BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 708 (Nielsen)
As Introduced February 22, 2013
Hearing date: April 23, 2013
Penal Code
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CRIMINAL JUSTICE REALIGNMENT:
PRISON ONLY TERMS FOR DEFENDANTS WITH THREE PRIOR FELONIES
HISTORY
Source: Author
Prior Legislation: AB 109 (Committee on Budget) Ch. 15, Stats.
2011
AB 117 (Committee on Budget) Ch. 39, Stats. 2011
Support: California District Attorneys Association; Crime
Victims United of California; Golden State Bail Agents
Association
Opposition:Taxpayers for Improving Public Safety; Legal Services
for Prisoners with
Children; ACLU; California Public Defenders
Association; Friends Committee on Legislation
KEY ISSUE
SHOULD ANY PERSON WHO IS CURRENTLY CONVICTED OF A FELONY AND WHO HAS
AT LEAST THREE PRIOR FELONY CONVICTIONS SERVE HIS OR HER SENTENCE IN
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PRISON?
PURPOSE
The purpose of this bill is to provide that any person convicted
of a felony who has been previously convicted of at least three
felonies shall serve his or her sentence in prison, regardless
of whether the defendant would otherwise be subject to a felony
jail term, as specified.
Existing law provides that numerous, specified felonies are
punishable by a term of imprisonment in county jail - not prison
- unless the crime of conviction or the defendant's criminal
history makes the defendant ineligible for serving his or her
felony sentence in jail. (Pen. Code � 1170 subd. (h).)
Existing law provides, however, that certain felons are
categorically prohibited from serving an executed felony
sentence in county jail. These include the following persons:
The defendant has a prior or current felony conviction
for:
o a serious felony described in subdivision (c) of
Section 1192.7, or
o a violent felony described in subdivision (c) of
Section 667.5;
The defendant has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a
serious or violent felony in California, as specified;
The defendant is required to register as a sex offender;
or
The defendant is convicted of a crime and as part of the
sentence receives an aggravated while collar crime
enhancement, as specified. (Pen. Code � 1170, subd.
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(h)(3).)
Existing law provides that courts are authorized to impose an
executed jail felony sentence as follows:
For a full term in custody as determined in accordance
with the applicable sentencing law. For example, a term of
16 months, two years or three years for grand theft.
The court may impose a term in accordance with the
applicable sentencing law, but may exercise discretion to
suspend execution of a concluding portion of the term
o During the suspended portion of the term 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.
o The period of supervision is mandatory and
shall be for the remaining un-served portion of the
term.
o The period of supervision may not be earlier
terminated except by court order.
o During the period when the defendant is under
such supervision, the defendant shall be entitled to
only actual time credit against the term of
imprisonment imposed by the court, except for time
actually spent in custody. (Pen. Code � 1170, subd.
(h)(5)
o The court, through a hearing process, may
revoke supervision or modify the terms of supervision.
(Pen. Code �� 1203.2-1203.3.)
This bill provides that any defendant who is convicted of a
felony and who has been previously been convicted of three or
more felonies shall serve his or sentence in state prison.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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 which 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. ROCA necessitated many hard and
difficult decisions for the Committee.
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 issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part 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, who opposed the state's motion, argue in
part 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 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
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"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."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
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:
Under Realignment, sex offenders and criminals
convicted of serious, violent or other specifically
enumerated felonies continue to be sentenced to state
prison. All other felons, including drug dealers,
commercial burglars and professional car thieves are
now subject to the jurisdiction of the counties no
matter how many crimes they have committed. As a
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consequence, hundreds of felons with terms greater
that five years have already been sentenced to county
jurisdiction. Many of these felons have extensive
criminal histories including prior prison terms and
convictions for assault and firearms violations. Even
if cells were available, county jails are not equipped
for career criminals.
SB 708 adds habitual felons to the list of offenders
who are excluded from serving their term under county
supervision. Instead, any person convicted of a
felony-who has already been convicted of three or more
prior felonies-will be required to serve his/her
sentence in a state prison.
2. Application of this Bill as Drafted
As currently drafted, this bill would require that any defendant
who is convicted of a crime in the current case and who has been
previously convicted of three or more felonies serve his or her
term in state prison. The bill does not require that a defendant
be prosecuted for and convicted of a felony on three separate
occasions. A defendant who commits more than one crime in a
single act or transaction cannot be punished more than once, but
he or she may be convicted of as many crimes as technically
occurred in the act or transaction.
It is not uncommon that a single act could violate multiple
criminal statutes. For example, a defendant who takes $1,000
from a victim who is a dependent adult over the age of 65 could
be charged with grand theft under the general grand theft
statute in Penal Code Section 487, theft from an elderly person
and theft from a dependent adult. The defendant could only be
sentenced for one crime - specifically, the crime that carries
the greatest penalty - but could be convicted of three separate
felonies. This defendant's behavior and record would be much
less egregious than a defendant who has been convicted of theft
from an elderly person on three separate occasions.
Thus, this bill could require prison terms for defendants with
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relatively minimal criminal records and to defendants with very
extensive criminal records. If the author intends that this
bill apply to defendants who truly have committed three separate
felonies, he may wish to consider amending the bill either to
provide that the convictions were from separate prosecutions, or
to provide that the prior felonies were separately punishable.
SHOULD THIS BILL BE AMENDED TO PROVIDE THAT A CONVICTED FELON IS
INELIGIBLE FOR A JAIL SENTENCE WHERE HE OR SHE WAS PREVIOUSLY
CONVICTED OF THREE FELONIES THAT WERE SEPARATELY PUNISHABLE?
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3. Prison Population and Cost Considerations
This bill would result in more felons serving their custodial
time in prison. Committee staff is unaware of data estimating
the impact of this particular bill on the prison population and
the state's ability to make progress on meeting the reductions
ordered by the court in Plata. The overall estimated impact of
realignment on the state's prison population is noted in a
Legislative Analyst's Office's February 2013 analysis of the
Governor's budget proposals:
The average daily prison population is projected to be
about 129,000 inmates in 2013-14, a decline of roughly
3,600 inmates (3 percent) from the estimated
current-year level. This decline is largely due to
the 2011 realignment of lower-level felons from state
to local responsibility. Although decreasing, the
projected inmate population for 2013-14 is still about
3,200 inmates higher than was projected by CDCR in
spring 2012. According to the department, this is due
in part to higher-than-expected admissions to state
prison.<1>
As noted above, on April 11th of this year, the federal court
reasserted its order that California reduce its prison
population to 137.5 percent of capacity by the end of this year.
With respect to prison population, members may wish to consider
the following questions:
How would this bill affect the prison population?
How would this bill affect the ongoing federal
litigation described above and, in particular, the ability
of the state to meet the court orders concerning reductions
in California's prison population?
As part of realignment the state shifted certain revenues to
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<1> Legislative Analyst's Office, The 2013-14 Budget:
Governor's Criminal Justice Proposals 9Feb. 15, 2013;
http://www.lao.ca.gov/analysis/2013/crim_justice/criminal-justice
-proposals/criminal-justice-proposals-021513.aspx
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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. The Governor's budget
includes an estimate of revenues projected to go to
local governments over the next few years. These
estimates are generally in line with prior estimates.
. . . (T)otal funding for the criminal justice
programs realigned is expected to increase from $1.4
billion in 2011-12 to $2.2 billion in 2013-14.<2>
This bill does not make any changes to the funding realigned
pursuant to realignment and guaranteed to local governments by
Proposition 30. Members may wish to discuss the fiscal
implications of this bill, including:
What are the implications of this bill with respect to
the fiscal guarantees assured in Proposition 30, passed
last November?
What are the implications of this bill with respect to
the state's General Fund?
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<2> Id.
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