Existing law, as amended by Proposition 21 as approved by the voters at the March 7, 2000, statewide primary election and by Proposition 83 at the November 7, 2006, statewide general election, classifies certain felonies as violent felonies for purposes of various criminal sentencing schemes. Existing law imposes an additional one-year term for a felony and a 3-year term for a violent felony for each prior separate prison term served for a violent felony. Existing law, as added by Proposition 184, adopted November 8, 1994, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, also imposes additional years of imprisonment in state prison on a person who commits a violent felony and has been convicted of, or who has a prior conviction for, a violent felony. The Legislature may amend the above-specified initiative statutes by a statute passed in each house by a ²/₃ vote.

This bill would additionally define as violent felonies assault with a deadly weapon or force likely to cause great injury, domestic violence, child abuse, hate crimes, human trafficking involving a minor, and exploding a destructive device, among other crimes, as specified, thereby amending Proposition 36 by adding to the list of violent felonies that can be prosecuted as a 3rd strike. By changing the definition of a 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.

Existing law establishes the California-Mexico Border Relations Council in state government, and prescribes the membership and functions and duties of the council with respect to coordinating the activities of state agencies, including environmental agencies, that are related to cross-border programs, initiatives, projects, and partnerships that exist within state agencies, and state and local efforts that are of concern between California and Mexico. Existing law also authorizes the Office of California-Mexico Affairs to develop better relations with Mexico by coordinating with state agencies to foster economic cooperation.

It is the intent of the Legislature to enact legislation that would address border policy between California and Mexico.

Date of Hearing: April 25, 2017

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Adds a number of offenses to the list of violent felonies and specifies that they are "strikes" under California's Three-Strikes Law. Specifically, this bill adds the following offenses, if convicted as a felony, to the list of violent felonies and specifies that they are to be treated as "strikes" under California's Three-Strikes Law:

1. Assault with a deadly weapon other than a firearm.
   
2. Assault by means of force likely to produce great bodily injury.
   
3. Discharging a firearm at an inhabited location.
   
4. Domestic violence resulting in a traumatic condition.
   
5. Corporal punishment or injury of a child.
   
6. Crimes with a hate crime enhancement.
   
7. Arson of an uninhabited or a structure or forest land with no bodily injury.
   
8. Human trafficking of a minor.
   
9. Possessing, exploding, or igniting a destructive device.
   
10. Assault on a custodial officer.
    
11. Battery with serious bodily injury.
    
12. Solicitation to commit murder.
    
13. Active participation in a criminal street gang.

EXISTING LAW:

1. Defines a "violent felony" as any of the following (Pen. Code § 667.5(c).):
   
   1. Murder or voluntary manslaughter;
      
   2. Mayhem;
      
   3. Rape or spousal rape accomplished by means of force or threats of retaliation;
      
   4. Sodomy by force or fear of immediate bodily injury on the victim or another person;
      
   5. Oral copulation by force or fear of immediate bodily injury on the victim or another person;
      
   6. Lewd acts on a child under the age of 14 years, as defined;
      
   7. Any felony punishable by death or imprisonment in the state prison for life;
      
   8. Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, or any felony in which the defendant has used a firearm, as specified;
      
   9. Any robbery;
      
   10. Arson of a structure, forest land, or property that causes great bodily injury;
       
   11. Arson that causes an inhabited structure or property to burn;
       
   12. Sexual penetration accomplished against the victim's will by means of force, menace or fear of immediate bodily injury on the victim or another person;
       
   13. Attempted murder;
       
   14. Explosion or attempted explosion of a destructive device with the intent to commit murder;
       
   15. Explosion or ignition of any destructive device or any explosive which causes bodily injury to any person;
       
   16. Explosion of a destructive device which causes death or great bodily injury;
       
   17. Kidnapping;
       
   18. Assault with intent to commit mayhem, rape, sodomy or oral copulation;
       
   19. Continuous sexual abuse of a child;
       
   20. Carjacking, as defined;
       
   21. Rape or penetration of genital or anal openings by a foreign object;
       
   22. Felony extortion;
       
   23. Threats to victims or witnesses, as specified;
       
   24. First degree burglary, as defined, where it is proved that another person other than an accomplice, was present in the residence during the burglary;
       
   25. Use of a firearm during the commission of specified crimes; and,
       
   26. Possession, development, production, and transfers of weapons of mass destruction.
       
2. Provides that when a defendant is convicted on a new felony offense and has a prior conviction for a specified violent felony, the defendant shall receive a consecutive three-year term for each prior separate prison term served by the defendant where the prior offense was one of the specified violent felonies specified, unless the defendant meets certain conditions. (Pen. Code § 667.5, subd. (a).)
   
3. States that a conviction of a violent felony counts as a prior conviction for sentencing under the two and three strike law. (Pen. Code § 667.)
   
4. Provides that if a defendant is convicted of a felony offense and it is pled and proved that the defendant has been convicted of one prior serious or violent offense as defined, the term of imprisonment is twice the term otherwise imposed for the current offense. (Pen, Code § 667
   
5. Specifies that notwithstanding any other law, any person who is convicted of a felony that is contained in the "violent" felony list shall accrue no more than 15% of work-time credit. (Pen. Code § 2933.1, subd. (a).)
   
6. Defines a "serious felony" as any of the following: murder or manslaughter; mayhem; rape; sodomy; oral copulation; lewd acts on a child under the age of 14; any felony punishable by death or imprisonment for life; any felony in which the defendant inflicts great bodily injury; attempted murder; assault with the intent to commit rape or robbery; assault with a deadly weapon or instrument on a peace officer; assault by a life prisoner on a non-inmate; assault with a deadly weapon by an inmate; arson; exploding a destructive devise with the intention to commit murder or great bodily injury; first-degree burglary; armed robbery or bank robbery; kidnapping; holding of a hostage by a person confined to a state prison; attempting to commit a felony punishable by death or life in prison; any felony where the defendant personally used a dangerous or deadly weapon; selling or otherwise providing heroin, PCP or any type of methamphetamine-related drug; forcible sexual penetration; grand theft involving a firearm; carjacking; assault with the intent to commit mayhem, rape, sodomy or forcible oral copulation; throwing acid or other flammable substance; assault with a deadly weapon on a peace officer; assault with a deadly weapon on a member of the transit authority; discharge of a firearm in an inhabited dwelling or car; rape or sexual penetration done in concert; continuous sexual abuse of a child; shooting from a vehicle; intimidating a victim or witness; any attempt to commit the above-listed crimes except assault or burglary; and using a firearm in the commission of a crime and possession of weapons of mass destruction. (Pen. Code § 1192.7(c).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "There have been approximately 170,000 violent crimes committed in California this year. After several decades of decline, armed robberies, rapes, homicides and other violent crimes are on the upswing. FBI released its annual state-by-state breakdown on crime, revealing that in 2015, California saw a 7.6 percent increase in violent acts from the previous year to 166,883, or 426.3 per 100,000 population. That was 2 1/2 times the 3 percent national increase, the 13th highest of any state. California’s overall violent crime rate is also the nation’s 13th highest. To simply redefine what it means to be violent in order to address these staggering facts compromises the safety of all Californians."
   
2. "Violent" Felony Designation: This bill adds 14 new offenses to the list of "violent" crimes that causes an offender to receive fewer "custody credits" toward release on parole. Inmates who receive convictions for violent felonies must serve 85% of their time in custody. Additionally, these new offenses will be considered "strikes" for purposes of California's Three Strikes Law. In essence, any person who is convicted one of these offenses after committing two prior strikes can be sentenced to 25-years to life in state prison.
   
3. Three Strikes Implications: In general, violent felonies on the violent felonies list are considered "strikes" for purposes of California's Three Strikes Law. However, Proposition 36, which was passed by California voters on November 6, 2012 specifies that only the crimes that were included in the "violent felonies" list prior to November 7, 2016 shall be treated as strikes for purposes of the three-strikes law.

"Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after November 7, 2012, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on November 7, 2012." (Pen. Code § 667.1.)

This bill seeks to modify the date in Proposition 36 to 2018. As a result, the offenses in this bill, and any other offenses added to the violent felonies list prior to 2018 will become "strikes" under California's Three Strikes Law. This committee recently passed AB 27 (Melendez), and AB 67 (Rodriguez) which added various offenses related to human trafficking and rape of unconscious or intoxicated persons to the violent felony list. If this bill passes, all of those bills will likely be considered strikes as well because the bills may be double-joined.

1. Wobblers (or Alternate Felony/Misdemeanors): This bill, as drafted, would add seven offenses that can be charged alternatively as either felonies or misdemeanors to the list of violent felonies. The bill specifies that they should only count as violent felonies if they are charged as a felony. The following offenses are alternate felony/misdemeanors or wobblers that are being added to the violent felonies list:
   
   1. Assault with a deadly weapon other than a firearm.
      
   2. Assault by means of force likely to produce great bodily injury.
      
   3. Discharging a firearm at an inhabited location.
      
   4. Domestic violence resulting in a traumatic condition.
      
   5. Corporal punishment or injury of a child.
      
   6. Crimes with a hate crime enhancement.
      
   7. Assault on a custodial officer.
      
   8. Battery with serious bodily injury.
      
   9. Active participation in a criminal street gang.

The violent felony list contains the most serious crimes under California law, including crimes such as murder, attempted murder, mayhem, forcible sex crimes, arson, and robbery. The violent felony list does not contain any crimes classified as alternate felony/misdemeanors as they are not deemed to be of a serious enough nature if they can alternatively be charged as a misdemeanor. To add the alternate felony/ misdemeanor offense, if charged as a felony to the list of violent felonies would be unprecedented.

1. Proposition 57: On November 8, 2016 the voters of California approved Proposition 57. Proposition 57 was known as the "Parole for Non-Violent Criminals and Juvenile Court Trial Requirements Initiative." The initiative allows parole consideration for non-violent felons. It also authorizes sentence credits for rehabilitation, good behavior, and education. Additionally the proposition provides juvenile court judge decides whether juvenile will be prosecuted as adult.

As a result of the initiative, state prison inmates convicted of non-violent felony offenses are considered for early release. The state prison system may award additional sentencing credits to inmates for good behavior and approved rehabilitative or educational achievements. Additionally, minors must have a hearing in juvenile court before they can be transferred to adult court.

The California Department of Corrections (CDCR) has been tasked with drafting regulations on how the parole process will be implemented. The initiative specifies that early parole may only be given to non-violent offenses. However, the initiative does not specify what is considered a non-violent felony. Advocates for this legislation want the offense included in this bill to be considered violent felonies by including them on the violent felonies list as codified in the penal code. It is not clear however if that is the standard that CDCR is going to employ.

1. 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.
   
   CDCR’s February 2017 monthly report on the prison population notes that the in-state adult institution population is currently 114,124 inmates, which amounts to 134.1% of design capacity.  This is an increase of 1.1% from February of last year.  Additionally, there are still 4,400 prisoners being housed out of state.  (http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly/TPOP1A/TPOP1Ad1702.pdf )
   
   The Governor’s January proposed budget for 2017-2018 anticipates that “[t]he adult inmate average daily population is projected to decrease from 129,015 in 2016-17 to 128,159 in 2017-18, a decrease of 856 inmates, or 0.7 percent.  The average daily parolee population is projected to increase from 43,686 in 2016-17 to 44,761 in 2017-18, an increase of 1,075 parolees, or 2.5 percent.  The decrease in the adult inmate population is due to a projected reduction related to the implementation of Proposition 57, the Public Safety and Rehabilitation Act of 2016, which offsets a projected increase in felon admissions.”  (http://ebudget.ca.gov/budget/2017-18/#/Department/5225)
   
   Thus, while CDCR is currently in compliance with the three-judge panel’s order on the prison population, the state needs to maintain 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).)

The provisions of this bill not only specify that anyone convicted of these offenses added to the violent felonies list would have to spend 85% of their sentence in custody, but the legislation also adds "strikes" to the list of offenses that can trigger a 25-years to life sentence. This bill would most definitely exacerbate California's prison overcrowding crisis.

1. Probable Drafting Error: The bill adds Pen. Code, § 653f to the list of violent felonies while referencing "solicitation to commit murder." However, Pen. Code § 653f is a general section for solicitation to commit a wide range of offenses. If the author's intent is to add solicitation to commit murder to the list of violent felonies, the cross reference should refer to Pen. Code, § 653f, subd. (b).
   
2. Argument in Opposition: According to the California Public Defenders Association, "this bill would add 13 new felonies to the list of violent felonies in Penal Code section 667.5, subdivision (c). Many of these felonies strain the common meaning of violent. To take just one example, felony burglary might be nothing more than entry of an empty shed in a distant field.

"More important, this bill would, in effect, overturn much of Proposition 57, the Public Safety and Rehabilitation Act of 2016, passed by a landslide 64.5% of the voters at the November 2016 General Election. Proposition 57 added to California Constitution Article 1 a new section 32, directing the California Department of Corrections and Rehabilitation (CDCR) to write regulations providing parole consideration for prisoners convicted of “nonviolent offenses” when they have completed the full term for their primary offense.…” CDCR’s proposed regulations have already been approved by the Office of Administrative Law as emergency regulations. They are at CDCR’s web site, at http://www.cdcr.ca.gov/proposition57/docs/prop-57- regs-text.pdf. The definition of nonviolent offense is at proposed Cal. Code of Regs. tit. 15 section 3490.

"None of AB 1570’s proposed 13 new so-called violent felonies would qualify as violent under CDCR’s regulations. But if they are added to the statutory list of violent felonies, CDCR could no longer give prisoners convicted of them parole consideration when the primary term is completed. AB 1570 would thus partially undo what the voters overwhelmingly wanted only last November. The legislature should not thwart the will of the voters so recently and so overwhelmingly proclaimed.

"Moreover, AB 1570 is not needed. Presumably, a motivation for AB 1570 is to protect public safety by preventing parole consideration for these new categories, but CDCR’s proposed regulations already do that. Proposed new 15 Cal. Code of Regs. tit. 15, section 3492, and other regulations, require extensive public safety screening; and CDCR must 'certify that these regulations protect and enhance public safety.'

"AB 1570 adds to the complexity of our Penal Code, includes offenses that are not violent, and partially undoes the will of voters. For these reasons, CPDA respectfully urges your 'No' vote on AB 1570 when it comes before you in Assembly Public Safety Committee."

1. Related Legislation:
   1. AB 27 (Melendez) adds specified sexual assault offenses to the list of violent felonies codified in the Penal Code. AB 27 has been referred to the Assembly Appropriations Committee.
      
   2. AB 67 (Rodriguez) adds human sex trafficking and specified sexual assault offenses to the list of violent felonies codified in the Penal Code. AB 67 has been referred to the Assembly Appropriations Committee.
      
   3. AB 197 (Kiley) adds a number of offenses to the list of violent felonies and specifies that they are "strikes" under California's Three-Strikes Law. AB 197 was pulled by the author from a hearing in this committee.
      
   4. SB 75 (Bates) adds vehicular manslaughter, human trafficking involving a minor, assault with a deadly weapon, solicitation of murder, rape under various specified circumstances, and grand theft of a firearm as violent felonies for purposes of imposing specified sentence enhancements. The bill would also make conforming changes. SB 75 failed passage in the Senate Public Safety Committee.
      
   5. SB 652 (Nielsen) defines as a “violent felony” the unlawful possession of a firearm by a person previously convicted of a felony enumerated as a violent felony. SB 652 failed passage in the Senate Public Safety Committee.
      
   6. SB 770 (Glazier) adds human trafficking, elder and dependent adult abuse, assault with a deadly weapon, rape under specified circumstances, discharge of a firearm at an occupied building, and specified crimes against peace officers and witnesses, as violent felonies for purposes of the above specified sentence enhancements. SB 770 was head in Senate Public Safety Committee and no vote was taken. A further hearing is to be set.
2. Prior Legislation:
   1. AB 2888 (Low), Chapter 863, Statutes of 2016, prohibits judges from granting probation when specified felony sexual assault offenses, contained in this bill, are committed.
      
   2. SB 1269 (Galgiani), of the 2015-2016 Legislative Session, would have included human trafficking in the list of violent felonies, for which Three Strike sentencing, sentencing credit limits, enhancements for prior violent felony prison terms and other consequences apply. SB 1269 failed passage in the Senate Public Safety Committee.
      
   3. AB 60 (Jeffries), of the 2011-2012 Legislative Session, would have added felony battery on specified peace officers to the list of strikes under California's three-strikes law. AB 60 failed passage in the Assembly Public Safety Committee.
      
   4. AB 1188 (Pan), of the 2011-2012 Legislative Session, would have added four new offenses relating to child abuse to the list of "violent" felonies, and added five new offenses related to human trafficking and the abuse of a child to the "serious" felony list. AB 1188 failed passage in the Assembly Public Safety Committee.
      
   5. AB 16 (Swanson), of the 2009-2010 Legislative Session, would have added human trafficking to the list of serious and violent felonies codified in the penal code. AB 16 failed passage in the Assembly Appropriations Committee.
      
   6. SB 440 (Denham), of the 2009-2010 Legislative Session, added the crimes of child abuse likely to produce great bodily injury or death, physical child abuse, killing, mutilating, or torturing a domestic animal, elder abuse for which the defendant was incarcerated in state prison, and escape or attempted escape by force or violence to the lists of "serious felonies" as well as to the list of "violent felonies," as specified; and added the crimes of human trafficking, stalking, solicitation to commit murder, fleeing or attempting to elude a pursuing peace officer, willful flight or attempting to elude a pursuing peace officer, and felon in possession of a firearm, to the list of "serious felonies," as specified. SB 440 failed passage in the Senate Public Safety Committee.
      
   7. AB 303 (Spitzer), of the 2007-2008 Legislative Session, would have specified that gross vehicular manslaughter while intoxicated is a "strike" under the "Three Strikes Law". AB 303 failed passage in the Assembly Appropriations Committee.
      
   8. AB 426 (Galgiani), of the 2007-2008 Legislative Session, would have added human trafficking to the list of serious and violent offenses as codified under the California Penal Code. AB 426 failed passage in the Senate Public Safety Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

None

Opposition

American Civil Liberties Union

California Attorneys for Criminal Justice

California Public Defenders Association

Courage Campaign

Analysis Prepared by: