BILL ANALYSIS �
AB 2331
Page 1
Date of Hearing: April 17, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2331 (Miller) - As Amended: March 29, 2012
SUMMARY : Adds rape of an unconscious or intoxicated person to
the list of crimes which limit the accrual of presentence
conduct credits and post-sentence worktime credits to 15%.
EXISTING LAW :
1)Allows a defendant to receive presentence conduct credit for
the time spent in custody between the date of arrest and the
date of sentencing, as specified. �Penal Code Section 4019.]
2)Gives the California Department of Corrections and
Rehabilitation (CDCR) the authority to reduce a prison
commitment by one-third for good behavior and participation in
specified activities. Total possible good behavior and
participation credit shall result in a four-month reduction
for each eight months served in prison or in a reduction based
on this ration for any lesser period of time. �Penal Code
Section 2931.]
3)States that for every six months of continuous incarceration
in state prison, a prisoner shall be awarded work time credit
reduction from his or her term of confinement of six months.
A lesser amount of credit based on this ratio shall be awarded
for any lesser period of continuous incarceration. �Penal
Code Section 2933(b).]
4)Allows a prisoner to earn up to six weeks of program credit
reductions during a 12-month period of continuous confinement.
�Penal Code Section 2933.05(a).]
5)Limits the credits of any person convicted of a violent felony
listed in Penal Code Section 667.5(c) to 15%. This credit
limitation applies to both presentence conduct credits and
postsentence worktime credits. �Penal Code Section 2933.1]
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6)Limits the credits of a person sentenced under the Three
Strikes law to 20%. �Penal Code Sections 667(c)(5) and
1170.12(a)(5).]
7)Gives inmates assigned to a conservation camp enhanced
credits, notwithstanding any other law. �Penal Code Section
2933.3]
8)Provides that any time credit accumulated pursuant to Penal
Code Sections 2931 or 2933 may be denied or lost under certain
circumstances. �Penal Code Section 2932(a)(1).]
9)States that, notwithstanding any other law, every person
convicted of specified crimes, and who has previously been
convicted of those specified crimes two or more times on
charges separately brought and tried, and who previously has
served two or more prior prison terms for such offenses shall
be ineligible to earn credit. �Penal Code Section 2933.5]
10)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
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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).]
11)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 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; using a firearm in the commission of a
crime; possession of weapons of mass destruction and any
conspiracy to commit any of these offenses. �Penal Code
Section 1192.7(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Violent
offenders should not receive additional benefits because they
perpetrate their crime against the most vulnerable victims
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such as those mentally handicapped, intoxicated or
unconscious. The intent of AB 2331 is to amend the penal code
to eliminate the loophole to ensure that all convicted rapists
are sentenced as violent felons and serve no less than 85% of
their time."
2)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 argue 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.
�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.)
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"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.) Because
the provisions of this bill further limit the credits for
sentences which are required to be served in state prison, it
appears to aggravate the on-going problem of prison
overcrowding.
3)Custody Credits as an Incentive : Although most inmates are
eligible for custody credits, CDCR has the discretion to deny
those custody credits for violations of law and administrative
regulations. (Penal Code Section 2933.) If there are no
credits to deny, CDCR may lose a powerful method of obtaining
good behavior among prisoners, putting both prison staff and
inmates at risk. A defendant sentenced to a term of eight
years for the rape of an intoxicated or unconscious person
�see Penal Code Section 264(a)] would serve all but 14 months
of that sentence under the provisions of this bill.
4)Legislative Distinctions between Forms of Rape : All forms of
rape have been deemed to be serious felonies under Penal Code
Section 1192.7; however, the rape of an unconscious or
intoxicated person has not been deemed a violent felony under
Penal Code Section 667.5. Only rape accomplished by means of
force, violence, duress, menace, or threats of retaliation has
been deemed to be a violent felony.
The Legislature has also made this same distinction in the "One
Strike Sex Offense Law." That law states it applies to "rape
in violation of paragraph (2) or (6) of subdivision (a) of
Section 261," that is, rape accomplished by means of force,
violence, duress, menace, or threats of retaliation. �Penal
Code Section 667.61(c)(1).] Rape of an intoxicated or
unconscious person does not qualify as an offense subjecting
the defendant to the One Strike Sex Law provisions.
5)Argument in Support : None submitted.
6)Argument in Opposition : According to Legal Services for
Prisoners with Children (LSPC), "LSPC generally opposes the
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increase of any prison or jail sentence, and this bill is no
exception. Our prisons remain overcrowded. We are under a
federal court order to reduce our prison population. Our
state budget is shrinking. CDCR is under increasing pressure
to reduce its budget. Given these two powerful pressures, any
legislation which will increase prison population and cost
must be strictly scrutinized.
"This bill does not merit support. Conduct credits are an
important tool to help CDCR manage its incarcerated
population. It encourages prisoners to participate in work
activities and to remain free of rules violations. There is
no good reason to identify this particular subset of
California prisoners for reduced credit."
7)Prior Legislation :
a) AB 2054 (Miller), of the 2009-10, was identical to this
bill. AB 2054 was held on the Assembly Appropriations
Committee's Suspense File.
b) AB 221 (Bogh), of the 2005-06 Legislative Session,
stated that every person convicted of a sexually violent
felony, as specified, shall be ineligible to earn credits
on his or her term of imprisonment. AB 221 failed passage
in this Committee.
c) AB 300 (Simitian), of the 2001-02 Legislative Session,
proposed limiting custody credits to no more than 20% of
the actual time served for any person convicted under the
"Three-Strikes" law while in the county jail awaiting
trial. AB 300 was held on the Assembly Appropriations
Committee's Suspense File.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
Legal Services for Prisoners with Children
AB 2331
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Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744