator
Rod Wright's bill, SB 968, does precisely that. As local
authorities rely more on electronic monitoring programs as a
means of jail population management, the growing population of
electronically monitored parolees should warrant more
attention and concern about the lack of penalties in state law
for individuals who willfully tamper with or break their
electronic monitoring device, which was affixed as a condition
of their probation. Currently, tampering with or removing a
monitoring device is a violation of probation (maximum penalty
of 1 year in jail), which may not lead to any additional jail
time because many parolees have spent time in county jail
prior to going on parole. AB 2505 will provide local law
enforcement the ability to charge these parolees with a new
crime. This bill is also contingent upon the passage of SB
968 (Wright), which appropriately gives local authorities more
flexibility to expand the use of electronic monitoring in
order to manage their jail population."
AB 2016
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2)Background Information on GPS : GPS uses triangulation of
satellites orbiting the earth, similar to cellular phones.
Offenders wear ankle bracelets and carry with them packs
containing mobile receivers. When offenders are sleeping or
sitting, packs can be placed near them. A monitoring station
receives data from all offenders using the system and tracks
them. Tracking may be active or passive. Active GPS transmits
its location at near real-time intervals and can include
immediate alert notifications. Passive GPS transmits its
location at set intervals and alert notifications are usually
received the next day. �See (accessed on April
10, 2012).] If the offender tampers with the equipment, moves
more than about 150 feet from the receiver, deviates from a
schedule, or ventures into forbidden territory, overseers are
automatically paged. Not only does GPS follow offenders, GPS
can also be programmed with "exclusion zones" where sex
offenders are not allowed - for example, the home of a victim
or the victim's place of employment.
3)GPS Monitoring as a Condition of Probation or Parole : GPS
monitoring may be used as a condition of probation or parole
and is required for persons on parole for specified sex
offenses. �Penal Code Sections 1210.7 and 3004(b).] Under
existing law, "�w]henever a probation officer supervising an
individual has reasonable cause to believe that the individual
is not complying with the rules or conditions set forth for
the use of continuous electronic monitoring as a supervision
tool, the probation officer supervising the individual may,
without a warrant of arrest, take the individual into custody
for a violation of probation." (Penal Code Section 1210.14.).
If an offender on parole or probation removes or tampers with a
GPS device, he or she is in violation of parole or probation
and may be returned to custody and may be sentenced to serve
additional time for that violation. When a person has been
convicted of a felony or a misdemeanor, the person may not
serve more than one year in county jail as a condition of
probation. �Penal Code Section 19.2.] However, a defendant
may expressly waive his or her time custody credit in order to
be reinstated on probation conditioned on service of an
additional period of up to one year in county jail, without
running afoul of Section 19.2. �People v. Davila (2012) 2012
AB 2016
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Cal. App. Unpub. LEXIS 1409 at *11-*12, citing People v.
Johnson (1987) 82 Cal.App.3rd 183.]
4)Effect on Criminal Justice Realignment Act : Criminal justice
realignment created two classifications of felonies: those
punishable in county jail and those punishable in state
prison. Realignment limited which felons can be sent to state
prison, thus requiring that more felons serve their sentences
in county jails. The new law applies to qualified defendants
who commit qualifying offenses and who were sentenced on or
after October 1, 2011. Specifically, sentences to state
prison are now mainly limited to registered sex offenders and
individuals with a current or prior serious or violent
offense. In addition to the serious, violent, registerable
offenses eligible for state prison incarceration, there are
approximately 70 felonies which have be specifically excluded
from eligibility for local custody (i.e., the sentence for
which must be served in state prison).
This bill creates new felonies and does not provide for
sentencing under the realignment provisions of Penal Code
Section 1170(h). Under the provisions of this bill, the
sentence for these felony offenses must be served in state
prison. Thus, this bill creates a new exclusion for local
custody eligibility. As such, this bill conflicts with the
policy change created by realignment to shift the
responsibility for low-level adult offenders from the state to
the counties.
5)On-going Concerns for Prison Overcrowding : In November 2006,
plaintiffs in two ongoing class action lawsuits-Plata v. Brown
(involving inmate medical care) and Coleman v. Brown
(involving inmate mental health care)-filed motions for the
courts to convene a three-judge panel pursuant to the U.S.
Prison Litigation Reform Act. The plaintiffs argued that
persistent overcrowding in the state's prison system was
preventing the California Department of Corrections and
Rehabilitation (CDCR) from delivering constitutionally
adequate health care to inmates. The three-judge panel
declared that overcrowding in the state's prison system was
the primary reason that CDCR was unable to provide inmates
with constitutionally adequate health care. In January 2010,
the three-judge panel issued its final ruling ordering the
State of California to reduce its prison population by
approximately 50,000 inmates in the next two years.
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�Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK
JFM P/NO. C01-1351 THE.]
The United State Supreme Court upheld the decision of the
three-judge panel, declaring that "without a reduction in
overcrowding, there will be no efficacious remedy for the
unconstitutional care of the sick and mentally ill" inmates in
California's prisons. �Brown v. Plata (2011) 131 S.Ct. 1910,
1939; 179 L.Ed.2d 969, 999.]
According to a recent report by the Legislative Analyst's
Office, "Based on CDCR's current population projections, it
appears that it will eventually reach the court-imposed
population limit, though not by the June 2013 deadline." �See
Refocusing CDCR After the 2011 Realignment (Feb. 23, 2012)
pp.3
.
] "In particular, the projections show the state missing the
final population limit of no more than 110,000 inmates housed
in state prisons by June 2013. Specifically, the projections
show the state exceeding this limit by about 6,000 inmates.
However, the projections indicate that the state will meet the
court-imposed limit by the end of 2014." (Id. at p. 9.)
"While the state has undergone various changes to reduce
overcrowding prior to the passage of the realignment
legislation-including transferring inmates to out-of-state
contract facilities, construction of new facilities, and
various statutory changes to reduce the prison population-the
realignment of adult offenders is the most significant change
undertaken to reduce overcrowding." (Id. at p. 8.)
6)Arguments in Support : None submitted.
7)Arguments in Opposition :
a) According to the California Attorneys for Criminal
Justice , "The conduct at which this bill is aimed is
already criminal behavior under at least three different
Penal Code Sections; PC 487 (grand theft); PC 484 (petty
theft); and PC 594 (vandalism). In addition to these
specific statutes, the conduct described in AB 2016 would
constitute a violation of probation or parole depending
upon the wearer's status. As such, this conduct would
automatically trigger a violation which most likely would
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result in the wearer being either returned to prison or
county jail.
"There are, as demonstrated above, five different ways to
punish the behavior encompassed in AB 2016. CACJ can see
no valid reason for adding a sixth way. Enactment of AB
2016 would only serve to add to already crowded criminal
court calendars and thereby drive up court costs. It would
result in duplication of effort because of its repetitive
aspect. There is no reason to believe that it would deter
the very conduct that is already illegal and subject to the
punishments spelled out above."
b) According to American Civil Liberties Union , "The
criminal penalties contemplated by this bill are
unnecessary, expose more non-violent offenders tot eh
provisions of California's Three Strikes Law, and is
inconsistent with the Legislature's recent efforts to
reduce the overcrowding through passage of the criminal
realignment legislation. As it stands, unauthorized
removal of these devices may result in the revocation of
parole, probation, or terms of post-release community
supervision and subsequent incarceration."
8)Related Legislation :
a) SB 968 (Wright) authorizes a defendant arrested without
a warrant for a bailable offense and who meets certain
criteria to apply, after 10 court days from the date of
arraignment, for release on a reduced bail if the defendant
agrees to be placed in the electronic monitoring program,
and the magistrate and the correctional administrator
determine that the defendant is eligible to participate in
the program. SB 968 is pending hearing by the Senate
Committee on Public Safety.
b) AB 2467 (Hueso) authorizes a court to order GPS
monitoring of a defendant in a domestic violence or
stalking case who is granted probation or as a condition of
bail. AB 2467 will be heard by this Committee today.
c) AB 179 (Gorell) was substantially similar to this bill.
AB 179 failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support
California District Attorneys Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744