BILL ANALYSIS Ó
AB 1449
Page 1
Date of Hearing: April 22, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1449 (V. Manuel Pérez) - As Amended: April 10, 2014
SUMMARY : Substantially limits the scope of the 2011 Criminal
Justice Realignment Act by requiring a defendant sentenced to a
term of more than 7 years to serve the term in the state prison
rather than jail, and requiring parole supervision rather than
PRCS for a person with a prior conviction for a serious,
violent, or strike felony. Specifically, this bill :
1)Requires any defendant sentenced to a term of seven or more
years to serve that sentence in state prison rather than in
the county jail.
2)Requires any person released from state prison who has a prior
serious, violent, or "strike" conviction, or a prior
conviction classifying him or her as a high-risk sex offender,
or as a mentally disordered offender, to be subject to parole
supervision.
3)States that the provisions of this bill will not go into
effect unless the federal court order dated February 10, 2014,
requiring bed capacity to be at 137.5 percent of design
capacity by February 28, 2016, has been fully complied with on
or before that date.
EXISTING LAW :
1)Defines a "felony" as "a crime that is punishable with death,
by imprisonment in the state prison, or notwithstanding any
other provision of law, by imprisonment in a county jail under
the provisions of subdivision (h) of [Penal Code] Section
1170." (Pen. Code, § 17, subd. (a).)
2)States that the punishment for a felony not otherwise
prescribed is 16 months, or two or three years in state
prison, unless the offense is punishable under Penal Code
section 1170, subdivision (h). (Pen. Code, § 18, subd. (a).)
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3)Prohibits a term of more than one year in the county jail
except for executed felony sentences under Penal Code Section
1170, subdivision (h). (Pen. Code, §19.2.)
4)Specifies where the defendant has a prior or current felony
conviction for a serious felony, or a prior or current
conviction for a violent felony, has a prior felony conviction
in another jurisdiction for an offense that has all the
elements of a serious felony or a violent felony, or is
required to register as a sex offender, or is convicted of a
crime and as part of the sentence a specified enhancement is
imposed, an executed sentence for a felony shall be served in
state prison. (Pen. Code, § 1170, subd. (h)(3).)
5)Provides that a felony not specified in the above provision
shall be punishable by a term of imprisonment in the county
jail. (Pen. Code, § 1170, subds. (h)(1) & (2).)
6)Provides that for purposes of county-jail eligibility, any
allegation that a defendant is eligible for state prison due
to a prior or current conviction, sentence enhancement, or
because the defendant is required to register as a sex
offender, is not subject to dismissal under Penal Code section
1385. (Pen. Code, § 1170, subd. (f).)
7)Designates about 70 felonies as state-prison offenses. (See
e.g., Pen. Code, §§ 86 [bribes involving member of the
Legislature], 92 [bribes involving judicial officer or juror],
191.5, subd. (c)(1) [gross vehicular manslaughter while
intoxicated], 266i [pandering].)
8)Authorizes the court, when imposing a sentence for a county
jail-eligible felony, to commit the defendant to county jail
as follows (Pen. Code, § 1170, subd. (h)(5)):
a) For a full term in custody as determined in accordance
with applicable sentencing law; and
b) For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a
concluding portion or the term selected in the court's
discretion, during which time defendant will be placed on
mandatory supervision for the remaining unserved portion of
the sentence imposed by the court.
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9)Authorizes counties to contract with the California Department
of Corrections and Rehabilitation (CDCR) to house county jail
felons. (Pen. Code, § 2057.)
10)Requires the following persons released from prison prior to,
or on or after July 1, 2013, be subject to parole under the
supervision of CDCR (Pen. Code, § 3000.08, subds. (a) and
(c).):
a) A person who committed a serious felony listed in Penal
Code section 1192.7, subdivision (c);
b) A person who committed a violent felony listed in Penal
Code section 667.5, subdivision (c);
c) A person serving a Three-Strikes sentence;
d) A high risk sex offender;
e) A mentally disordered offender;
f) A person required to register as a sex offender and
subject to a parole term exceeding three years at the time
of the commission of the offense for which he or she is
being released; and,
g) A person subject to lifetime parole at the time of the
commission of the offense for which he or she is being
released.
11)Requires all other offenders released from prison to be
placed on post-release community supervision (PRCS) under the
supervision of a county agency, such as a probation
department. (Pen. Code, § 3000.08, subd. (b).)
12)States that, notwithstanding any other law, a person released
from prison prior to October 1, 2011, is subject to parole
under CDCR supervision. (Pen. Code, § 3000.09.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In 2011,
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Governor Brown signed AB 109, The Public Safety Realignment
Act, which shifted to counties the responsibility for
monitoring, tracking, and incarcerating lower-level offenders
previously sent to state prison.
"The vision of realignment is to reduce the overall prison
population and to incarcerate lower level offenders closer to
home, providing them with the supports and re-entry services
to reduce recidivism and support family reunification.
Assemblyman Pérez supports this vision but also recognizes
that realignment has had a significant impact on local
jurisdictions and our communities.
"AB 1449 makes several changes to the AB 109 statute. It
addresses overcrowding in local jails by specifying that those
with long-term placements be remanded to state custody where
they can access the facilities and programs needed for
successful rehabilitation. Recognizing the facilities and
programming demands of complex cases, the bill also authorizes
the consideration of an offender's full adult criminal history
when determining county or state supervision. The reforms in
this bill were identified in a November 2013 report, Voices
from the Field: How California Public Safety Stakeholders View
Realignment, conducted by the Stanford Criminal Justice
Center, which surveyed police, sheriffs, judges, prosecutors,
defense attorneys, probation and parole agents, victim
advocates, offenders and social service representatives
statewide."
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 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 been specifically
excluded from eligibility for local custody (i.e., the
sentence for which must be served in state prison).
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This bill specifies that, regardless of the crime or crimes
committed, any defendant who is sentenced to a term of seven
or more years must serve that sentence in state prison rather
than in the county jail. Thus, this bill creates a new
exclusion for county-jail eligibility.
Realignment also shifted the supervision of some released prison
inmates from CDCR parole agents to local probation
departments. Parole under the jurisdiction of CDCR for
inmates released from prison on or after October 1, 2011 is
limited to those defendants whose term was for a serious or
violent felony; were serving a Three-Strikes sentence; are
classified as high-risk sex offenders; who are required to
undergo treatment as mentally disordered offenders; or who,
while on certain paroles, commit new offenses. (Pen. Code, §§
3000.08, subds. (a) and (c), and 3451, subd. (b).) All other
inmates released from prison are subject to up to three years
of PRCS under local supervision. (Pen. Code, §§ 3000.08,
subd. (b), and 3451, subd. (a).)
This bill requires that inmates who have not only current
convictions for any of the above crimes, but also prior
convictions for any of these, to be subject to parole
supervision instead of PRCS.
3)On-Going Concerns for Prison Overcrowding : In January 2010,
a three-judge panel issued a ruling ordering the State of
California to reduce its prison population to 137.5% of design
capacity because overcrowding was the primary reason that CDCR
was unable to provide inmates with constitutionally adequate
healthcare. (Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United States
Supreme Court upheld the decision, 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.)
The original deadline to reach the required prison population
reduction was June 2013. In January 2013, the State moved to
vacate or to modify the population reduction order, arguing
that the reductions made were sufficient. But in April 2013,
the three judge panel denied the Governor's motion to vacate
or modify the court's population reduction order. The court
ordered the state to take all necessary steps to reduce the
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prison population to 137.5% by December 31, 2013.
In September 2013, the State submitted a report to the court
advising that the current overcrowding level was 147.1% of
design capacity. The State asked the court for a three-year
extension to comply with the deadline to reduce crowding to
the mandated level. The State also stated that if no
extension was granted, it would comply with the cap by moving
prisoners to private prisons and county jails. Meanwhile,
state officials also filed an appeal to the United States
Supreme Court. In December 2013, the United States Supreme
Court refused to consider the State's appeal.
In February 2014, the three-judge panel issued its final order.
It granted the state a two-year extension to achieve the
ordered reduction in the prison population to 137.5% design
capacity. The State must meet the following interim and final
population reduction benchmarks: 143% of design bed capacity
by June 30, 2014; 141.5% of design bed capacity by February
28, 2015; and 137.5% of design bed capacity by February 28,
2016. During that time, CDCR is prohibited from increasing
the number of inmates housed in out-of-state facilities.
Additionally, the court created the position of a "Compliance
Officer" with the authority to release prisoners if the State
fails to reach one of the benchmarks, with the number of
prisoners released being the number necessary to bring
defendants into compliance with the missed benchmark. Thus,
prison capacity remains a serious concern.
CDCR has informed this Committee that based on the last
population figures prior to realignment, and excluding crimes
that currently send individuals to state prison pursuant to
realignment, over five years there would be an increase to the
daily prison population of about 1000 individuals if, as
proposed by this bill, defendants serving terms longer than
seven years were required to serve those sentences in state
prison.
It should be noted that this bill specifies its provisions do
not go into effect unless the state has fully complied with
the court order requiring the prison population to be at
137.5% of design capacity.
However, once the state has complied with the federal court
order, the prison population will need to be maintained, not
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increased. And according to the Legislative Analyst's Office
(LAO), "CDCR is currently projecting that the prison
population will increase by several thousand inmates in the
next few years and will reach the cap by June 2018 and exceed
it by 1,000 inmates by June 2019."
(http://www.lao.ca.gov/reports/2014/budget/criminal-justice/cri
minal-justice-021914.aspx.) The LAO notes that predicting the
prison population is "inherently difficulty" and subject to
"considerable uncertainty." (Ibid.) Nevertheless, creating a
new exclusion for county jail sentences when the prison
population is already expected to increase seems imprudent.
4)Reports of Long Jail Felony Sentences : County jails are not
particularly well suited to house long-term offenders because
they were not originally designed to do so. So, the longer
jail sentences resulting from realignment create challenges
for some counties, particularly those with pre-realignment,
court-imposed population caps.
Last year, the California State Sheriffs' Association conducted
a survey regarding numbers of long-term offenders in county
jail. A summary of the information collected from 52 counties
as of February 25, 2013 noted that there were 1,109 county
jail inmates sentenced to 5 to 10 years and 44 county jail
inmates sentenced to over 10 years. The most common crimes
for those sentenced in this range were vehicle theft, drug
trafficking, receiving stolen property, identity theft, and
commercial burglary. (See
.)
However, the use of split sentencing permitted under realignment
could affect the incidence of long jail felony sentences. For
convicted felony offenders subject to confinement in the
county jail, the court is permitted to determine the term of
the sentence in accordance with 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 is mandatory, and cannot be
terminated early except by court order. (Pen. Code, § 1170,
subd. (h)(5)(B).)
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The Chief Probation Officers of California has compiled data
regarding sentencing decisions for felons sentenced under
Penal Code section 1170, subdivision (h), and shared it with
this Committee. Their data indicates that the percent of
split sentences has grown from around 25% of all 1170(h)
sentences in early 2012, to 32% of such sentences as of
December 2013. Thus, although the use of split sentencing is
increasing, it still remains underutilized. Therefore, a
possible alternative to avoiding some of these lengthy jail
sentences without exacerbating the prison overcrowding problem
would be to use split sentences with more frequency.
Moreover, setting a limit on county-jail terms may create a
perverse incentive to over-charge offenders and to impose
longer sentences in order to ensure offenders are sent to
state prison. When analyzing the Governor's current budget
which proposes that felons serving sentences longer than ten
years be required to serve their sentence in state prison, the
LAO notes, "If this proposal were adopted, counties would have
a fiscal incentive to seek longer sentences for defendants as
doing so would shift the financial responsibility of these
offenders from counties to the state. Moreover, as counties
struggle with increased jail populations, longer sentences
could also become an easy way to help reduce county jail
populations."
(.) The same is true of the
provisions of this bill, except that the sentencing threshold
is significantly lower than that proposed by the Governor.
Meanwhile, counties have other options for housing long-term
offenders, including contracting with the CDCR, private
prisons, and/or other counties. (See e.g., Pen. Code, §
2057.) Additionally, local capacity needs have not been
ignored. Since 2007, the state has invested $1.7 billion for
jail construction. (See AB 900 (Committee on Budget), Chapter
7, Statutes of 2007, and SB 1022 (Committee on Budget),
Chapter 42, Statutes of 2012.) And the Governor's budget for
2014-15 proposes an additional $500 million in lease-revenue
bonds for local jail construction.
()
5)Practical Considerations : As noted above, one of the
provisions of this bill states that the other provision do not
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go into effect unless the state has fully complied with the
court order requiring the prison population to be at 137.5% of
design capacity. Since the final benchmark for the
court-ordered population reduction is February 28, 2016, this
bill seems premature. Would it be more appropriate to
introduce such a measure in the next Legislative Session?
Moreover, it is unclear how the provisions of the bill are to be
implemented if it in fact goes into effect. Would persons
currently serving sentences over seven years in county jails
be relocated to prison, or would it apply prospectively only?
What if there are more persons serving these types of
sentences than there is bed space in prison? Who chooses
which inmates are sent to prison and how? Would this
decision-making process raise equal protection concerns? As
currently written, this bill lacks important details regarding
implementation.
6)Effectiveness of Parole Supervision : One of the premises of
this bill is that individuals with prior serious, violent, or
"strike" convictions should be supervised by CDCR because
parole agents are better trained to supervise this population.
A recent report by the Stanford Criminal Justice Center based on
interviews of county stakeholders charged with implementing
realignment makes the same claim. The report states,
"Probation officers, already facing increasing caseloads, are
ill equipped to manage such serious and sophisticated
offenders." (See Voices from the Field, How California
Stakeholders View Criminal Justice Realignment, by Joan
PetersiliaPh.D., Draft for Review and Comments, November 2013,
with updates December 2013, at p. 217
.) The report cites to the fact that some counties are now
arming their probation officers. (Ibid.) As such, the report
recommends that all offenders with prior or serious violent
convictions should be ineligible for PRCS. (Id. at p. 218.)
However, the presumption that parole agents are more effective
at supervising individuals on supervised release is
questionable. A 2013 report by the Legislative Analyst's
Office noted that in 2010 the parolee failure rate in
California was higher than the probationer failure rate. The
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probation "failure rate" was at about 40%, whereas the parolee
failure rate was close to 70%. (See California's Criminal
Justice System - A Primer, January 2013
.)
7)Funding for Realignment Has Already Been Shifted to Local
Governments : As part of realignment the state shifted certain
revenues to local governments. As explained by the LAO:
"(T)he 2011-12 budget package included statutory changes to
realign several criminal justice and other programs from state
responsibility to local governments, primarily counties.
Along with the shift, or realignment, of programs, state law
realigned revenues to locals. Specifically, current law
shifts a share of the state sales tax, as well as Vehicle
License Fee revenue, to local governments. The passage of
Proposition 30 by voters in November 2012, among other
changes, guaranteed these revenues to local governments in the
future.
Would the counties have to return part of their
realignment-allotted revenues back to the State, or would the
State have to pay twice to incarcerate these individuals
because the funding is constitutionally protected? (See Cal.
Const., Art. XIII, sec. 36.)
8)Argument in Support : According to the California Police
Chiefs Association , the sponsor of this bill, "AB 1449 will
codify the recommendations made in the landmark Stanford
University interim study of realignment, VOICES FROM THE
FIELD. That study identified several implementation
challenges related to AB 109, the original realignment act
enacted in 2011. Specifically, VOICES FROM THE FIELD
recommended addressing three subject matter areas of concern:
"1) Allow the offender's full criminal history to be considered
when determining whether the county or state would supervise a
parolee rather than the most recent offense;
2) Impose a one-year prison sentence on anyone convicted of
three or more technical probation violations; and
3) Provide that a defendant serve time in state prison if their
felony sentence is more than three years.
"These VOICES FROM THE FIELD recommendations are embodied in AB
1449. Taken together, they will make modifications to
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California's realignment law and enhance the prospects for the
success of this ambitious change in California's criminal
justice system."
9)Argument in Opposition : According to the American Civil
Liberties Union , "California is still in the midst of a prison
overcrowding crisis. Although the Three Judge Panel granted a
two year extension for the State to comply with its order to
reduce population to 137.5 percent of capacity - it does not
allow for any increase in population. (Coleman et al, vs.
Brown, Three Judge Court, No. C01-1351, THE, Document 2766,
p., 2, (February 10, 2014).)
"The Court's order prohibits an expansion of the number of
inmates that are currently housed out of state, and specifies
that the State reduce the number of inmates housed in private
in-state facilities. (Id.) Moreover, California must reduce
its population to 143% percent of capacity no later than June
30, 2014. (Id.) California's prison population is currently
150% of capacity and climbing. Hence, in order to reach the
required court order, California has to reduce its population,
not increase the population.
"Furthermore, rather than returning inmates sentenced to longer
than seven years to state prison, counties should instead be
encouraged to review sentencing practices and alternative
custody options. Defendants eligible for sentencing under the
Realignment statute are, by definition, non-violent and
non-serious. Hence counties should not default to business as
usual wherein inmates are sentenced to longest terms
possible."
10)Related Legislation :
a) AB 1901 (Muratsuchi) authorizes a court, upon a motion
by the district attorney, or upon the court's own motion,
to order a person who will serve a term in a state prison
for a crime that is not a serious felony, violent felony,
an offense for which the person was sentenced pursuant to
the Three Strikes Law, a crime where the person is
classified as a high-risk sex offender, to be released on
parole rather than post release community supervision. AB
1901 is pending hearing in this Committee.
b) SB 957 (Vidak) requires a defendant who is sentenced to
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an aggregate term of 10 years or more to serve his or her
sentence in state prison. SB 957 is pending hearing in the
Senate Public Safety Committee.
11)Prior Legislation :
a) AB 2 (Morrell), of the 2013-2014 Legislative Session,
required a person who violates the conditions of parole or
of PRCS by failing to fulfill sex-offender registration
requirements to serve time for the violation in prison
rather than in the county jail. AB 2 failed passage in
this Committee.
b) AB 63 (Patterson), of the 2013-2014 Legislative Session,
required that a person on PRSC or parole whose supervision
was revoked for removing or disabling global positioning
system (GPS) affixed as a condition of release, and who was
ordered to serve a term of custody for the violation, to
serve that term in the state prison. AB 63 failed passage
in this Committee.
c) AB 222 (Cooley), of the 2013-2014 Legislative Session,
required any person convicted of the sale or possession for
sale of a controlled substance with a weight and volume
enhancement be sentenced to the state prison. AB 222
failed passage in this Committee.
d) AB 601 (Eggman), of the 2013-2014 Legislative Session,
authorized a court upon revocation of parole to commit the
person to state prison for one year. AB 601 was referred
for an interim study and subsequently died.
e) AB 605 (Linder), of the 2013-2014 Legislative Session,
provided that a defendant who was released on parole or
PRCS, who has suffered a prior or current felony requiring
registration as a sex offender, and who violates parole or
PRCS shall serve any period of incarceration ordered for
that violation in the state prison. AB 605 failed passage
in this Committee.
f) AB 1334 (Conway), of the 2013-2014 Legislative Session,
required all persons released from prison for a current, or
prior, conviction or juvenile adjudication requiring
sex-offender registration to be subject to parole
supervision by the CDCR. AB 1334 failed passage in this
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Committee.
g) SB 57 (Lieu), Chapter 776, Statutes of 2013, requires a
felon being supervised on parole who willfully defeats
their global positioning system/electronic monitoring, to
serve a mandatory 180 days of incarceration.
h) SB 226 (Emmerson), of the 2013-2014 Legislative Session,
required that a defendant convicted of a felony and found
to have a "severe mental disorder" as specified, serve
their sentence in state prison rather than county jail and
also be supervised on state parole upon release. SB 226
failed passage in the Senate Public Safety Committee.
i) SB 287 (Walters), of the 2013-2014 Legislative Session,
made the provisions for PRCS inapplicable to any person
released from prison who has a prior conviction for a
serious or violent felony, a crime for which the person
received a third strike, or a crime that resulted in the
person being classified as a High Risk Sex Offender. SB
287 failed passage in the Senate Public Safety Committee.
j) SB 710 (Nielsen), of the 2013-2014 Legislative Session,
made the provisions of PRCS applicable only to persons
released from prison prior to January 1, 2014, and required
all offenders released from prison on or after that to be
subject to parole supervision by CDCR for a minimum period
of three years. SB 710 failed passage in the Senate Public
Safety Committee.
aa) AB 109 (Committee on Budget), Chapter 15, Statutes of
2011, enacted Criminal Justice Realignment which, among
other things, limited which felons could be sent to state
prison, and required that more felons serve their sentences
in county jails.
REGISTERED SUPPORT / OPPOSITION :
Support
California Police Chiefs Association (Sponsor)
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
Cities Association of Santa Clara County
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Golden State Bail Agents Association
Los Angeles County Probation Officers Union
Los Angeles Police Protective League
Riverside Sheriffs' Association
Taxpayers for Improving Public Safety
Opposition
American Civil Liberties Union
American Friends Service Committee
California Public Defenders Association
Center on Juvenile and Criminal Justice
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744