Existing law provides that any person who exposes his or her person, or the private parts thereof, in a public place or in any place where there are present other persons to be offended or annoyed by that act is guilty of a misdemeanor, except as specified. A 2nd or subsequent conviction of that act, or a first conviction of that act after a prior conviction for a specified lewd or lascivious act, is a felony punishable by imprisonment in the state prison.

Existing law provides that any person who exposes his or her person, or the private parts thereof, in a public place or in any place where there are present other persons to be offended or annoyed by that act is guilty of a misdemeanor, except as specified. A 2nd or subsequent conviction of that act, or a first conviction of that act after a prior conviction for a specified lewd or lascivious act, is a felony punishable by imprisonment in the state prison.

This bill would make technical, nonsubstantive changes to those provisions.

Date of Hearing:

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1877

Author:(Linder) – As Amended Ver:March 15, 2016

SUMMARY:

Increases the penalties for the crime of indecent exposure. Specifically, this bill:

1. Makes the first conviction of indecent exposure occurring in a prison or jail punishable as a felony in state prison.
2. Makes the first conviction of indecent exposure committed by a person required to register as a sex offender punishable as a felony in state prison.

EXISTING LAW:

1. Provides that a person who willfully and lewdly exposes his or her private parts in a public place or in any place where there are others present to be offended or annoyed is guilty of indecent exposure. (Pen. Code, § 314.)
   
2. Provides that person who willfully and lewdly procures, counsel, or assists any person to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself or herself to public view, or the view of another, such as is offensive to decency is guilty of indecent exposure. (Pen. Code, § 314.)
   
3. Provides that indecent exposure is punishable as follows:
   
   1. A first conviction is punishable as a misdemeanor, and second or subsequent conviction is a felony punishable in the state prison; except,
      
   2. A first conviction when committed after having entered an inhabited dwelling, trailer, or building without consent is an alternate felony/misdemeanor punishable in the county jail for up to one year, or in the state prison; and,
      
   3. A first conviction after a prior conviction for lewd acts with a minor is a felony punishable in state prison. (Pen. Code, § 314.)
      
4. Requires a person convicted of indecent exposure to register as a sex offender for life. (Pen. Code, § 290, subd. (c).)
   
5. States that if a person is convicted of one or more felonies committed while the person is confined in state prison, … and the law either requires the term to be served consecutively, or the court imposes consecutive terms, then the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. (Pen. Code, § 1107.1, subd. (c).)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 1877 seeks to protect female staff in prisons or county jails by strengthening the punishment for indecent exposure, which can be used as a weapon against those who provide services to inmates. The legislature should always aim to protect those who put their lives at risk to keep the public safe. By increasing the punishment from a misdemeanor to a felony when indecent exposure occurs in prison, or if the individual is a registered sex offender, the parties involved will have a higher incentive to prosecute such cases."
   
2. 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 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.)
   
   After continued litigation, on February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
   

• 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.

A recent report on the status of corrections notes:

"The Department’s total adult inmate population as of December 9, 2015, was 127,468, of which 112,510 were housed in the Department’s adult institutions, and the remaining

14,958 were housed in fire camps or contract beds. The December 9, 2015 institution

population was 136.0 percent of design capacity, or 1,212 inmates below the 137.5-percent

population cap based on currently constructed capacity. While the activation of three infill

facilities will add capacity of 3,267, fall 2015 population projections estimate the total inmate

population will increase to 131,092 by June 2020, an increase of 3,624 inmates over the

December 9, 2015 population. Therefore, without further population reduction measuresor capacity, the state will not be able to further reduce the use of contract beds, or close state-owned facilities." (An Update to the Future of California Corrections, January 2016, p. 25, <http://www.cdcr.ca.gov/Blueprint-Update-2016/An-Update-to-the-Future-of-California-Corrections-January-2016.pdf>.)

In other words, the state needs a “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).) However, the prison population is currently projected to increase.

CDCR has provided this Committee the following data regarding the number of indecent exposure incidents at its institutions:

This bill also applies to inmates in jails. As written, the bill would apply to pre-trial detainees and persons serving a sentence under realignment. So, presumably the number of felony convictions which would mandate a state prison sentence could be much higher than the numbers provided by CDCR. Given the high number of these incidents which occur annually, this bill raises concerns for maintaining a durable solution to prison overcrowding.

1. CDCR Policies on Indecent Exposure: In 2007, CDCR enacted new policies for handling incidents of indecent exposure by inmates after a female officer sued the department and the court determined that CDCR could be held liable for failure to correct a hostile work environment by failing to take prompt and reasonable corrective action to address inmate misconduct. (See Freitag v. Ayers (2006) 468 F.3d 528.)
   

CDCR's Department Operations Manual states, "An inmate who engages in indecent exposure or sexual disorderly conduct shall be subject to a variety of security measures in an attempt to identify, prevent, reduce, and eliminate the opportunity to repeat the behavior." (Department Operations Manual, Article 25, § 52100.2) These security measures are "designed to decrease the opportunity for the inmate to repeat the behavior and/or minimize the impact that the behavior has on prison staff and others." There are two types of security measures: immediate security precautions and post-disciplinary restrictions. (Id. at § 52100.4.)

Security precautions include: (1) designating a cell door with a yellow placard, window covering, or other device to both alert staff to an inmate's propensity to engage in the prohibited conduct, as well as to limit the inmate's ability to see staff while engaging in the misconduct; (2) requiring the inmate to wear an exposure control jumpsuit to limit the inmate's ability to expose himself; (3) temporary restrictions from the yard or other common areas which may provide a venue for the behavior; and (4) substitution of setting to reduce the possibility of the behavior impacting staff, such as placement in administrative segregation. (Id. at § 52100.4.) What security measures are used and their duration, depends on whether the indecent exposure occurred in a common area as opposed to a cell, and whether the offense is a first or subsequent offense. However, yellow cell front coverings are required for all indecent exposure incidents. (Id. at § 52100.4.)

In addition to the security measures, an inmate who commits an act of indecent exposure is also subject to disciplinary restrictions after a finding of guilt in a disciplinary hearing. An inmate with a pending disciplinary hearing must be placed in an administrative segregation unit, and if found guilty of indecent exposure through a disciplinary hearing can be placed in a secured housing unit. The inmate will also be subject to privilege losses. A first offense of indecent exposure can result in a loss of privileges, including canteen, appliance, vendor packages, phone, and personal property, of up to 90 days. A second offense can result in a loss of any or all of those privileges for up to 180 days. (Id. at § 52100.4.) In addition to loss of privileges, an inmate who commits indecent exposure may be subject to a loss of credits. Further, a guilty finding for indecent exposure on a disciplinary report may result in a prohibition of family visits, which may be permanent. (Id. at § 52100.4.)

Finally, CDCR requires that all indecent exposure incidents be referred to the district attorney. This referral is to include an explanation of the reason why indecent exposure misdemeanor cases require prosecution, namely to obtain felony convictions for repeat offenders. (Id. at § 52100.4.) CDCR has recognized that historically district attorneys have not readily prosecuted misdemeanors committed by inmates in prison. Therefore, CDCR aggressively seeks prosecution and conviction of the misdemeanor charge, thereby allowing future violations to be charged as felonies.

1. Argument in Support: According to the Sacramento County District Attorney's Office, "Across the state, in counties that have prisons in their jurisdictions, there have been an explosion of indecent exposure (Penal Code section 314) cases occurring in state prisons. In Sacramento County alone, our office currently reviews 15-20 cases almost every week. In many cases, the inmates target female staff members, usually civilians like nurses or psych technicians, occasionally psychiatrists and female correctional officers, to humiliate and intimidate them by standing on their bunks or toilets to force the female staff to see them masturbating. It is particularly bad when staff are assigned to watch an inmate, even after having been the victim of indecent exposure earlier in the same day from the same inmate."
   
2. Argument in Opposition: According to the California Public Defenders Association, "AB 1877 would amend Penal Code section 314 to punish a first conviction of lewd conduct in a county jail or prison more harshly than such lewd conduct in public places. It would increase the penalty from a six month misdemeanor to a state prison felony.
   
   "Under existing law, Penal Code section 314 punishes a first conviction with a maximum of six months in county jail. Second or subsequent convictions are punishable by state prison.
   
   "Although county jail and state prison employees may be confronted by lewd conduct by pretrial detainees and prisoners more often than the general public, they also may be less sensitized to such conduct. Additionally, there are procedures to write up inmates for rule breaking that deal with such behavior with lesser sanctions, i.e., loss of good conduct credits for 115 Rule Violations in state prison.
   
   "Moreover, many of the individuals in California jails and prisons are mentally ill.…
   
   "Such mentally ill individuals are more likely to act out and be unable to conform their behaviors. Punishing the mentally ill for being mentally ill by charging them with a felony for a non-violent offense is bad public policy.…
   
   "The federal court order mandating that California comply with caps on its prison population remains in effect. AB 1877 undercuts the state's effort to comply with that order for no appreciable gain."
   
3. Related Legislation: AB 2803 (Salas) makes it a felony for a prisoner to distribute in any state prison facility or local jail prescribed communications that contain an overt or disguised request or instructions to cause harm, great bodily injury, or death to another person. AB 2803 is pending hearing in this Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Amador County District Attorney
California District Attorneys Association
Kern County District Attorney
Sacramento County District Attorney

Opposition

American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744

1. The referrals to the district attorneys are higher than the total number is because one incident can involve multiple victims or multiple defendants. ↑