Existing law prohibits unauthorized communications with inmates in state prison facilities and local jails, as specified. Existing law prohibits the giving or taking of any letter, writing, literature, or reading matter to or from an inmate, without proper authorization. A violation of these provisions is a misdemeanor.

This bill would make it a felony to knowingly possess, manufacture, or distribute in any state prison facility or local jail, as specified, prescribed communications that contain an overt or disguised request or instructions to cause harm, great bodily injury, or death to another person.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: April 19, 2016

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Makes it a felony to possess, manufacture, or distribute a "kite" in prison or jail containing instructions to harm or kill another. Specifically, this bill:

1. States that any person who knowingly possesses, manufactures, or distributes in any specified custodial setting, any writing, item, material, or electronic communication with knowledge that the communication contains an overt or disguised request or instructions to cause harm, great bodily injury, or death to another person is guilty of a felony.
   
2. Punishes this conduct by imprisonment in a county jail for two, three, or four years under Realignment, or by two, three, or four years in state prison if the defendant committed the crime while a prisoner in a state facility.

EXISTING LAW:

1. Provides that any person who, without the permission of the warden or officer in charge, communicates with any prisoner, or brings or takes from the institution a letter, writing, literature, or reading material is guilty of a misdemeanor. (Pen. Code, § 4570.)
   
2. States that an attempt to commit a crime consists of a specific intent to commit the crime and a direct (but ineffective) act toward committing that crime. (Pen. Code, § 21a.)
   
3. Punishes the crime of attempt as follows:
   
   1. If the crime attempted is punishable by imprisonment in the state prison, or by imprisonment in the county jail under Realignment, the person shall be punished by imprisonment in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed upon a conviction of the offense attempted;
      
   2. If the crime attempted is one in which the maximum sentence is life imprisonment or death, the person shall be punished by imprisonment in the state prison for five, seven, or nine years;
      
   3. If the crime attempted is punishable by imprisonment in a county jail, the person shall be punished by imprisonment in a county jail for up to one-half the term of imprisonment prescribed upon a conviction of the offense attempted;
      
   4. If the crime attempted is willful, deliberate, and premeditated murder, the person that shall be punished by imprisonment in the state prison for life with the possibility of parole; and,
      
   5. If the attempted murder is against a peace officer, a custodial officer, a custody assistant, or a nonsworn uniformed employee of a sheriff's department whose job entails the care or control of inmates in a detention facility, and the person who commits the offense knows or reasonably should know that the victim is a custodial officer, custody assistant, or nonsworn uniformed employee of a sheriff's department engaged in the performance of his or her duties, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. (Pen. Code, § 664.)
      
4. States that conspiracy occurs when two or more persons conspire to commit any crime, and one person commits an overt act in furtherance of the agreement. (Pen. Code, § 182.)
   
5. Punishes the offense of conspiracy as follows:
   
   1. Conspiracy to commit any felony (except specified felonies) is punished with same penalties that are imposed in connection with that felony;
      
   2. Conspiracy to commit two or more different felonies, all of which are part of the same conspiracy, faces the same penalties as the felony which has the most severe sentence; and,
      
   3. Conspiracy to commit murder is punished as first degree murder. (Pen. Code, § 182.)
      
6. States that a person who solicits another to commit or join in the commission of murder with the intent that the crime be committed, shall be punished for three, six, or nine years in state prison. (Pen. Code, § 653f, subd. (b).)
   
7. States that a person who solicits another to commit or join in the commission of specified crimes, including assault with a deadly weapon or by means of force likely to produce great bodily injury, shall be punished by as a misdemeanor, or as a felony under Realignment. (Pen. Code, § 653f, subd. (a).)
   
8. Provides that any person who willfully threatens to commit a crime which result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by electronic communication, is to be taken as a threat, even if there is no intent of actually carrying it out, which on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate process of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. (Pen. Code, § 422.)
   
9. 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, "Kites are commonly used to pass messages and tell other inmates what to do. Kites might also include population counts of members on a specific yard in a certain prison, information about which prisons are lax on security measures, details about rival gangs, and orders to commit a crime.
   
   "While kites are often confiscated, authorities cannot take action until a gang member carries out the order. Prosecutors can sometimes pursue a preemptive conspiracy charge, but they cannot tie the conspiracy to the author. Most convictions fall on the foot soldiers of gangs and not the leaders.
   
   "Strengthening penalties for kites with dangerous messages will help law enforcement identify gang leaders by disrupting the lines of communication between inmates and the outside world."
   
2. CDCR Policies on Kites: CDCR has informed this Committee that possession of kites can vary in range from serious threats to murder or injure someone, to less harmful communications. Thus, the way they are handled can vary from administrative to serious rules violations. Likewise, the disposition may also vary.
   
   Serious rules violations according to the CCR Title 15 section 3323 A-F, are either felonies or misdemeanors. For serious rules violations, if found guilty, the inmate may lose credits (up to 360 days for murder, for example), be subject to a SHU term, to loss of privileges, etc.
   
   Specifically, as to the kites at issue in this bill, those containing communications to cause bodily harm or death to another, CDCR policy includes the following:
   
   If an inmate is found distributing or in possession of a kite containing instructions to murder another, this inmate would be charged with the following: A Division “A-1” offense warranting credit forfeiture of 181–360 days; and murder, attempted murder, and solicitation of murder. Solicitation of murder shall be proven by the testimony of two witnesses, or of one witness and corroborating circumstances. This is a felony under the regulations (if found guilty) and would also be referred to the district attorney for consideration of prosecution.
   
   If an inmate has or distributes a kite containing instructions to perform battery with a weapon to cause serious injury, the inmate would be charged with A Division “A-1” offense warranting credit forfeiture of 181–360 days. The inmate could also be charged with battery causing serious injury; assault or battery with a deadly weapon or caustic substance; solicitation to commit one of these offenses, as well as behavior or activities that promotes, furthers, or assists a security threat group (STG), or demonstrates a nexus to the STG. Again, this would be a felony under the regulations (if found guilty), and would also be referred to the district attorney for consideration of prosecution.
   
   If an inmate is found in possession of or distributing a kite containing instructions to perform battery without serious injury on a non-prisoner he or she would be charged with a Division “B” Offense which would result in credit forfeiture of 121–150 days. Other charges would include battery on a peace officer not involving the use of a weapon; assault on a peace officer by any means likely to cause great bodily injury, battery on a non-prisoner, threatening to kill or cause serious bodily injury to a public official, their immediate family, their staff, or their staff’s immediate family, conspiracy to commit any one of these offenses, or solicitation to commit any one of these offenses. This conduct is a felony (if found guilty) and would be referred to the district attorney for consideration of prosecution.

Finally, if an inmate has or distributes a kite containing instructions to perform battery without serious injury without a weapon on a prisoner this would be considered a

division “D” offense under the regulations with potential credit forfeiture of 61–90 days. The inmate could also face charges of assault or battery on a prisoner with no serious injury, conspiracy to commit any division “D” offense, acting in a STG leadership role displaying behavior to organize and control other offenders, and conduct that promotes, furthers, or assists a STG or demonstrates a nexus to the STG. Administratively, this conduct is a misdemeanor (if found guilty). Most likely the conduct would not be referred to the district attorney, depending on the local agreement.

As noted by the fact that most conduct contemplated by the bill is referred to the local district attorney's office, the conduct this bill wishes to prohibit is already illegal. The inmate could be charged with attempt, conspiracy, or solicitation to commit the underlying offense described in the kite.

1. Recent Governor Veto Messages: Last year the Governor vetoed a number of bills which would have re-characterized conduct that was already criminal into a more specific crime. The Governor's veto message said:
   
   "Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.
   
   "Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded.
   
   "Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective."
   
   Similarly, this bill seeks to proscribe conduct that is already illegal. Depending on the facts and circumstances of the possession or distribution of the kite, a person or persons could be charged with conspiracy or attempt to commit the murder, battery, or assault, described in the bill. Additionally, if the intended target of the crime somehow came to possess the note, and reasonably sustained feared, a criminal threat could be charged.
   
2. Argument in Support: According to the California State Sheriff's Association, "Current law provides that the distribution of a kite is a misdemeanor offense. However, current law fails to acknowledge the versatile uses of kites, especially among gang members. While it is important that all kite communication be penalized there should be heightened penalties for kites that incite violence. Kites are often used by gangs to authorize a hit on an individual or to stage a riot. This malicious communication is harmful to the general population and should be thwarted with the appropriate penalties."
   
3. Argument in Opposition: According to Legal Services for Prisoners with Children, "The behavior this bill is trying to correct is already covered under a number of different crimes: conspiracy (California Penal Code § 182) and threat (Cal Pen § 422). Under the current conspiracy crime, a person can be convicted if he conspires with at least one additional person to commit any crime, and the punishment is the same as that crime which he conspired to commit. The crime of threat covers any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person. In almost all cases imaginable, this would overlap with the proposed new crime. California does not need new, repetitive crimes."
   
4. Related Legislation: AB 1877 (Linder) makes the first conviction of indecent exposure occurring in a prison or jail punishable as a felony in state prison.

REGISTERED SUPPORT / OPPOSITION:

Support

Association for Los Angeles Deputy Sheriffs
California Police Chiefs Association
California State Sheriffs' Association
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs' Association

Opposition

American Civil Liberties Union
California Attorneys for Criminal Justice

California Public Defenders Association
Legal Services for Prisoners with Children

Analysis Prepared by: