BILL ANALYSIS �
AB 1321
Page 1
Date of Hearing: January 14, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1321 (Jones) - As Introduced: February 22, 2013
FOR VOTE ONLY
SUMMARY : Adds specified felonies to the definition of serious
felonies, which are strikes under California's Three Strikes
Law. Specifically, this bill adds the following crimes to the
serious felonies list:
1)Threatening a witness, informant, or victim or his or her
immediate family.
2)Human trafficking.
3)Felony child abuse.
4)Stalking.
5)Solicitation to commit murder or sexual assault.
6)Taking a hostage to prevent arrest or to use as a shield.
7)A felony where a "hate crime" enhancement is charged and
proved.
8)Destructive device-related felonies.
9)Threatening to use a weapon of mass destruction.
10)Possession of restricted biological agents.
11)Exploding a destructive device to terrorize.
12)Felony elder physical and financial abuse.
13)Felony violation of fleeing or evading a pursuing peace
officer in a motor vehicle.
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14)Manufacturing a controlled substance.
15)Theft or taking offenses a felony where a loss of over
$200,000.
16)Possession of a firearm by a felon who has been convicted
prior specified serious felonies.
17)Lynching.
18)Street gang recruiting.
EXISTING LAW :
1)Creates, under realignment, two classifications of felonies:
those punishable in county jail and those punishable in state
prison. Specifically, sentences to state prison are now
mainly limited to registered sex offenders and individuals
with a current or prior serious or violent "strike" offenses.
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). [Pen. Code, �
1170(h).]
2)Defines a "strike" prior as serious felonies listed in Penal
Code sections 1192.7(c) and 1192.8, and violent felonies
listed in Penal Code section 667.5(c). [Pen. Code, ��
667(d)(1) and 1170.12(b)(1).]
3)Provides that a defendant who commits serious or violent
felony and has previously been convicted of one "strike" prior
conviction must be sentenced to twice the base term of the
current felony. [Pen. Code, �� 667(e)(1) and 1170.12(c)(1).]
4)Provides that a defendant who commits a serious or a violent
felony and has previously been convicted of two or more
"strike" prior convictions, must be sentence to at least
25-years-to-life in state prison. [Pen. Code, �� 667(e)(2)
and 1170.12(c)(2).]
5)Requires consecutive rather than concurrent sentencing for
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multiple offenses committed by strikers, unless the current
felony convictions arise out of the same set of operative
facts. [Pen. Code, �� 667(c)(6) and 1170.12(a)(6).]
6)Requires affected defendant be committed to state prison, and
disallows diversion or probation. [Pen. Code, �� 667(c)(2)
and (c)(4), and 1170.12(a)(2) and (a)(4).]
7)Limits conduct credits for strikers to 20% of the term. [Pen.
Code, �� 667(c)(5) and 1170.12(a)(5).]
8)Defines "lynching" as the taking by means of a riot of any
person from the lawful custody of a peace officer. (Pen.
Code, � 405a.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Individuals who
commit heinous crimes such as human trafficking, felony child
abuse, elder abuse, threats against victims and witnesses and
lynching - to name just a few - should never be classified as
having committed 'lower level' felony offenses. These 18
crimes should be classified as what these offenses are -
serious felonies. While AB 1321 will not address all of the
many problems with the state's flawed public safety
realignment law, it will better align the definition of a
'serious' felony in the Penal Code with the truth that some
very severe crimes are sadly lacking from the current
definition."
2)Effect on 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
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from eligibility for local custody (i.e., the sentence for
which must be served in state prison).
This bill adds 18 new categories of crimes, and 23 specific new
crimes, to the list of serious felonies. Since serious felony
sentences are not eligible to be served in county jail, this
bill increases the number of crimes which must serve their
time in state prison.
For example, over the last two years, 648 people have been
sentenced to serve custody time for felony child abuse, and
385 people have been sentenced to serve custody time for
felony elder abuse. Over 1,000 inmates would have to serve
those sentences in state prison for those two crimes alone
under this bill.
3)Potential for Prison Overcrowding : As California's prison
crisis worsens, close attention should be paid to legislation
increasing prison overcrowding. The California Policy
Research Center (CPRC) recently issued a report on the status
of California's prisons. The report stated, "California has
the largest prison population of any state in the nation, with
more than 171,000 inmates in 33 adult prisons, and the state's
annual correctional spending, including jails and probation,
amounts to $8.92 billion. Despite the high cost of
corrections, fewer California prisoners participate in
relevant treatment programs than comparable states, and its
inmate-to-officer ratio is considerably higher. While the
nation's prisons average one correctional officer to every 4.5
inmates, the average California officer is responsible for 6.5
inmates. Although officer salaries are higher than average,
their ranks are spread dangerously thin and there is a severe
vacancy rate." [Petersilia, Understanding California
Corrections, California Policy Research Center (May 2006).]
California's prison population will likely exceed 180,000 by
2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
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to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, 30 years of 'tough on crime' politics has
not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentives for offenders
to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims." [Little
Hoover Commission Report, Solving California's Corrections
Crisis: Time is Running Out (2007), pg. 1, 2.]
On February 9, 2009, a United States District Court three-judge
panel issued a tentative ruling mandating the State of
California to resolve chronic prison overcrowding. In the
tentative ruling, the judges state "[t]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
conditions." With prisons housing twice the population they
were built to accommodate, the prospect of early release of
inmates appears imminent unless the Legislature relieves the
current prison population.
Under California's criminal justice realignment in 2011, serious
felony offenses are excluded from inclusion in the list of
crimes for which sentences may be served in county jails.
This bill adds 23 new crimes to the list of serious felonies.
Furthermore, if a defendant commits one of these crimes with a
prior strike or two prior strikes, the defendant will serve
significantly longer sentences, up to life in prison.
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According to California Receiver Clark Kelso in his January 27,
2013 update to the Three Judge Panel sitting on the 9th
Circuit, "In short, there is no persuasive evidence that a
constitutional level of medical care has been achieved
system-wide at an overall population density that is
significantly higher than what the Three-Judge Court has
ordered."
4)Background on Three Strikes : There are actually two Three
Strikes laws: one enacted by the Legislature in Penal Code
Section 667(b)-(i), and another enacted by initiative,
Proposition 184, and codified in Penal Code Section 1170.12.
Both laws are virtually identical. [People v. Hazelton (1996)
14 Cal.4th 101.]
Because one of the Three Strikes laws was enacted by voter
initiative, the Legislature may not amend the statute without
subsequent voter approval unless the initiative permits such
amendment, and then only upon whatever conditions the voters
attached to the Legislature's amendatory powers. [People v.
Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also
Cal. Const., art. II, � 10, subd. (c).]
Proposition 184, Section 4 states: "The provisions of this
measure shall not be amended by the Legislature except by
statute passed in each house by roll call vote entered in the
journal, two-thirds of the membership concurring, or by a
statute that becomes effective only when approved by the
electors." If passed, this provision of this bill will be
submitted for voter approval.
5)Application of the Three Strikes Law (Prior to the Passage of
the Recent 2012 Initiative) : According to a May 2011 fact
sheet prepared by the Legislative Analyst's Office (LAO), "As
of December 31, 2010, there were roughly 41,000 inmates
serving time in state prison under the Three Strikes Law,
making up about 25 percent of the total prison population. Of
the striker population, more than 32,000 are second strikers,
and about 8,700 are third strikers." (See Impact of Three
Strikes on the Criminal Justice System, May 2, 2011.)
The LAO reports that there is considerable variation among
counties in the likelihood that a defendant is prosecuted and
convicted under the law. In a 2005 report evaluating the
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impact of the Three Strikes Law after a decade, the LAO noted:
"local county justice systems have developed various
strategies for handling their Three Strikes caseloads, based
on different policy priorities and fiscal constraints. Thus,
the manner in which the law is implemented at the local level
by prosecutors and judges varies across counties. In some
counties, for example, prosecutors seek Three Strikes
enhancements only in certain cases, such as for certain types
of crimes that are particular problems in their county or
where the current offense is serious or violent. In other
counties, prosecutors seek Three Strikes enhancements in most
eligible cases. Similarly, judges vary in how often they
dismiss prior strikes, based on discretion afforded to them
under the Romero decision. In addition, variation in the
application of Three Strikes not only exists across counties,
but can also occur within counties. In particular,
prosecution practices change over time as counties experience
turnover of district attorneys and judges and as they develop
new methods for handling Three Strikes cases." (A Primer:
Three Strikes - The Impact After More Than a Decade, October
2005, at <
http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm>.)
6)Effectiveness in Reducing Crime : Supporters of the Three
Strikes Law say it has been a major factor in reducing crime
rates in California.
In contrast, a recent report by the Center on Juvenile and
Criminal Justice (CJCJ), argues that the law has not reduced
violent crime. CJCJ concluded: "Analysis of strike
sentencing and crime trends by age group and county
consistently found no evidence supporting the law's deterrent
or selective incapacitation effect on targeted populations or
in the jurisdictions most affected. The populations that
demonstrated the greatest decline in violent crime rates since
1994 were youths and young adults, which experienced the least
strike sentencing, while those ages 40-59, which experienced
much heavier strike sentencing, have shown little or no
improvement in violent crime rates. The eight largest
counties that applied the law the most (Kern, Sacramento, Los
Angeles, Tulare, San Bernardino, Riverside, San Diego, and
Stanislaus), incarcerated strike offenders at a rate averaging
2.2 times greater than the eight major counties that invoked
the law least (San Francisco, Contra Costa, Alameda, Ventura,
Orange, Santa Clara, San Joaquin, and Fresno). Yet, counties
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that vigorously enforced the 'Three Strikes' law did not
experience declines in violent crime relative to counties that
used the law sparingly. Despite their nearly six-fold greater
use of 'Three Strikes' law, Kern and Sacramento (the highest
strike-sentencing counties) experienced lesser reductions in
violent crime trends than Contra Costa and San Francisco
counties (which rarely use the law)." (See Striking Out:
California's "Three Strikes And You're Out" Law Has Not
Reduced Violent Crime, at
.)
According to a 2005 report by the LAO, "The overall crime rate
in California, as measured by the Department of Justice's
California Crime Index, began declining before the passage of
the Three Strikes law. In fact, the overall crime rate
declined by 10 percent between 1991 and 1994. The crime rate
continued to decline after Three Strikes, falling by 43
percent statewide between 1994 and 1999, though it has risen
by about 11 percent since 1999. Similarly, the violent crime
rate declined by 8 percent between 1991 and 1994 and then fell
an additional 43 percent between 1994 and 2003. It is
important to note that these reductions appear to be part of a
national trend of falling crime rates. National crime
rates-as reported by the Federal Bureau of Investigation's
Uniform Crime Report-declined 31 percent between 1991 and
2003, with violent crime declining 37 percent over that
period. Researchers have identified a variety of factors that
probably contributed to these reductions in national crime
rates during much of the 1990s including a strong economy,
more effective law enforcement practices, demographic changes,
and a decline in handgun use." (See, A Primer: Three Strikes
- The Impact After More Than a Decade, at
.)
7)Incarceration Costs : A 2010 report by the California State
Auditor (CSA) concluded that nearly 25% of the inmate
population is incarcerated under the Three Strikes Law. The
CSA estimated that the increase in sentence length due to the
Three Strikes Law will cost California an additional $19.2
billion over the duration of the incarceration of this
population. (See Special Report to Assembly and Senate
Standing/Policy Committees, February 2010 Report 2010-406, p.
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122 at < http://www.bsa.ca.gov/pdfs/reports/2010-406.pdf>.)
8) The Three Strikes Reform Act of 2012 Initiative : A new
ballot initiative written by Stanford professors David Mills
and Michael Romano was filed with the Attorney General on
October 18, 2011. The initiative was passed by the electorate
in November 0f 2012 and is current law in the State of
California. In detail, the initiative:
a) Revises the Three Strikes Law to impose a 25-to-life
sentence only when a new felony conviction is serious or
violent, except continues to impose a 25-to-life sentence
if a third strike conviction was for certain non-serious,
non-violent sex or drug offenses, or involved firearm
possession.
b) Maintains a life-sentence penalty for felons with a
non-serious, non-violent third strike if the prior
convictions were for rape, murder, or child molestation.
c) Provides that repeat offenders who commit a new
non-violent, non-serious crime receive double the ordinary
sentence instead of a 25-to-life term.
d) Allows prisoners currently serving life sentences for
non-serious, non-violent crimes to apply for a sentence
reduction. However, a judge can reduce the 25-to-life
sentence to a term of years no less than double an ordinary
sentence if the judge determines that the sentence
reduction would not cause "an unreasonable risk to public
safety."
9)Previous Reform Efforts : There have been several legislative
efforts to change the Three Strikes Law, but they have all
failed. Additionally, in 2004, the voters rejected
Proposition 66, which would have required that a third strike
be a serious or violent crime and would have reduced the
number of offenses deemed serious under state law. Although
the proposition failed to pass, 47% of the voters did vote in
favor of the initiative.
10) Argument in Support :
According to the California State Sheriffs' Association,
"Since designation of whether a felony is, or is not, a
"serious" felony has a number of important consequences, it is
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critical to endure that the definition encompasses crimes that
are inherently serious and which ought to be treated as such
under the state's laws. AB 1321 would add those who commit
crimes such as human trafficking, felony hate crimes
violations, felony child abuse, elder abuse, threats against
victims and witnesses, bomb and biological weapons-related
crimes, lynching, street gang recruiting, to the list of
serious felonies."
11) Argument in Opposition :
According to the American Civil Liberties Union, "The ACLU of
California regrets to inform you that it must oppose AB 1321,
which significantly expands the list of offenses deemed
serious felonies for purposes of sentencing under California's
Three Strikes Law.
"Under existing law, a person who is sentenced for the
commission of a serious felony, where he or she is also deemed
to have committed a separate serious felony, may be sentenced
to at least five additional years in state prison in addition
to any other sentence. (Cal. Penal Code � 667, subd. (a)(1).)
Additionally, if the defendant is convicted of a second
serious felony, he or she is sentenced to double whatever
sentence the defendant was otherwise facing. (Cal. Penal Code
� 667, subd. (e)(1).) Additionally, defendants sentenced to
prison for a second strike, he or she must serve eighty
percent of that sentence, rather than the usual fifty percent.
(Cal. Penal Code � 667, subd. (c)(5).)
"California voters approved Proposition 36 in November 2012, but
said initiative does not address the sentence enhancements
imposed on 'second strikers.' Proposition 36 merely specifies
the circumstances under which a person may be sentenced to
twenty five years to life for a third strike. This bill
proposes to expand the definition of 'serious felony,' as
defined in Cal. Penal Code � 1192.7, subd. (c), to include
eighteen new felonies, including evading a peace officer and
theft of more than $200,000.
"California is still operating a prison system that is
unconstitutionally overcrowded. Expanding the serious felonies
list will significantly lengthen sentences causing more
impacted facilities. According to California Receiver Clark
Kelso, in his January 27, 2013 update to the Three Judge Panel
sitting on the 9th Circuit: 'In short, there is no persuasive
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evidence that a constitutional level of medical care has been
achieved systemwide at an overall population density 12)that
is significantly higher than what the ThreeJudge Court has
ordered.' (Kelso, Achieving a Constitutional Level of Medical
Care in Californias Prisons Twentysecond TriAnnual Report of
the Federal Receivers Turnaround Plan of Action for
September- December 31, 2012,
filed in Plata, et al., v. Brown, (N. Dist. Cal., E. Dist.
Cal., January 27, 2013, C01-1351 THE, docket no., 2525.)
"California still operates a prison system that is one hundred
fifty percent (150%) of capacity; well beyond the Court's
order of 137.5 percent (%). It makes little sense to enact
more penalty increases that will no doubt cause even more
overcrowding.
"Moreover, the voters just amended California's Three Strikes
Law to be less punitive by a margin of nearly seventy percent
(70%). Significant expansion of Three Strikes is simply
contrary to the will of the People of the State of California.
"For these reasons, we must oppose. Please do not hesitate to
contact us should you have any questions or wish to discuss
our opposition in greater detail."
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
Shasta County Sheriff
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
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