BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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6
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AB 1686 (Medina) 6
As Introduced: February 13, 2014
Hearing date: May 13, 2014
Penal Code
JM:sl
TRESPASS:
REQUESTS FOR LAW ENFORCEMENT ASSISTANCE
HISTORY
Source: Author
Prior Legislation:AB 668 (Lieu) Ch. 531, Stats. 2010
AB 924 (Maldonado) Ch. 101, Stats. 2003
SB 993 (Poochigian) Ch. 805, Stats. 2003
SB 1486 (Schiff) Ch. 563, Stats. 2000
Support: California Police Chiefs Association; California State
Sheriffs' Association; Western Manufactured Housing
Communities Association
Opposition:Taxpayers for Improving Public Safety
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUE
WHERE NOTICE HAS BEEN POSTED ON LAND OR A STRUCTURE THAT THE
PROPERTY IS NOT OPEN TO THE PUBLIC, SHOULD THE OWNER'S REQUEST FOR
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LAW ENFORCEMENT TO ASSIST IN DEMANDING THAT TRESPASSERS LEAVE THE
PROPERTY REMAIN VALID FOR ONE YEAR?
PURPOSE
The purpose of this bill is to provide that where the owner,
owner's agent or person in lawful possession of land or a
structure that is not open to the public, and posted as such,
requests law enforcement assistance in demanding that
trespassers leave the property, the request shall remain valid
for one year.
Existing law includes numerous provisions defining various forms
of trespass and trespass penalties. The crime definitions and
penalties typically turn on whether any damage has been done to
the property and whether the trespasser refuses a valid request
to leave the property. (Pen. Code � 602-607.)
Existing law provides that any person is guilty of a
misdemeanor, punishable by a county jail term of up to six
months, a fine of up to $1000, or both, who enters any other
person's cultivated or fenced land, or who enters uncultivated
or unenclosed lands where signs forbidding trespass are
displayed at intervals not less than three to the mile along
exterior boundaries and at all roads and trails entering the
lands without written permission, and does any of the following:
Refuses or fails to leave immediately upon being requested to
do so by the owner, owner's agent or by the person in lawful
possession;
Tears down, mutilates, or destroys any sign or notice
forbidding trespass or hunting;
Removes or tampers with any lock on any gate on or leading
into the lands; or,
Discharges a firearm. (Pen. Code � 602, subd. (k).)
Existing law generally provides that a person commits one form
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of trespass to cultivated, fenced or posted land, where he or
she, without the written permission of the landowner, the
owner's agent or of the person in lawful possession of the land:
Willfully enters any lands under cultivation or enclosed by
fence, belonging to, or occupied by another person; or,
Willfully enters upon uncultivated or unenclosed lands where
signs forbidding trespass are displayed at intervals not less
than three to the mile along all exterior boundaries and at
all roads and trails entering the lands. (Pen. Code � 602.8,
subd. (a).)
Existing law provides that trespassing - in circumstances other
than where the person refuses a valid order to leave the
premises, destroys a no-trespassing or no-hunting sign, tampers
with any lock, or discharges a firearm - is an infraction or a
misdemeanor, as follows:
First offense is an infraction, punishable by a fine of $75.
(Pen. Code � 602.8, subd. (b)(1).)
Second offense on any contiguous land of the same owner is an
infraction, punishable by a fine of $250. (Pen. Code � 602.8,
subd. (b)(2).)
A third or subsequent offense on any contiguous land of the
same owner is a misdemeanor punishable by imprisonment in the
county jail not exceeding six months; by fine not exceed
$1000; or both. (Pen. Code � 602.8, subd. (b)(3).)
Existing law includes the following exceptions to the
trespassing law in Section 602.8:
A person who is conducting lawful union activities;
A person who is on the premises and engaging in activities
protected by the California or United States Constitution;
A person making lawful service of process; and,
An appropriately licensed person engaged in land surveying.
Existing law states that it is a misdemeanor punishable by six
months in county jail for every person who willfully enters any
lands under cultivation or enclosed by fence, belonging to, or
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occupied by, another, or entering upon uncultivated or
unenclosed lands where signs forbidding trespass are displayed
at intervals not less than three to the mile along all exterior
boundaries and at all roads and trails entering the lands
without the written permission of the owner of the land, the
owner's agent or of the person in lawful possession and:
Refuses or fails to leave the lands immediately upon being
requested by the owner of the land, the owner's agent or by
the person in lawful possession to leave the lands;
Tears down, mutilates, or destroys any sign, signboard, or
notice forbidding trespass or hunting on the lands;
Removes, injures, unlocks, or tampers with any lock on any
gate on or leading into the lands; or,
Discharges any firearm. (Pen. Code � 602, subd. (l).)
Existing law provides that any person who willfully enters and
occupies real property or structures of any kind without the
consent of the owner, the owner's agent, or the person in lawful
possession, is guilty of a misdemeanor. (Pen. Code � 602, subd.
(m).)
Existing law allows for prosecution against those who refuse or
fail to leave land, real property, or structures belonging to or
lawfully occupied by another and not open to the general public,
upon being requested to leave by a peace officer at the request
of the owner, the owner's agent, or the person in lawful
possession, and upon being informed by the peace officer that he
or she is acting with such authority. (Pen. Code � 602, subd.
(o).)
Existing law provides that any person who, without the written
permission of the landowner, the owner's agent, or the person in
lawful possession of the land, willfully enters any lands under
cultivation or enclosed by a fence, belonging to, or occupied
by, another, or who willfully enters upon uncultivated or
unenclosed lands where signs forbidding trespass are displayed
at intervals not less than three to the mile along all exterior
boundaries and at all roads and trials entering lands, is guilty
of a public offense punishable as follows:
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A first offense is an infraction, punishable by a fine of $75;
A second offense on the same land or any contiguous land of
the same landowner, without the permission of the landowner,
the landowner's agent, or the person in lawful possession of
the land, is an infraction punishable by a fine of $250; and,
A third or subsequent offense on the same land or any
contiguous land of the same landowner, without the permission
of the landowner, the landowner's agent, or the person in
lawful possession of the land, is a six-month misdemeanor.
(Penal Code Section 602.8, subd. (a).)
Existing law provides that a person is guilty of trespass where
the person enters private property, whether or not the property
is open to the public, and the following circumstances apply:
The person has been previously convicted of a violent felony
on the property, as defined, and;
The owner, the owner's agent, or lawful possessor, has
requested a peace officer to inform the person that the
property is not open to him or her;
The peace officer has informed the person that he or she may
not enter the property and informs the person that the notice
has been given at the request of the owner or other authorized
person;
A single specified notification shall be valid and enforceable
unless and until rescinded by the owner or other specified
authorized person; and,
This form of trespass is also committed where the person fails
to leave the property upon being asked to do so as provided in
the subdivision defining the crime. (Pen. Code �602, subd.
(t).)
This bill provides where the owner, owner's agent or person in
lawful possession of land or a structure seeks law enforcement
assistance in requesting that trespassers leave property that is
not open to the public and on which no-trespassing notice has
been posted, the request shall remain for one year.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
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2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to 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.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
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remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Trespass Arrest Authorization Forms authorize police
officers to arrest trespassers without waiting for
property owners to be present. Police officers cannot
arrest a trespasser without the written approval of
the property owner or agent. This can sometimes be
problematic for abandoned buildings, or businesses
that are closed in the evening for which the owner or
agent is not on site. In the past, police departments
have required property owners or their agents to send
a letter to the police department authorizing trespass
arrests on their property. By completing a simple
form, the property owner or agent may grant the police
department authorization to make a trespass arrest.
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Following submission of a request, a confirmation
email will be sent to the requester within 24 hours.
A reminder email will be sent five days prior to the
authorization expiration date, and again when the
authorization expires. Upon the six month expiration,
a new authorization form may be completed.
The extension of the Trespass Arrest Authorization
form is necessary so the police department doesn't
risk litigation. Extending arrest authorization forms
from 6 to 12 months not only strengthens the
authorization of the form, but it significantly
reduces the administrative time for the police
departments processing them. Additionally, extending
the arrest authorization allows owners to file the
form only once a year, while keeping properties free
from unwanted individuals for a period of 12 months.
2. Trespass Laws are Very Complicated
The trespass laws include nine separate sections, each with
different crimes with separate elements. The major trespass
section - 602 - has an entire alphabet's worth of subdivisions.
Most of the subdivisions in Section 602 define separate crimes,
typically each with slightly different elements than the other
subdivisions.
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Sponsors of trespass bills have noted to Committee staff that
law enforcement officers may appear to be reluctant or unwilling
to enforce existing trespass laws. It is not inconceivable that
the complexity of the laws may leave law enforcement officers
confused or uncertain about the application of the laws. Such
problems for law enforcement officers would be exacerbated if
officers do not often respond to trespass complaints.
3. Related Bill - SB 1295 (Block) would Indefinitely Extend Law
Enforcement Authority to Eject Trespassers from Property
Posted as Closed to the Public
Law Enforcement Assistance in Ejecting Trespassers where
Property is not Posted as Closed to the Public - Existing Law
This bill amends Penal Code Section 602, subdivision (o), which
defines a form of trespass that is committed where a person
ignores or defies a request that he or she leave land or a
structure that is not open to the public. Existing law limits
and regulates a property owner's ability to obtain law
enforcement assistance in removing trespassers. Specifically,
existing law provides that when property is not posted as being
closed to the public and the property owner<1> requests that law
enforcement demand that a trespasser leave the property, the
owner or agent must make a separate request each time he or she
seeks law enforcement assistance. Existing law includes an
exception under which a single request for law enforcement
assistance is valid for a specific time period, not to exceed 30
days, during which a fire hazard exists and the owner or owner's
agent is absent. For these provisions to apply, the property
need not be posted as closed to the public.
Law Enforcement Assistance in Ejecting Trespassers where
Property has been Posted as Closed to the Public in Existing Law
and as Amended in this Bill and SB 1295 (Block)
This bill and SB 1295 (Block) amend a provision in subdivision
---------------------------
<1> The owner's agent or person in lawful possession of the
property, such as a lessee, also may request law enforcement
assistance in preventing trespass or ejecting trespassers.
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(o) of Section 602<2> that applies where the property has been
posted as being closed to the public. Under existing law, a
single request for law enforcement assistance in ejecting
trespassers from property posted as closed to the public is
effective for six months. This bill extends law enforcement
authority to eject trespassers from posted land to one year. SB
1295 (Blocks) extends the authority indefinitely.
Indefinite or permanent law enforcement authority to execute the
owner's request that trespassers leave the property could be
problematic. Permanent law enforcement authority to eject
trespassers could result in confusion and unnecessary arrests if
the property changes hands and the new owner or renter does not
want law enforcement to request that persons on the property
leave. For example, in many beach communities substantial
conflicts about access to the shore have often arisen,<3> with
law enforcement officers caught in the middle. A new owner of
oceanfront property without a public easement for beach access
could have given permission for surfers to walk through the
property to reach a good surfing spot. However, police officers
- expecting that an owner's request to eject trespassers from
property posted as closed to the public would continue - could
arrest persons who did have permission to cross the property.
To address these concerns, the analysis of SB 1295 (Block)
recommended that the bill be amended to provide for certain and
clear expiration or cancellation of a request for law
enforcement assistance in ejecting trespassers. The author's
office is researching and weighing options to address the issues
presented by SB 1295. That bill is on Senate Third Reading.
4. Conforming this Bill and SB 1295 - Clear and Consistent
---------------------------
<2> This bill and SB 1295 (Block) must be conformed or one bill
will chapter-out the other.
<3>
http://www.nytimes.com/2005/06/05/fashion/sundaystyles/05beach.ht
ml?pagewanted=all&_r=0 ;
http://articles.latimes.com/2012/jan/16/local/la-me-malibu-201201
16 ;
http://scholarworks.calstate.edu/bitstream/handle/10211.2/1731/Da
vidsonRonald200510.pdf?sequence=3
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Trespass Remedies and Avoidance of Chaptering Issues
The author of this bill and the author of SB 1295 (Block) have
been in discussions about amending the bills to be consistent in
addressing concerns of property owners of land posted as closed
to the public. The authors also understand that the two bills
must be conformed to avoid chaptering-out problems.
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