BILL ANALYSIS �
AB 2486
Page 1
Date of Hearing: April 24, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2486 (Feuer) - As Amended: March 29, 2012
SUMMARY : Requires any new felony offense committed while
serving a felony sentence in county jail to be served as a
consecutive term to commence at the time the defendant would
have otherwise been released from jail for the original offense.
EXISTING LAW :
1)States that whenever a defendant is convicted of two or more
crimes in the same or different proceedings, the sentencing
court has the discretion to run terms concurrently or
consecutively, and if the court fails to specify, the term of
imprisonment on the second or subsequent judgment runs
concurrently to the first. (Penal Code Section 669.)
2)Provides that when a person is convicted of two or more
felonies, whether in the same proceeding or court or in
different proceedings or courts, and whether by judgment
rendered by the same or by a different court, and a
consecutive term is imposed, the aggregate term of
imprisonment for all these convictions shall be the sum of the
principal term, the subordinate term, and any applicable
enhancements for prior convictions, prior prison terms and
felonies committed while on bail or release on own
recognizance. �Penal Code Section 1170.1(a).]
3)Requires the principal term to consist of the greatest term of
imprisonment imposed by the court for any of the crimes,
including any term imposed for applicable specific
enhancements. �Penal Code Section 1170.1(a).]
4)Requires that the subordinate term for a substantive offense
for each consecutive offense shall consist of one-third of the
middle term of imprisonment prescribed for each other felony
conviction for which a consecutive term of imprisonment is
imposed, and shall include one-third of the term imposed for
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any specific enhancements applicable to those subordinate
offenses. �Penal Code Section 1170.1(a).]
5)States that for an enhancement with a triad of terms attaching
to a subordinate count, the court is not limited to the middle
term. It may impose 1/3 of any of the three terms for an
enhancement to a subordinate term. �Penal Code Section
1170.1(a).]
6)Requires in the case of any person convicted of one or more
felonies committed while the person is confined in a state
prison or is subject to reimprisonment for escape from custody
and the law either requires the terms to be served
consecutively or the court imposes consecutive terms, the term
of imprisonment for all the convictions that the person is
required to serve consecutively shall commence from the time
the person would otherwise have been released from prison.
�Penal Code Section 1170.1(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Existing law
requires a full consecutive term for felonies committed in
state prison rather than a subordinate consecutive limited to
one-third the mid-base term. The law is silent regarding
commitments in county jail. AB 2486 clarifies that a full
consecutive term for felonies committed by offenders sentenced
under Section 1170, subdivision (h) is required. Prior to
Realignment, offenders sentenced under Section 1170,
subdivision (h) were serving their sentences in state prison
and were therefore subject to the requirement that a
consecutive term be served for a felony committed in prison.
Now under Realignment the same group of offenders can commit
the same crime while incarcerated and end up with a much
shorter sentence.
"Nothing in AB 2486 changes where (county jail or state prison)
an offender would serve his or her sentence."
2)Background on Sentencing : If the defendant is convicted of
multiple crimes, the court must first decide whether the
proscription against multiple punishment (Penal Code Section
654) requires a stay of imposition of sentence on any count.
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For counts not subject to Penal Code Section 654, in most
instances, the judge has discretion to order that the terms be
served either concurrently or consecutively. �Penal Code
Sections 669 and 1170.1(a).] However, in some instances, the
Legislature has mandated consecutive terms. If the court
chooses consecutive sentences, the sentence for each
consecutive term is one-third the middle term plus one-third
the term specified for any specific conduct enhancement
applicable to that count.
A special provision applies when computing the term for felonies
committed by state prison inmates or escapees. The aggregate
term for the new offenses themselves, including consecutive
sentences, is calculated under Penal Code Section 1170.1(a).
Any consecutive term for the new offenses begins at the time
the prisoner would otherwise have been released from prison.
The sentence imposed under Penal Code Section 1170.1(c) is a
new term that begins to run after the earlier term. This
special provision applies whether the convictions arise out of
the same or different proceedings. �Penal Code Section
1170.1(c).]
Currently, Penal Code Section 1170.1(c) applies only to state
prisoners; it does not apply to inmates of county jails or
other local institutions. (See People v. Cota (1987) 191
Cal.App.3d 150, 154 �nonviolent escape from local facility
under Penal Code Section 4532(a) is subject to one-third
midterm rule of Penal Code Section 1170.1(a)]; People v.
Holdsworth (1988) 199 Cal.App.3d 253, 256 �Penal Code Section
1170.1(c) requires actual physical confinement in state
prison; statute does not apply to convicted felon confined in
county jail awaiting delivery to state prison].)
3)Removal of Judicial Discretion : Usually, a sentencing court
has discretion to run sentencing terms either consecutively or
concurrently when a defendant has committed two or more
felonies (Penal Code Section 669), with some specified
exceptions including the exception for felonies committed
while confined in state prison. Under existing law, the court
has the authority to sentence a person to a consecutive term
for committing a felony offense while confined in a county
jail, although the sentence would have to conform to the
sentencing calculation under Penal Code Section 1170.1(a)
requiring the subordinate term to be one-third the midterm.
This bill removes a court's authority to make this decision in
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its own discretion, and requires that the court must run terms
consecutively in all cases where a defendant has committed a
felony while serving a term for a felony conviction in the
county jail. When a court sentences a defendant, the court
has before it all of the facts and circumstances surrounding
the case. Thus, the court is in a better position than the
Legislature to make a decision regarding the individual and
particular offenses involved.
4)Criminal Justice Realignment : 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).
The author of this bill states that there is a need to clarify
the existing law to reflect the changes to the county jail
population under realignment, specifically that the same group
of offenders can commit the same crime while incarcerated and
receive a much shorter sentence than they would have if they
were sentenced to state prison. Considering that realignment
only shifted responsibility for low-level adult offenders from
the state to the counties while keeping the more dangerous
offenders in state custody, it is not necessary to require the
same provision apply to those who commit felonies while in
county jail. Additionally, this bill is counterproductive to
the goals of realignment which gave local counties more
flexibility on how to manage offenders. Imposing the same
policies that led to overcrowding in state prisons will only
lead to the same result in county jails.
5)Argument in Support : According to the Los Angeles County
District Attorney's Office , "The Los Angeles County District
Attorney's Office is pleased to support Assembly Bill 2486
(Feuer).
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"AB 2486 would require that any inmate sentenced to a county
jail pursuant to subdivision (h) of Section 1170 of the Penal
Code who is convicted of a subsequent felony while in county
jail should serve the time for the subsequent felony
consecutively to their original sentence."
6)Arguments in Opposition :
a) According to the California Public Defenders
Association , "This bill would make the penalty requirements
to serve a consecutive term applicable to a person who
commits a felony while serving a term of imprisonment for a
felony conviction in a county jail. CPDA believes that
when the new felony was committed while in county jail for
a felony, the court should retain the discretion to have
the new term begin immediately upon the court's sentence
for it, rather than being required to wait until the
sentence for the previous offense is concluded.
"CPDA believes that such discretion is more in keeping with
the purposes of Realignment, which is to permit low level
felony offenders to receive local treatment to promote
public safety and facilitate their reintegration back into
society. This discretion lets the court decide on the
appropriate level of punishment."
b) According to the California Attorneys for Criminal
Justice , "This bill would require a judge in every
specified case to impose consecutive sentences on
individuals who commit felony offenses while in the custody
of local county jails. Current law relies on judicial
discretion in these instances. By providing judges
flexibility, the court is able to assess on a case-by-case
basis whether consecutive terms are warranted.
Unfortunately, AB 2486 eliminates this discretion and
imposes mandatory consecutive sentences. CACJ believes in
this instance judicial discretion should be the preferred
approach.
"This bill will force judges to treat every case the same,
even when the facts dictate a contrary outcome. Consider
the following example: a county jail inmate is the victim
of a violent attack by another jail inmate. In the course
of receiving medical attention it is uncovered that the
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victim was in possession of two different types of
contraband, which results in him receiving two felony
charges. Both the attacker and the victim will receive
consecutive sentences as a result of AB 2486. It is hard to
imagine this is the result intended by the proponents of
this bill.
"CACJ recognizes that current law already applies the
mandatory consecutive sentence rule for offenses committed
while in state prison custody. However, we must ask, what
has been the result of this inflexible approach? An
overcrowding problem in our state prisons that has forced
the United States Supreme Court to reprimand the State of
California for its prison conditions. Last year, the
Legislature adopted "realignment" to alleviate the
overcrowding issue. Expanding the very same policies that
are responsible for our overcrowding problems seems unwise.
Preserving judicial discretion will ensure consecutive
sentences continue to be ordered only when justified, not
in those instances where a concurrent sentence is a more
appropriate response."
7)Related Legislation :
a) AB 109 (Committee on Budget). Chapter 15, Statutes of
2011, realigned responsibilities for certain parolees and
newly convicted offenders who are deemed to be non-violent,
non-serious and non-sex offenders from state to local
jurisdictions.
b) SB 576 (Calderon), Chapter 361, Statutes of 2011,
extends to January 1, 2014, the provisions of law that
provide that the court shall, in its discretion, impose the
term or enhancement that best serves the interests of
justice.
8)Prior Legislation :
a) AB 2263 (Yamada), Chapter 256, Statutes of 2010, extends
to January 1, 2012, the provisions of law that provide that
the court shall, in its discretion, impose the term or
enhancement that best serves the interests of justice.
b) SB 40 (Romero), Chapter 3, Statutes of 2007 amended
California's determinate sentencing law to state that where
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a court may impose a lower, middle or upper term in
sentencing a criminal defendant, the choice of appropriate
term shall be left to the discretion of the court to
sentence in the best interest of justice.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744