BILL ANALYSIS �
AB 1555
Page A
Date of Hearing: April 8, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1555 (Frazier) - As Introduced: January 27, 2014
SUMMARY : Increases penalties for vehicular manslaughter without
gross negligence, and with gross negligence when the driver of
the vehicle commits the offense while utilizing a mobile
electronic device as specified. Makes injury accidents while on
a mobile device misdemeanors with mandatory jail sentences.
Specifically, this bill :
1)Increases the penalty for vehicular manslaughter without gross
negligence from not more than a year in the county jail to 16
months, two years, or four years when the driver of the
vehicle commits the offense while speaking or texting on a
mobile wireless device as specified.
a) Specifies that this provision will not apply to persons
18 years of age or older who utilize a mobile wireless
device with hands-free technology.
b) Specifies that this provision shall apply to minors
under the age of 18 years regardless of whether the
technology is hands-free or not hands-free.
2)Increases the penalty for vehicular manslaughter with gross
negligence from two, four, or six years to four, six, or ten
years in state prison when the driver of the vehicle commits
the offense while speaking or texting on a mobile wireless
device as specified.
a) Specifies that this provision will not apply to persons
18 years of age or older who utilize a mobile wireless
device with hands-free technology.
b) Specifies that this provision shall apply to minors
under the age of 18 years regardless of whether the
technology is hands-free or not hands-free.
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3)Increases penalties for drivers who operate a motor vehicle
while using a wireless device that proximately cause bodily
injury to a person from infractions with specified fines to
misdemeanors carrying the following jail terms:
a) Minimum mandatory 30 days in the county jail, with a
maximum sentence of six months for any bodily injuries to
another;
b) Minimum mandatory 90 days in the county jail, with a
maximum sentence of one year for great bodily injury to
another.
EXISTING LAW :
1)Provides that vehicular manslaughter committed with gross
negligence is punishable either by imprisonment in the county
jail for not more than one year or by imprisonment in the
state prison for two, four, or six years. (Penal Code � 193.)
2)Provides that vehicular manslaughter without gross negligence
is punishable by imprisonment in the county jail for not more
than one year. (Penal Code � 193.)
3)States that manslaughter is the unlawful killing of a human
being without malice. It is of three kinds: (Pen. Code �
192.)
a) Voluntary--upon a sudden quarrel or heat of passion.
b) Involuntary--in the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act
which might produce death, in an unlawful manner, or
without due caution and circumspection. This subdivision
shall not apply to acts committed in the driving of a
vehicle.
c) Vehicular--
i) Driving a vehicle in the commission of an unlawful
act, not amounting to felony, and with gross negligence;
or driving a vehicle in the commission of a lawful act
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which might produce death, in an unlawful manner, and
with gross negligence.
ii) Driving a vehicle in the commission of an unlawful
act, not amounting to felony, but without gross
negligence; or driving a vehicle in the commission of a
lawful act which might produce death, in an unlawful
manner, but without gross negligence.
4)Punishes the intentional killing of another while in a sudden
quarrel or heat of passion as voluntary manslaughter with
punishment in the state prison for three, six, or 11 years.
5)States that gross vehicular manslaughter while intoxicated is
the unlawful killing of a human being without malice
aforethought, in the driving of a vehicle, where the driving
was in violation of specified driving-under-the-influence
(DUI) offenses, and the killing was either the proximate
result of the commission of an unlawful act, not amounting to
a felony, and with gross negligence, or the proximate result
of the commission of a lawful act that might produce death, in
an unlawful manner, and with gross negligence. (Pen. Code �
191.5(a).)
6)States that vehicular manslaughter while intoxicated is the
unlawful killing of a human being without malice aforethought,
in the driving of a vehicle, where the driving was in
violation of specified DUI offenses, and the killing was
either the proximate result of the commission of an unlawful
act, not amounting to a felony, but without gross negligence,
or the proximate result of the commission of a lawful act that
might produce death, in an unlawful manner, but without gross
negligence. (Pen. Code � 191.5(b).)
7)Provides that a first time offender of gross vehicular
manslaughter while intoxicated shall be punished by
imprisonment in the state prison for four, six, or ten years.
(Pen. Code � 191.5(c) (1).)
8)Provides that an offender of vehicular manslaughter while
intoxicated is punishable by imprisonment in a county jail for
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not more than one year or by imprisonment for 16 months or two
or four years. (Pen. Code � 191.5(c) (2).)
9)Specifies that the vehicular manslaughter while intoxicated
and gross vehicular manslaughter while intoxicated sections of
the Penal Code shall not be construed as prohibiting or
precluding a charge of murder under Pen. Code � 188 upon facts
exhibiting wantonness and a conscious disregard for life to
support a finding of implied malice, or upon facts showing
malice consistent with the holding of the California Supreme
Court in People v. Watson, 30 Cal. 3d 290. Nor shall the
sections be construed as making any homicide in the driving of
a vehicle or the operation of a vessel punishable which is not
a proximate result of the commission of an unlawful act, not
amounting to felony, or of the commission of a lawful act
which might produce death, in an unlawful manner. (Pen. Code
� 191.5(e) and (f).)
10)States that a driver who violates specified provisions of law
related to driving while using an electronic device, that is
punishable as an infraction, and as a result of that violation
proximately causes bodily injury or great bodily injury to
another person is guilty of the public offense of unsafe
operation of a motor vehicle with bodily injury or great
bodily injury. (Veh. Code � 21070.) Offenses are punishable
as follows:
a) A $70 fine if bodily injury is involved; or
b) A $95 fine if great bodily injury is involved.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : "AB 1555 is to serve as an effective
deterrent and an appropriate punishment for those who choose
to use commit an illegal act while they drive and end up
taking someone's life.
"In 2012, 3,328 people were killed throughout the country in
distraction related collisions and nearly half a million
people were injured in crashes that involved distracted
drivers. In all these cases the drivers took their attention
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away from the task of driving and put others in
life-threatening situations.
"According to the California Office of Traffic Safety, cell
phone use while driving is now the leading cause of 'driver
distraction' crashes in California. The California Highway
Patrol continues to write more than 12,000 cell phone tickets
every month. Unfortunately, Californians continue to engage in
this deadly combination of cell phone use and driving, despite
the fact that it has been outlawed for over five years and
that there are numerous reports and public service
announcements explaining just how dangerous it is.
"According to the Virginia Tech Transportation Institute,
sending or receiving a text takes a driver's eyes away from
the road for an average of 4.6 seconds, creating a crash risk
of eight to 23-times worse than not texting. It's the
equivalent of driving blind at 60 mph for over 100 yards.
"A University of Utah study found that cell phone use while
driving delayed reaction time as much as having a blood
alcohol concentration of .08 percent."
2)Manslaughter : Current law has three categories for
manslaughter: voluntary, involuntary, and vehicular.
California law punishes the intentional killing of another
while in a sudden quarrel or heat of passion as voluntary
manslaughter with punishment in the state prison for three,
six, or 11 years. Vehicular manslaughter is further broken
down into four categories: vehicular manslaughter with gross
negligence, vehicular manslaughter without gross negligence,
vehicular manslaughter while intoxicated with gross
negligence, and vehicular manslaughter while intoxicated
without gross negligence.
Vehicular manslaughter, both with or without intoxication, can
be of the gross negligence or without gross negligence
variety. The "with gross negligence" version of each is
punished more severely than it is without gross negligence
counterpart. The entire statutory creation of vehicular
manslaughter arose "because of difficulties experienced in
obtaining juries willing to convict the death driver of
manslaughter (in this area, juries are apt to think, 'There,
but for the grace of God, go I')" and vehicular manslaughter
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is generally punishable less severely than manslaughter.
[ Criminal Law , Wayne R. La Fave, pg 727.]
3)Raises Misdemeanor Vehicular Manslaughter Conduct to a Felony :
This bill increases the penalty for vehicular manslaughter
with simple negligence from a misdemeanor to a straight felony
if the offense involves driving while using a mobile
electronic device, such as a cell phone. The new felony
offense would be punishable by 16 months, two or four years in
custody.
4)Increases the Penalty for Vehicular Manslaughter with Gross
Negligence to be on Par with Voluntary Manslaughter
(Intentional Killing of Another) : California law punishes the
intentional killing of another while in a sudden quarrel or
heat of passion as voluntary manslaughter with punishment in
the state prison for three, six, or 11 years. The classic
example of this offense is coming home and finding your spouse
in bed with another person, grabbing a weapon, and killing
them both. This bill would punish vehicular manslaughter with
gross negligence with four, six or ten years in state prison.
This bill is contrary to settled California law which
traditionally punishes unintentional, negligent behavior
substantially less than the intentional killing of another
person.
5)Increases the Penalties for Vehicular Manslaughter with a
Mobile Device to the Same Level as Vehicular Manslaughter
While Intoxicated : Under existing California law a first time
offender of gross vehicular manslaughter while intoxicated
shall be punished by imprisonment in the state prison for
four, six or ten years. [Pen. Code � 191.5(c)(1).] In
addition, an offender of vehicular manslaughter while
intoxicated (with simple negligence) is punishable by
imprisonment in a county jail for not more than one year or by
imprisonment for 16 months or two or four years. [Pen. Code �
191.5(c)(2).] This bill imposes the exact same penalties on a
drivers who use cell phones in the commission of the crime.
6)On-Going Concerns of Prison Overcrowding : This bill
substantially increases state prison commitments for a
non-realigned felony, vehicular manslaughter with gross
negligence. In January 2010, a three-judge panel issued a
ruling ordering the State of California to reduce its prison
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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 State 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; 179 L.Ed.2d 969,
999.]
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
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. Additionally, in December the
three-judge panel extended the deadline to reduce the prison
population until April 18, 2014, but ruled that no more
extensions will be granted absent extraordinary circumstances.
The parties are currently in negotiations to find a long-term
solution to the prison litigation. The ongoing litigation
indicates that prison capacity remains a concern.
7)Raises Infractions to Misdemeanor Conduct and Imposes
Mandatory Minimum Jail Sentences : Under current law a driver
who is involved in an injury accident while using a mobile
electronic device is subject to a ticket with specified fines
according to the level of injury of the victim. In cases
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involving any bodily injury, there is an additional penalty of
a $70 fine on top of any other fines. In cases involving
great bodily injury the additional fine is $95. All of these
fines are subject to penalties and assessments which roughly
quadruple the value. This bill seeks to punish these offenses
as misdemeanors with mandatory jail sentences as follows.
a) If the accident involves any bodily injury the driver is
guilty of a misdemeanor and must spend a minimum mandatory
30 days in the county jail, and a maximum of 6 months in
the county jail.
b) If the accident involves great bodily injury the driver
is guilty of a misdemeanor and must spend a minimum
mandatory 90 days in the county jail, and a maximum of one
year in the county jail.
8)Penalty and Sentencing Considerations - Mandatory Minimum
Terms Absent a Judicial Finding : This bill seeks to impose
mandatory minimum jail terms for offenses that are currently
infractions (ticket/fine only offenses) in the Penal Code.
Setting the penalty, or range of penalties, for a crime is an
inherently legislative function. The Legislature does have
the power to require a minimum term or other specific
sentence. (Keeler v. Superior Court (1970) 2 Cal.3d 619,
631.)
Sentencing, however, is solely a judicial power. (People v.
Tenorio (1970) 3 Cal.3d 89, 90-93; People v. Superior Court
(Fellman) (1976) 59 Cal.App.3d 270, 275.) California law
effectively directs judges to impose an individualized
sentence that fits the crime and the defendant's background,
attitude and record. (Cal. Rules of Court, rules
4.401-4.425.) This bill limits judicial discretion and
requires the same minimum penalty to be imposed in each case
regardless of the facts of the case and the defendant's
record. For example, a defendant who repeatedly targets
pre-pubescent or pubescent prostitutes would appear
substantially more culpable than a defendant with no criminal
record who solicited an act of prostitution from a 17-year-old
girl.
Courts are in the best position to listen to the facts and
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circumstances of any particular case and impose appropriate
penalties.
9)Distracted Driving : This bill imposes hefty penalties upon
drivers who get into accidents while using a cell phone or
other similar mobile electronic device while driving. The
bill imposes the same penalties as drivers who are intoxicated
when a death is involved, and it imposes mandatory jail time
if there is any injury to the victim.
The bill makes no distinction between driving with a cell
phone and many other forms of distracted driving. Is driving
while putting on makeup in the rear view mirror any less
dangerous than driving while on a cell phone? Or driving
while eating? Or driving while engaged in a sexual act?
Distracted driving is distracted driving. All of the listed
behavior is irresponsible and dangerous. However, if this
bill becomes law, the person who is engaging in sexual
activity while driving will be convicted of a misdemeanor if
they hit someone and the victim dies, but the driver on a cell
phone will face state prison as a felony.
10)Recent Ruling on Use of Cell Phone for Navigation : In
February of 2014, the 5th Appellate District ruled that a
driver could lawfully use the navigation on his cellular
device while driving his vehicle.<1> It is unclear how this
bill would impact a driver using a mobile device for
navigation. (See People v. Spriggs, 5th Appellate District,
Case No. F066927, 2014.)
11)Ordinary Negligence vs. Gross Negligence : Ordinary
negligence is defined as "the doing of something which a
reasonably prudent person would not do, or the failure to do
something which a reasonably prudent person would do, under
similar circumstances." (CALJIC 8.91.) Gross negligence is
defined as "a negligent act which is aggravated, flagrant and
which is such a departure from the conduct of an ordinary
prudent, careful person under the same circumstances as to be
contrary to a proper regard for human life or to constitute
indifference to the consequences of those acts. The facts
must be such that the consequences of the negligent act could
reasonably have been foreseen and it must appear that the
---------------------------
<1> http://www.courts.ca.gov/opinions/documents/F066927.PDF
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danger to human life was not the result of inattention,
mistaken judgment or misadventure but the natural and probable
result of an aggravated, reckless or flagrantly negligent
act." (CALJIC 3.36.)
Case law is clear that "gross negligence cannot be shown by
the mere fact of driving under the influence and violating the
traffic laws." [ People v. Con Staden , 1987, 195 Cal.App. 3d
1423, 1427]. Instead, gross negligence is determined "from
the level of the defendant's intoxication, the manner of
driving, or other relevant aspects of the defendant's conduct
resulting in the fatal accident." [ People v. Bennett , 54 Cal.
3d 1032, 1039 (1991).] Cases where the defendant was
convicted of vehicular manslaughter while intoxicated with
gross negligence illustrate the severe nature of the
circumstances and why the higher penalty was given.
In People v. Thompson , 79 Cal. App. 4th 40, the defendant had
a BAC of 0.20%, and had valium and methamphetamines in her
system. Driving in the day, while going 55 miles per hour in
a 40-mile per hour zone, the defendant veered across the
double line, jerked back into her lane, and lost control of
the car. In People v. Hansen , 10 Cal App.4th 1065, a driver
with a BAC of 0.20% (which for the defendant's 230 pound frame
equates to 15 drinks) was weaving in his lane going 70 to 80
miles per hour. He then entered a curve at 40 miles per hour,
which was well over the recommended 20 to 25 miles per hour.
In People v. Soledad , 190 Cal. App.3d 74, the driver had a BAC
of 0.186%. The skid marks from the fatal accident were
consistent with going around the curve at 60 miles per hour.
The defendant hit the guard rail and never applied the brakes.
Even in cases not involving alcohol, the set of facts that
rises to the heightened punishment in the "with gross
negligence" section illustrate the kind of reckless behavior
that the law punishes much more severely. In People v.
Wattier , 51 Cal. App 4th 948, the defendant was driving 85
miles per hour, in traffic that was busy and flowing at 65
miles per hour. The defendant darted between traffic without
signaling, was tailgating, and tried to pass on the shoulder,
causing a fatal accident.
Cases of persons convicted for vehicular manslaughter while
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intoxicated and without gross negligence show a very different
type of fact pattern. In the unpublished case People v.
Rosan , 2005 Cal. App. Unpub. Lexis 6975, the defendant had a
BAC of .10%. As she was driving, she turned to say something
to one of her three passengers; when she turned her head
forward again, she realized she was on the right shoulder of
the road. The defendant overcorrected, drove off the road,
and her car overturned. The defendant plead no contest to two
counts of vehicular manslaughter without gross negligence and
received a prison sentence of two years and eight months. In
People v. French , 77 Cal. App.3d 511 (1978), the defendant had
a BAC of between 0.16% and 0.19% and struck a bicyclist. The
defendant was driving at a relatively low rate of speed and
apparently swerved off the road. In the unpublished case
People v. Burkett , 202 Cal.App. Unpub. Lexis 6080 (2002), the
defendant was under the influence of methamphetamine and was
driving approximately 20 miles over the speed limit when he
struck and killed a bicycle rider. The bicycle rider had
entered the street after failing to stop at a stop sign and
had a BAC of 0.12%.
12)Vehicular Manslaughter is Not a Violent Felony : Violent
felons are only entitled to 15% worktime credits, and must
therefore serve 85% of their sentences. Vehicular
manslaughter while intoxicated and gross vehicular
manslaughter while intoxicated are not violent felonies.
Felonies which inflict great bodily injury as defined in Pen.
Code � 12022.7, et seq., are violent felonies. However, Pen.
Code � 12022.7 specifically exempts manslaughter and murder
from inclusion in crimes that constitute great bodily injury.
As a result, vehicular manslaughter while intoxicated and
gross vehicular manslaughter are serious felonies (strikes),
but not classified as violent felonies which require offenders
to serve 85% of their sentences.
13)Argument in Support : According to the California Association
of Highway Patrolmen , "This bill will increase penalties for
drivers who kill or cause a person bodily harm while talking
or texting without a hands-free setup. Specifically, it would
make the violation for those who cause bodily harm punishable
by imprisonment in a county jail for up to three years, and
would make vehicular manslaughter with gross negligence under
these circumstances punishable by imprisonment in the state
prison for four, six or ten years.
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"Using a wireless device, without being hands-free, has not
only proven to be distracting, but also dangerous. Increasing
the penalties for those who do will enhance awareness and
essentially save lives."
14)Argument in Opposition: According to the California Public
Defenders Association , "Currently, vehicular manslaughter
without gross negligence is a misdemeanor punishable by up to
one year in the county jail. This bill would make such
offense, if committed while dialing, talking, or texting on a
wireless device without hands-free capability, a straight
felony (albeit under PC 1170(h)) punishable by 16 months, two
years, or four years. Currently, vehicular manslaughter with
gross negligence is a wobbler, punishable by a year in the
county jail or by two, four, or six years in state prison.
This bill would make such offense, if committed while dialing,
talking, or texting on a wireless device without hands-free
capability, a straight felony punishable by four, six, or ten
years in state prison. \
"In seeking to make the abovementioned changes, this bill
seems to be mirroring the penalties for vehicular manslaughter
while intoxicated, with and without gross negligence, as set
forth in Pen. Code � 191.5, with the single notable exception
that vehicular manslaughter without gross negligence is still
a wobbler, punishable by up to one year in county jail.
"To single out cell phone use for such a disproportionate
penalty, out of all the other causes of fatal accidents, begs
the question that this activity is worse than all others. Is
it worse than speeding, illegal passing; illegal or unsafe
left turns, driving a semi truck with brakes known to be
unsafe, or driving with an unsecured baby in the car? Is
non-hands-free cell phone use the only act that is on a par
with drunk driving?
"Singling out drunk driving for special treatment among all
vehicular manslaughters seems to make sense because it is a
singular, severe, and persistent problem which requires an
element of premeditation in repeatedly consuming alcoholic
drinks to get to the prohibited level when one knows that
driving will follow, and it has met with a high level of
public opprobrium. When we start adding offenses like cell
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phone use to the list then we are entering upon a slippery
slope. How do we logically separate cell phone use causing
death from reckless driving, speed contests, or illegally
passing a stopped school bus causing death? Distracted driving
through the manipulation of wireless devices is worst among
young drivers under eighteen, who are already prohibited from
using such a device under any conditions.
"Talking to passengers in the vehicle has been shown to be one
of the most distracting activities a driver can engage in, and
young drivers once again are the biggest offenders. Enforcing
the existing laws and being more diligent in educating our
young drivers would be more effective. Additionally, as
technology has contributed to this problem it also shows
promise for reducing it. More and more vehicles are coming
equipped with Bluetooth technology as standard equipment.
Technology is also being introduced in a few cars to block
manual dialing or texting while the vehicle is in motion.
"To the extent the auto industry might be lagging in that
respect perhaps the legislature's efforts might be better
directed at requiring such safety features, just as it has
required seat belts, air bags, and infant restraint systems.
Current law (VC 21070) makes it an infraction to violate any
rule of the road which causes injury or great bodily injury,
with mandatory minimum fines. This bill would amend that
section by singling out illegal wireless device use while
driving as the sole basis for making such offense punishable
as a misdemeanor with mandatory minimum jail sentences
instead. "
15)Prior Legislation :
a) AB 303 (Spitzer), 2007-08 Legislative Session, would
have increased the penalty for vehicular manslaughter while
intoxicated from an alternate felony/misdemeanor,
punishable by up to one year in county jail or by 16
months, 2 or 4 years in state prison, to a straight felony,
punishable by 16 months, 2 or 4 years in state prison. AB
303 would have also clarified that gross vehicular
manslaughter while intoxicated was a violent felony,
thereby making the offense a "strike" for sentencing
purposes - double the base term with a prior violent or
serious offense - and reducing potential sentence credits
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from 50% to 15%. AB 303 was held in the Assembly
Appropriations Committee.
b) AB 2559 (Benoit), 2005-06 Legislative Session, increased
the penalty for vehicular manslaughter while intoxicated
without gross negligence from an alternate
felony/misdemeanor to a straight felony and increased
penalties for other specified vehicular manslaughter
sections. Prior to the hearing by this Committee, the
author amended AB 2559 to remove the provisions related to
increasing penalties and instead made technical changes the
vehicular manslaughter sections of the Penal Code.
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
California Association of Highway Patrolmen
California Police Chiefs Association
Los Angeles Police Protective League
Riverside Sheriffs Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744