BILL ANALYSIS �
SB 443
Page 1
Date of Hearing: July 3, 2012
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 443 (Emmerson) - As Amended: June 15, 2012
SUMMARY : Requires a non-serious, non-violent, non-sex offender
convicted of one or more felonies while released on mandatory
supervision to be sentenced to the state prison consecutive to
any remaining time on mandatory supervision. Specifically, this
bill :
1)Provides that any person convicted of one or more felonies
committed while the person is on mandatory supervision, as
specified, the remaining time the person has on mandatory
supervision is shall be served in the state prison, and the
new term of imprisonment shall be served in the state prison
and shall commence from the time the person would otherwise
have completed the mandatory supervision term.
2)States that every person sentenced to a term that includes a
period of mandatory supervision shall be subject to a
warrantless search of his or her person, residence, or
possessions at any time, with or without a warrant and with or
without cause, by an agent of the supervising county or by a
peace officer with the approval of the supervising county
agency.
3)Provides that notwithstanding any other law, no further
pleading or proof of an offense, prior conviction,
enhancement, or requirement to register as a sex offender,
that makes an offender ineligible to serve a term of
imprisonment on a county jail is required.
4)Provides that the jurisdiction of the county agency that has
the responsibility for post-release community supervision over
a person under post-release supervision is terminated by a new
term of imprisonment of three years or more.
5)States that the time a person is on post release supervision
is in custody for a custodial sanction of a post-release
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community supervision condition, or a new conviction shall not
be credited towards a discretionary six month discharge or a
mandatory one year discharge, as specified.
6)Requires any person who is personally armed with a firearm in
the commission of the possession for sale, sale, or
transportation of specified controlled substance offenses to
be sentenced to the state prison for an additional three,
four, or five years rather a term of imprisonment in a county
jail.
EXISTING LAW :
1)Provides, with exceptions, that a felony where the term is not
specified shall be punishable by a term of imprisonment of in
a county jail for 16 months, two, or three years. �Penal Code
Section 1170(h)(1).]
2)Provides, with exceptions, that a felony where the term is
specified shall be punishable by imprisonment in a county jail
for the term prescribed for the underlying offense. �Penal
Code Section 1170(h)(2).]
3)States that notwithstanding the above sections, where a
defendant has a prior or current "serious" or "violent"
felony, as specified, has a prior conviction for an offense
that has all the elements of a "serious" or "violent" felony,
is required to register as a convicted sex offender, or has
been sentence for a crime which an enhancement is imposed for
the commission of multiple felonies involving fraud or
embezzlement, an executed sentence for a felony punishable
under this subdivision shall be served in the state prison.
�Penal Code Section 1170(h)(3).]
4)Provides that the court when imposing a county jail sentence
for a qualifying felony conviction, as specified, may commit
the defendant to the county jail as follows:
a) For the full term in custody as determined in accordance
with the applicable sentencing law.
b) For a term in accordance with the applicable sentencing
law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time
the defendant shall be supervised by the county probation
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officer in accordance with the terms, conditions, and
procedures generally applicable to persons placed on
probation, for the remaining unserved portion of the
sentence imposed by the court. The period of supervision
shall be mandatory, and may not be earlier terminated
except by court order. During the period when the
defendant is under such supervision, unless in actual
custody related to the sentence imposed by the court, the
defendant shall be entitled to only actual time credit
against the term of imprisonment by the court. �Penal Code
Section 1170(h)(5).]
5)Provides that the county agency responsible for post-release
community supervision, as established by the county board of
supervisors, shall maintain post release supervision over a
person under post release supervision until one of the
following events occurs:
a) The person has been subject to post release supervision
for three years at which time the person shall be
immediately discharged from post release supervision.
b) Any person on post release supervision for six months
with no violations of his or her conditions that result in
a custodial sanction may be considered for immediate
discharge by the supervising county.
c) Any person on post release supervision continuously for
one year with no violations of his or her conditions that
result in a custodial sanction shall be discharged from
supervision within 30 days.
d) Jurisdiction over the person has been terminated by
operation of law.
e) Jurisdiction is transferred to another supervising
county agency.
f) Jurisdiction is terminated by the revocation hearing
officer upon a petition to revoke and terminate supervision
by the supervising county agency. �Penal Code Section
3456(a).]
6)States that time during which a person on post release
supervision is suspended because the person has absconded
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shall not be credited toward any period of post-release
supervision. �Penal Code Section 3456(b).]
7)Provides that any person that is personally armed with a
firearm in the commission of or attempted commission of the
possession for sale, sale, transportation, furnishing, or
manufacture of specified controlled substances shall be
punished by an additional and consecutive term of imprisonment
of three, four, or five years in the county jail. �Penal Code
Section 3456(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In the wake of
public safety realignment, practitioners have discovered
inconsistencies and flaws in the statutes that result either
from amendments made by AB 109 and subsequent legislation, or
because the operation of existing statute now no longer makes
sense given the policy shift inherent in realignment. The
provisions of this bill continue the clean-up of realignment
as started by AB 117 to ensure that the operation of
realignment is not impeded by statutory problems."
2)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
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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.). This
bill requires that any person convicted of one or more
felonies committed while on mandatory supervision serve the
remaining time the person has on mandatory supervision in the
state prison, and the new term of imprisonment is required to
be served in the state prison and commences from the time the
person would otherwise have completed the mandatory
supervision term, which in effect would be a mandatory
consecutive sentence. In 2011, prior to realignment, there
were 101,267 individuals on parole and 50,408 of those, or
approximately one-half, had no serious or violent current or
prior felony convictions. In 2011, 13,305 parolees were
returned to custody with a new commitment. If one-half of
these parolees who were non- serious and non-violent offenders
were returned to custody, that would be approximately 6,500
individuals. Under realignment, non-serious, non-violent, and
non-sex offenders cannot be sent to state prison for the
commission of a new non-serious or non-violent offense; this
bill eliminates that prohibition if the offense was committed
while the individual was on mandatory supervision. This bill
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reverses the gains the state has made in reducing the prison
population by, again, cycling several thousand offenders back
to the state prison.
3)Plead and Prove : Under existing law, Penal Code Section
1170(f) states, "Notwithstanding any other provision of this
section for purposes of paragraph (3) of subdivision (h), any
allegation that that a defendant is eligible for state prison
due to a prior or current conviction, sentence enhancement, or
because he or she is required to register as a sex offender,
shall not be subject to dismissal pursuant to Section 1385."
An issue that arises based on the language of Penal Code
Section 1170(f) is whether there is a pleading and proof
requirement for allegations that a person is "eligible for
state prison." The use of the word "allegation" in Penal Code
Section 1170(f) may arguably imply a requirement to plead and
prove eligibility for a commitment to the state prison.
In the context of Proposition 36 treatment, the California
Supreme Court in In Re Varnell (2003) 36 Cal. 4th 1132, 1143
found that a pleading and proof requirement was not necessary
to prove ineligibility. This bill provides that
notwithstanding any other law, no further pleading or proof of
an offense, prior conviction, enhancement, or requirement to
register as a sex offender that makes an offender ineligible
to serve a term of imprisonment on a county jail is required.
This provision makes it clear that the prosecution need not
plead and prove a defendant's eligibility to be sentenced to
state prison.
4)Mandatory Search and Seizure : Under existing law, any inmate
who is eligible for parole or post release community
supervision, as specified, shall agree in writing to be
subject to search and seizure by a parole officer or other
peace officer at any time of the day or night, with or without
a search warrant and with or without cause. �Penal Code
Section 3067 (a).] All probation and parole conditions that
require a person to submit to a warrantless search of their
person or possessions are predicated on the prior consent or
agreement of the person on probation or parole. This bill
unilaterally requires that every person sentenced to a period
of mandatory supervision be subject to "search or seizure at
any time, with or without a warrant and with or without cause,
by an agent of the supervising county agency, or by a peace
officer with the approval of the supervising agency." This
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provision does not require prior consent or written agreement,
as in Penal Code Section 3067, of the person sentenced to
mandatory supervision, and, thus, would run afoul of the
constitutional prohibition against unlawful search and
seizure.
5)Argument in Support : According to the California District
Attorneys Association , "Amendments to PC 1170(f) and PC
1170(h)(3): Per PC 1170(f), a defendant with a current or
prior serious or violent felony, or who must register as a sex
offender, must serve an executed term in state prison, even if
the committing crime fell under PC 1170(h). As it is clearly
the legislative intent of realignment to house felons with
particular criminal records in state prison rather than county
jail, it must be clarified that this exclusion from local jail
imprisonment is fact-based and does not require the
prosecution to separately plead and prove any PC 1170(f)
disqualifying factor. This amendment to PC 1170(f) to modify
it from an 'allegation' to a 'factor' with a companion
addition to PC 1170(h)(3) clarifies that no further pleading
or proof is necessary when a defendant has a factor' in his or
her criminal history that requires housing in the state prison
instead of county jail.
"If a defendant is convicted of a new felony charge while on
mandatory supervision, there is no statutory authority that
outlines whether these cases are to be sentenced
consecutively, concurrently, or independently, and where the
offender serves the term of imprisonment. This change
specifies that the remaining time the person has on the
mandatory supervision term shall be served in state prison,
and the new term of imprisonment shall be served in state
prison and shall commence from the time the person would
otherwise have completed the mandatory supervision term.
"Post Release Community Supervision ( PRCS) is designed to last
no longer than three years. If a defendant commits a new
felony and is sentenced to a new state prison term or county
jail term for longer than three years, the PRCS should
terminate by operation of law. Additionally, time spent in
custody for a custodial sanction for a violation of PRCS or a
new criminal conviction should not count as good behavior
against the six-month permissive discharge or 12-month
mandatory discharge, as the defendant clearly has not remained
law-abiding. The new six- and twelve-month clock should only
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begin ticking upon release from any custodial sanction whether
it is a PRCS violation or a new criminal conviction.
"Simple possession of a quantity of methamphetamine, cocaine,
cocaine base, or heroin while armed with a loaded firearm is
punishable in state prison pursuant to Health and Safety Code
section 11370.1. However, sale, possession for sale or
transportation of methamphetamine, cocaine, cocaine base, or
heroin while armed with a firearm pursuant to Health and
Safety Code sections 11351, 11351.5, 11352, 11366.5, 11366.6,
11378, 11378.5, 11379, 11379.5, or 11379.6 with the attendant
allegation of Penal Code section 12022(c) will result in a
local term of imprisonment in county jail. This is
inconsistent. The more serious crime with the longer
potential sentence is a county jail crime, while the lesser
offense can result in a state prison sentence. PC 12022(c)
should be amended so that if a drug dealer is armed with a
firearm, he will be punished in state prison, not in county
jail."
6)Arguments in Opposition :
a) According to the California Public Defenders
Association , "This bill would require that a person
convicted of one or more felonies committed while the
person is on mandatory supervision serve the remaining time
on the mandatory supervision term, as well as the new term
of imprisonment, in state prison. This provision is,
essentially, three-strikes light for people on mandatory
supervision. This provision would mean that a person who
is on mandatory supervision, and who is convicted of a new
felony, no matter how minor, would be sentenced to serve
all time in state prison. This could easily apply to
trivial initial offenses and trivial new offenses. One of
the clear purposes of realignment is to not have minor
offenders going to state prison. This provision flies in
the face of realignment.
"Existing law provides for a sentence enhancement of 3, 4, or
5 years in a county jail who is armed with a firearm in the
commission of a violation or attempted violation of
offenses relating to the sale, manufacture, or possession
of controlled substances. This bill would provide for a
sentence enhancement of an additional and consecutive term
of imprisonment of 3, 4, or 5 years in the state prison
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instead of county jail. This provision flies in the face
of realignment by changing the law to require a state
prison sentence. First off, it is necessary to understand
there is a difference between using a firearm and having,
or being armed with a firearm. This does not increase
punishment for using a firearm, merely for having one.
Clearly, one of the purposes of realignment, as stated by
CDCR, as well as many others, is to reduce prison
overcrowding in California. Tinkering with realignment,
especially at this early stage, in an effort to send more
people to state prison, is misguided."
b) According to the California Attorneys for Criminal
Justice , "In Apprendi v. New Jersey (2000) U.S. 466, 490,
the Supreme Court rules that the Sixth Amendment right to a
jury applies to any factual finding necessary to warrant
any sentence beyond the presumptive maximum sentence. By
removing the requirement to plead and prove offenses, prior
convictions, enhancements or a requirement to register as a
sex offender, this bill would violate the Six Amendment
right to a jury, as the Supreme Court found in Apprendi.
"SB 443 would also require that people who commit a felony
while on mandatory supervision must serve the rest of their
supervision in state prison, contrary to the current
realignment policy.
"This bill will cause a significant increase in the prison
population, an outcome that would undermine the stated
objective of realignment and run afoul of the United States
Supreme Court ruling in Plata. By increasing state prison
sentences for people on mandatory supervision and removing
the requirement to plead and prove offenses , prior
convictions, enhancements or a requirement to register as a
sex offender, this bill would move California in the wrong
direction."
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
California State Sheriffs' Association
Opposition
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American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Drug Policy Alliance
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744