BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1435 (Runner) 5
As Introduced February 24, 2012
Hearing date: April 24, 2012
Penal Code
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CRIMINAL JUSTICE REALIGNMENT OF 2011:
FELONY SENTENCES
HISTORY
Source: Runner
Prior Legislation: AB 109 (Committee on Budget) - Ch. 15, Stats.
2011
AB 117 (Committee on Budget) - Ch. 39, Stats. 2011
ABx1 17 (Blumenfield) - Ch. 12, Stats. 2011
AB 116 (Committee on Budget) - Ch. 136, Stats. 2011
Support: California District Attorneys Association; Association
for Los Angeles
Deputy Sherriffs; California State Sheriffs'
Association; California Police Chiefs Association
Opposition:California Judges Association
KEY ISSUE
SHOULD THE CRIMINAL JUSTICE REALIGNMENT OF 2011 BE REVISED TO
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REQUIRE THAT DEFENDANTS WHO ARE CONVICTED OF A FELONY AND HAVE THREE
OR MORE PRIOR FELONY CONVICTIONS SERVE THAT EXECUTED SENTENCE IN
PRISON?
PURPOSE
The purpose of this bill is to revise the criminal justice
realignment of 2011 by requiring that defendants who are
convicted of a felony and have three or more prior felony
convictions serve that executed sentence in prison.
Current law generally provides that, for any person sentenced on
or after October 1, 2011, certain felonies - those which by
their statutory terms specifically so provide - are punishable
by a term of imprisonment in a county jail, as specified.
(Penal Code � 1170(h).)
Current law provides that, notwithstanding this general
provision, where a defendant meets any of the following criteria
an executed sentence for a felony punishable pursuant to this
subdivision shall be served in state prison:
The defendant has a prior or current felony conviction
for a serious felony described in subdivision (c) of
Section 1192.7;
The defendant has a prior or current conviction for a
violent felony described in subdivision (c) of Section
667.5;
The defendant has a prior felony conviction in another
jurisdiction for an offense that has all of the elements of
a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5;
The defendant is required to register as a sex offender,
as specified; or
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The defendant is convicted of a crime and as part of the
sentence an enhancement pursuant to Section 186.11 is
imposed. (Penal Code � 1170(h)(3).)
This bill would amend this provision to provide in addition that
where a defendant has been convicted of a felony punishable
pursuant to this subdivision and has three or more prior felony
convictions, the executed sentence shall be served in state
prison.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
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For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
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The author's office has been informed that this bill appears to
aggravate the prison overcrowding crisis described above under
ROCA.
COMMENTS
1. Stated Need for This Bill
The Fact Sheet provided by the author's office states in part:
Some California counties, particularly those which
include the poorest urban communities, are
experiencing a disproportionate impact as felons are
realigned to the local jurisdiction.
SB 1435 would alleviate part of that burden by
providing that habitual felons remain under state
jurisdiction.
. . .
This bill would add a habitual felon exception to the
classification of offenders precluded from
imprisonment in a county jail.
Effective January 1, 2013, any person convicted of a
felony having been convicted of three or more prior
felonies would be ineligible for commitment to a
county jail. Prison realignment is based, in part,
upon the premise that counties can reduce recidivism
if given jurisdiction over low level offenders with
the highest potential for rehabilitation. The task
facing the counties is onerous and can best be
achieved if their scare resources are focused upon
offenders who have not already demonstrated that they
are a high risk to reoffend by having been convicted
of three, four, five, or more previous felonies.
Already communities including Stockton, Oakland, and
Fresno are struggling to meet the increasing burdens
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on local law enforcement.
The author is not sure that four felonies is the
proper line of demarcation but is certain that there
is some point at which a habitual felon should be
deemed legally unfit to be sentenced to county jail.
Eliminating progressive penalties for the most
persistent felons is the equivalent of imposing the
same penalty for a drunk driver whether the conviction
was his first or his fourth. The state has tried that
approach and it did not work.
2. What This Bill Would Do
As explained above, this bill would change provisions in the
2011 criminal justice realignment concerning which felonies must
be served in prison. Specifically, this bill would widen the
category under which felony sentences must be served in state
prison - not county jail - by providing that where a defendant
has been convicted of a felony otherwise eligible for punishment
in jail and the defendant has three or more prior felony
convictions, the sentence shall be served in state prison.
As currently drafted, this provision would appear to apply not
only to offenders who may have prior felony convictions
reflected in lengthy criminal histories over a period of years,
but also to offenders who are convicted of multiple felonies in
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the same proceeding.<1> However, in discussions with the
author's staff, Committee staff has been advised that it is not
the intent of the author to reach cases in which offenders
receive multiple convictions arising out of the same general
event, and that the author would be willing to revise the bill's
language consistent with that intent.
This bill would result in more felons serving their custodial
time in prison. Committee staff is unaware of data estimating
the impact of this particular bill on the prison population and
the state's ability to make progress on meeting the reductions
ordered by the court in Plata. The overall estimated impact of
realignment is noted in a Legislative Analyst's Office's
February report on realignment:
CDCR projects that the average daily prison population
will be nearly 11,000
inmates, or 7 percent, lower in 2011-12 than it would
have been in the absence of realignment. By 2016-17,
the department estimates that the prison population
will be lower by nearly 40,000 inmates, or 24 percent,
than it otherwise would
have been absent the 2011 realignment. By the end of
this projection period, the state's prison system is
expected to have about 124,000 inmates. These
estimates are consistent with the administration's
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<1> "In general, a person may be convicted of, although not
punished for, more than one crime arising out of the same act or
course of conduct. 'In California, a single act or course of
conduct by a defendant can lead to convictions "of any number of
the offenses charged.'"People v. Benson (1998) 18 Cal. 4th 24
(citations omitted); See, e.g., People v. Mitchell (2008) 164
Cal. App. 4th 442, in which, during the period of 3 months a
caregiver of an elderly and dependent adult used blank checks,
credit cards and identifying information unlawfully taken from
her client to obtain cash, purchase automobiles and acquire
other merchandise. She was convicted of 51 offenses, including
22 counts of forgery, four counts of receiving stolen property,
three counts of wrongful use of personal identifying
information, and various drug-related offenses.
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original projections regarding the impact of the 2011
realignment on the state prison population.<2>
3. Background: Felony Sentencing Under the Criminal Justice
Realignment of 2011
The "2011 Realignment Legislation Addressing Public Safety"
("criminal justice realignment") fundamentally altered how
convicted felons are handled under California law.<3> Under
California law operative until October 1, 2011, a felony was a
crime punishable by death or imprisonment in state prison.<4>
Effective October 1, 2011, criminal justice realignment
redefined the term "felony" to include crimes punishable by
imprisonment in a county jail, as specified, depending upon the
criminal history of the offender.<5>
As explained in a January 2012 article describing felony
sentencing after realignment:
With respect to felony sentencing, it appears the
intent of the realignment legislation is merely to
change the place where sentences for certain crimes
are to be served. The legislation has not changed the
basic rules regarding probation eligibility. Courts
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<2> The 2012-13 Budget: Refocusing CDCR After The 2011
Realignment, Legislative Analyst's Office (February 23, 2012.)
<3> AB 109 (Committee on Budget) (Ch. 15, Stats. 2011) is the
principal measure establishing the 2011 public safety
realignment. As noted at the beginning of this analysis,
several subsequent measures revised AB 109 and enacted
additional provisions relating to certain aspects of
realignment.
<4> Penal Code � 17. This classification does not affect the
ability of the court to suspend execution of a felony sentence
and impose conditions of probation where allowable, supervised
and performed locally. (See Penal Code � 1203.1.) A
misdemeanor is a crime punishable by imprisonment by 6 months or
not more than one year. (Penal Code �� 19 and 19.2.)
<5> Penal Code � 17, as amended by Section 228 of AB 109 and
Section 6 of ABx1 17.
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retain the discretion to place people on probation,
unless otherwise specifically prohibited, under the
law that existed prior to the realignment legislation.
There is no intent to change the basic rules
regarding the structure of a felony sentence contained
in sections 1170 and 1170.1.
Furthermore, there is no change in the length of term
or sentencing triad for any crime. Realignment comes
into play when the court determines the defendant
should not be granted probation, either at the initial
sentencing or as a result of a probation violation.<6>
The confinement changes under criminal justice realignment -
that is, modifications to where felons serve their executed
felony sentences in custody, either in state prison or in local
facilities -- apply to persons sentenced on or after October 1,
2011. These changes are not retroactive.<7>
Criminal justice realignment provides that numerous felonies are
punishable by a term of imprisonment in county jail - not prison
- unless the crime of conviction or a defendant's criminal
history makes the defendant ineligible for serving their felony
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<6> Felony Sentencing After Realignment, J. Richard Couzens,
Judge of the Superior Court, County of Placer (Ret.); Tricia A.
Bigelow, Presiding Justice, Court of Appeal, 2nd Appellate
District, Div. 8, p. 3 (January 2012).
(http://www.courts.ca.gov/partners/documents/felony_sentencing.pd
f.)
<7> Paragraph (6) of subdivision (h) of Section 1170 of the
Penal Code, as amended by Sections 27 and 28 of AB 117, and
Section 12 of ABx1 17, states: "The sentencing changes made by
the act that added this subdivision shall be applied
prospectively to any person sentenced on or after October 1,
2011." With the exception of the role of courts in adjudicating
parole violations, which starts on July 1, 2013, the major
criminal law provisions of realignment became operative on and
after October 1, 2011. (See Section 68 of AB 117 and Section 46
of ABx1 17.)
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sentence in jail.<8> This change, contained in subdivision (h)
of Penal Code section 1170, applies only to criminal statutes
which have been expressly amended to provide for a felony jail
term where otherwise allowable.<9>
Certain felons are categorically prohibited from serving an
executed felony sentence in county jail. The following persons
are statutorily ineligible to serve any executed felony sentence
in county jail:
The defendant has a prior or current felony conviction
for:
o a serious felony described in subdivision (c) of
Section 1192.7, or
o a violent felony described in subdivision (c) of
Section 667.5;
The defendant has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a
serious or violent felony in California, as specified;
The defendant is required to register as a sex offender;
or
The defendant is convicted of a crime and as part of the
sentence receives an aggravated theft enhancement, as
specified.<10>
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<8> Just like the law prior to realignment about the length of
terms, if a term is not specified in the underlying offense the
crime shall be punishable by a term of imprisonment for 16
months, or two or three years and, for crimes where the
underlying criminal statute specifies the term, the felony shall
be punishable by imprisonment for the term described in the
underlying offense. (See Penal Code � 18, as amended in
Section 230 of AB 109 and Section 7 of ABx1 17, and Penal Code
Section 1170(h), as amended by sections 27 and 28 of AB 117.)
<9> This feature of criminal justice realignment - that its
newly-created felony jail sanction can be applied only to those
criminal statutes expressly amended to include a cross-reference
authorizing that sanction - largely accounts for the length of
AB 109 (663 pages).
<10> Penal Code � 1170(h) (3), as amended in Sections 450 and
451 of AB 109, Sections 27 and 28 of AB 117, and Section 12 of
ABx1 17.
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For convicted felony offenders subject to confinement in a
county jail, courts are authorized to impose the felony sentence
to commit a defendant to county jail as follows:
For a full term in custody as determined in accordance
with the applicable sentencing law.
For a term as determined 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 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 imposed by the court.<11>
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<11> Penal Code � 1170(h) (5), as amended in Section 12 of
ABx1 17.
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