Existing law, added by Proposition 187, which was approved by the voters at the November 8, 1994, statewide general election, makes it a felony to manufacture or distribute false documents to conceal the true citizenship or resident alien status of another person. Proposition 187 also makes it a felony for a person to use false documents to conceal his or her true citizenship or resident alien status. The California Constitution authorizes the Legislature to amend an initiative statute by another statute that becomes effective only when approved by the electors.

This bill would amend Proposition 187 by repealing the above-referenced crimes. The bill would require the Secretary of State to submit the provisions of the bill that amend Proposition 187 to the electors for their approval at a statewide election. the November 3, 2020, statewide general election.

Existing law, added by Proposition 187, which was approved by the voters at the November 8, 1994, statewide general election, provides that any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a felony, and shall be punished by imprisonment in the state prison for 5 years or by a fine of $25,000. Proposition 187 authorizes the Legislature to substantively amend the proposition absent voter approval by a statute that furthers the purposes of the proposition and is passed with a ²/₃ vote of each house of the Legislature.

This bill would reclassify the offense as a felony or misdemeanor and reduce the duration of imprisonment under these provisions to a period of 16 months, or 2 or 3 years for a felony conviction or a period in the county jail for a misdemeanor conviction. The bill would reduce the maximum fine for a violation of the offense from $25,000 to $10,000.

Existing law, added by Proposition 187, which was approved by the voters at the November 8, 1994, statewide general election, provides that any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a felony, and shall be punished by imprisonment in the state prison for 5 years or by a fine of $25,000. Proposition 187 authorizes the Legislature to substantively amend the proposition absent voter approval by a statute that furthers the purposes of the proposition and is passed with a ²/₃ vote of each house of the Legislature.

This bill would reclassify the offense as a felony or misdemeanor and reduce the duration of imprisonment under these provisions to a period of 16 months, or 2 or 3 years for a felony conviction or a period in the county jail for a misdemeanor conviction.

 THIRD READING  

Bill No: AB 222

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/27/17

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/17

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 54-21, 6/1/17 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill repeals the maximum punishment for the crimes of manufacturing, distributing, selling, and using false documents to conceal his or her citizen status by amending provisions of Proposition 187.

ANALYSIS:

Existing law:

1. States that a felony is a crime that is punishable with death, by imprisonment in the state prison, or by imprisonment in a county jail not exceeding three years as a realigned felony, notwithstanding any other provision of law. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. (Pen. Code § 17)
2. Provides that every person who falsely makes, alters, forges, counterfeits, duplicates, or in any manner reproduces any driver’s license or identification card issued by a governmental agency with the intent that such driver’s license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in a county jail not exceeding three years as a realigned felony. (Pen. Code § 470a)
3. Provides that every person who displays, causes, permits to be displayed, or has in his or her possession any driver’s license or identification card, as specified, with the intent that the driver’s license or identification card be used to facilitate the commission of any forgery is punishable by imprisonment in a county jail for not more than one year, by imprisonment in a county jail not exceeding three years as a realigned felony. (Pen. Code § 470b)
4. Provides that a person who causes or permits to be displayed or have in his or her possession any canceled, revoked, suspended, fictitious, fraudulently altered, or fraudulently obtained driver’s license, shall be punished by imprisonment in a county jail not exceeding six months, or by fine not exceeding $1,000, or by both fine or imprisonment. (Veh. Code § 14610, subd. (a)(1).)
5. Provides that a person who manufactures or sells an identification document substantially similar, or that purports to confer the same privileges as, the drivers’ licenses issued by the Department of Motor Vehicles, shall be punished by a fine not exceeding $1,000, and 24 hours of community service if the person is not employed or is not attending school, as well as imprisonment not exceeding one year, or by both fine and imprisonment. (Veh. Code § 14610.1)
6. Provides that a person who causes or permits to be displayed or have in his or her possession any canceled, fictitious, fraudulently altered or obtained identification card shall be punished by fine not exceeding $1,000, or by imprisonment in a county jail not exceeding six months, or by both fine and imprisonment. (Veh. Code § 13004)
7. Provides that a person who manufactures, distributes, or sells false documents to conceal the true citizenship or resident alien status of another person is guilty of a realigned felony, a fine of $75,000. (Pen. Code § 113)
8. Provides that any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a realigned felony, or by a fine of $25,000. (Pen. Code § 114)

This bill:

1. Repeals Penal Code Section 113 by removing the existing mandatory sentence of a five year period of imprisonment, or the fine of $75,000, for the conviction of the manufacturing, distribution, or selling false documents to conceal the true citizenship or resident alien status of another person.
2. Repeals Penal Code Section 114 by removing the existing mandatory sentence of a five year period of imprisonment, or the fine of $25,000, for the conviction of the utilization of false documents to conceal a person’s citizenship or resident alien status.
3. Amends Proposition 187, by repealing Penal Code Section 113 and 114, an initiative statute approved by the voters at the November 8, 1994 statewide general election, and shall only become effective when submitted to and approved by the voters at a statewide election.
4. Specifies that the Secretary of State must submit the provisions of this bill to the voters for their approval during the November 2020 statewide general election.

Background

According to the author:

In 1994, voters passed Proposition 187, a largely unconstitutional attempt to fight the perceived ills of illegal immigration and punish the undocumented. It was designed to prevent undocumented immigrants from receiving public benefits, including social services, health care services, and public education, and it required various agencies to report suspected undocumented immigrants to various levels of state and federal law enforcement. The measure also enacted PC §114 to make it a felony, punishable by five years in prison or a $25,000 fine, to use false citizenship or residence documents to conceal one’s country of origin or resident status

Pursuant to the provision enacted above by Proposition 187, existing law provides for two separate and unequal sentences for individuals caught using false or forged identity documents, based solely upon the individual in question.

In context: An undocumented individual who purchases a fake driver’s license and social security card so that he or she can work or simply avoid deportation is prosecuted and subject to felony and a sentence of five years in prison or a $25,000 fine. However, an underage college student who purchases that same driver’s license to buy beer is prosecuted and subject to a misdemeanor or a felony, and is subject to a range of sentencing options.

This bill strikes Penal Code Sections 113 & 114, two unnecessary and anti-immigrant provisions of Prop. 187, both of deal with the use and manufacturing and falsifying documents. Upon passage of this bill, voters would be required to approve a complimentary ballot measure for this bill to take effect. District Attorneys will maintain the ability to prosecute an individual under existing penal code felony convictions – Penal Code Sections 470 (a),(b).

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Ballot costs: One-time printing and mailing costs (General Fund) in the range of $438,000 to $730,000 to the Secretary of State to place the measure on the ballot for the November 2020 statewide election.
• Incarceration savings: Costs savings (General Fund) to the Department of Corrections and Rehabilitation for every individual incarcerated in a county jail instead of state prison or sentenced to prison for a shorter term.

SUPPORT: (Verified 8/6/18)

California Public Defenders Association

Coalition for Humane Immigrant Rights

Conference of California Bar Associations

Los Angeles County District Attorney’s Office

National Association of Social Workers, California Chapter

Service Employees International Union

OPPOSITION: (Verified 8/6/18)

None received

ASSEMBLY FLOOR: 54-21, 6/1/17

AYES: Aguiar-Curry, Arambula, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Eggman, Frazier, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Lackey, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Travis Allen, Baker, Bigelow, Brough, Chen, Cunningham, Dahle, Flora, Fong, Gallagher, Harper, Kiley, Maienschein, Mathis, Mayes, Melendez, Obernolte, Patterson, Steinorth, Voepel, Waldron

NO VOTE RECORDED: Acosta, Cervantes, Choi, Muratsuchi, Quirk-Silva

Prepared by:

8/7/18 15:03:01

**** END ****

 THIRD READING  

Bill No: AB 222

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/27/17

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/17

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 54-21, 6/1/17 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill repeals the maximum punishment for the crimes of manufacturing, distributing, selling, and using false documents to conceal his or her citizen status by amending provisions of Proposition 187.

ANALYSIS:

Existing law:

1. States that a felony is a crime that is punishable with death, by imprisonment in the state prison, or by imprisonment in a county jail not exceeding three years as a realigned felony, notwithstanding any other provision of law. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. (Pen. Code § 17)
2. Provides that every person who falsely makes, alters, forges, counterfeits, duplicates, or in any manner reproduces any driver’s license or identification card issued by a governmental agency with the intent that such driver’s license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in a county jail not exceeding three years as a realigned felony. (Pen. Code § 470a)
3. Provides that every person who displays, causes, permits to be displayed, or has in his or her possession any driver’s license or identification card, as specified, with the intent that the driver’s license or identification card be used to facilitate the commission of any forgery is punishable by imprisonment in a county jail for not more than one year, by imprisonment in a county jail not exceeding three years as a realigned felony. (Pen. Code § 470b)
4. Provides that a person who causes or permits to be displayed or have in his or her possession any canceled, revoked, suspended, fictitious, fraudulently altered, or fraudulently obtained driver’s license, shall be punished by imprisonment in a county jail not exceeding six months, or by fine not exceeding $1,000, or by both fine or imprisonment. (Veh. Code § 14610, subd. (a)(1).)
5. Provides that a person who manufactures or sells an identification document substantially similar, or that purports to confer the same privileges as, the drivers’ licenses issued by the Department of Motor Vehicles, shall be punished by a fine not exceeding $1,000, and 24 hours of community service if the person is not employed or is not attending school, as well as imprisonment not exceeding one year, or by both fine and imprisonment. (Veh. Code § 14610.1)
6. Provides that a person who causes or permits to be displayed or have in his or her possession any canceled, fictitious, fraudulently altered or obtained identification card shall be punished by fine not exceeding $1,000, or by imprisonment in a county jail not exceeding six months, or by both fine and imprisonment. (Veh. Code § 13004)
7. Provides that a person who manufactures, distributes, or sells false documents to conceal the true citizenship or resident alien status of another person is guilty of a realigned felony, a fine of $75,000. (Pen. Code § 113)
8. Provides that any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a realigned felony, or by a fine of $25,000. (Pen. Code § 114)

This bill:

1. Repeals Penal Code Section 113 by removing the existing mandatory sentence of a five year period of imprisonment, or the fine of $75,000, for the conviction of the manufacturing, distribution, or selling false documents to conceal the true citizenship or resident alien status of another person.
2. Repeals Penal Code Section 114 by removing the existing mandatory sentence of a five year period of imprisonment, or the fine of $25,000, for the conviction of the utilization of false documents to conceal a person’s citizenship or resident alien status.
3. Amends Proposition 187, by repealing Penal Code Section 113 and 114, an initiative statute approved by the voters at the November 8, 1994 statewide general election, and shall only become effective when submitted to and approved by the voters at a statewide election.
4. Specifies that the Secretary of State must submit the provisions of this bill to the voters for their approval during the November 2020 statewide general election.

Background

According to the author:

In 1994, voters passed Proposition 187, a largely unconstitutional attempt to fight the perceived ills of illegal immigration and punish the undocumented. It was designed to prevent undocumented immigrants from receiving public benefits, including social services, health care services, and public education, and it required various agencies to report suspected undocumented immigrants to various levels of state and federal law enforcement. The measure also enacted PC §114 to make it a felony, punishable by five years in prison or a $25,000 fine, to use false citizenship or residence documents to conceal one’s country of origin or resident status

Pursuant to the provision enacted above by Proposition 187, existing law provides for two separate and unequal sentences for individuals caught using false or forged identity documents, based solely upon the individual in question.

In context: An undocumented individual who purchases a fake driver’s license and social security card so that he or she can work or simply avoid deportation is prosecuted and subject to felony and a sentence of five years in prison or a $25,000 fine. However, an underage college student who purchases that same driver’s license to buy beer is prosecuted and subject to a misdemeanor or a felony, and is subject to a range of sentencing options.

This bill strikes Penal Code Sections 113 & 114, two unnecessary and anti-immigrant provisions of Prop. 187, both of deal with the use and manufacturing and falsifying documents. Upon passage of this bill, voters would be required to approve a complimentary ballot measure for this bill to take effect. District Attorneys will maintain the ability to prosecute an individual under existing penal code felony convictions – Penal Code Sections 470 (a),(b).

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Ballot costs: One-time printing and mailing costs (General Fund) in the range of $438,000 to $730,000 to the Secretary of State to place the measure on the ballot for the November 2020 statewide election.
• Incarceration savings: Costs savings (General Fund) to the Department of Corrections and Rehabilitation for every individual incarcerated in a county jail instead of state prison or sentenced to prison for a shorter term.

SUPPORT: (Verified 9/1/17)

California Public Defenders Association

Coalition for Humane Immigrant Rights

Conference of California Bar Associations

Los Angeles County District Attorney’s Office

National Association of Social Workers, California Chapter

Service Employees International Union

OPPOSITION: (Verified 9/1/17)

None received

ASSEMBLY FLOOR: 54-21, 6/1/17

AYES: Aguiar-Curry, Arambula, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Eggman, Frazier, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Lackey, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Travis Allen, Baker, Bigelow, Brough, Chen, Cunningham, Dahle, Flora, Fong, Gallagher, Harper, Kiley, Maienschein, Mathis, Mayes, Melendez, Obernolte, Patterson, Steinorth, Voepel, Waldron

NO VOTE RECORDED: Acosta, Cervantes, Choi, Muratsuchi, Quirk-Silva

Prepared by:

9/4/17 13:02:50

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 222 (Bocanegra) - False documents

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 222 would repeal specified crimes enacted by Proposition 187 (1994) related to false documents and the concealment of a person’s citizenship or immigration status.

Fiscal Impact:

• Ballot costs: One-time printing and mailing costs (General Fund) in the range of $438,000 to $730,000 to the Secretary of State to place the measure on the ballot for the November 2020 statewide election. See comments below.
• Incarceration savings: Costs savings (General Fund) to the Department of Corrections and Rehabilitation (CDCR) for every individual incarcerated in a county jail instead of state prison or sentenced to prison for a shorter term.

Background:

Proposition 187 makes it a felony to manufacture or distribute false documents to conceal the true citizenship or resident alien status of another person, punishable by imprisonment for five years according to the 2011 Realignment Legislation. Proposition 187 also makes it a felony for a person to use false documents to conceal his or her true citizenship or resident alien status, punishable for five years according to the 2011 Realignment Legislation.

Additionally, existing law makes it an alternate felony-misdemeanor, punishable by imprisonment for up to one year in county jail or for up to three years according to the 2011 Realignment Legislation to falsely make, alter, forge, counterfeit, duplicate, or in any manner reproduce any driver’s license or identification card issued by a governmental agency with the intent that such license or card be used to facilitate the commission of a forgery.

Proposed Law:

This bill would repeal the crimes of manufacturing, distributing, or selling false documents to another to conceal a person’s citizenship or residency status and of using false documents to conceal one’s citizenship or residency status created by Proposition 187.

Staff Comments:

AB 222 would repeal crimes related to the production, distribution, selling, and use of forged documents to conceal a person’s citizenship or immigration status. Both of these offenses carry a five-year term of incarceration. According to CDCR, as of December 31, 2016, there was one inmate serving a prison sentence for producing, distributing, or selling forged documents to conceal status as the principal offense and there were two persons serving a prison sentence for using false documents to conceal status as the principle offense. If these crimes are repealed, a person still could be charged with the general state identification forgery crime, which carries a maximum punishment of three years of imprisonment. Any future conduct that would have resulted in a violation of the repealed crimes therefore still could be punished, but it would be with a lesser period of incarceration. Consequently, there is a General Fund savings to CDCR for every year not served in state prison.

The Secretary of State indicates that printing and mailing costs associated with placing a measure on the statewide ballot are approximately $73,000 per page, depending on the length of the ballot. The fiscal estimates noted above reflect the addition of 6 to 10 pages, the average range for measures, in the Voter Information Guide. Actual costs would depend upon the length of the title and summary, analysis by the Legislative Analyst’s Office, proponent and opponent arguments and rebuttals, and text of the proposal.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 222 Hearing Date: June 27, 2017

Subject: False Documents

HISTORY

Source: Author

Prior Legislation: SB 369 (De Léon) Chapter 318, Statues of 2014

AB 60 (Alejo) Chapter 524, Statutes of 2013

SB 1187 (Lara) Chapter 753, Statues of 2014

Support: California Public Defenders Association; Conference of California Bar Associations; Los Angeles County District Attorney’s Office; National Association of Social Workers, California Chapter; Service Employees International Union

Opposition: None known

Assembly Floor Vote: 54 - 21

PURPOSE

The purpose of this bill is to repeal the maximum punishment for the crimes of manufacturing, distributing, selling, and using false documents to conceal his or her citizen status by amending provisions of Proposition 187.

Existing law states that a felony is a crime that is punishable with death, by imprisonment in the state prison, or by imprisonment in a county jail not exceeding three years as a realigned felony, notwithstanding any other provision of law. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. (Pen. Code § 17)

Existing law provides that every person who falsely makes, alters, forges, counterfeits, duplicates, or in any manner reproduces any driver’s license or identification card issued by a governmental agency with the intent that such driver’s license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in a county jail not exceeding three years as a realigned felony. (Pen. Code § 470a)

Existing law provides that every person who displays, causes, permits to be displayed, or has in his or her possession any driver’s license or identification card, as specified, with the intent that

the driver’s license or identification card be used to facilitate the commission of any forgery is punishable by imprisonment in a county jail for not more than one year, by imprisonment in a county jail not exceeding three years as a realigned felony. (Pen. Code § 470b)

Existing law provides that a person who causes or permits to be displayed or have in his or her possession any canceled, revoked, suspended, fictitious, fraudulently altered, or fraudulently obtained driver’s license, shall be punished by imprisonment in a county jail not exceeding six months, or by fine not exceeding $1,000, or by both fine or imprisonment. (Veh. Code § 14610, subd. (a)(1).)

Existing law provides that a person who manufactures or sells an identification document substantially similar, or that purports to confer the same privileges as, the drivers’ licenses issued by the Department of Motor Vehicles, shall be punished by a fine not exceeding $1,000, and 24 hours of community service if the person is not employed or is not attending school, as well as imprisonment not exceeding one year, or by both fine and imprisonment. (Veh. Code § 14610.1)

Existing law provides that a person who causes or permits to be displayed or have in his or her possession any canceled, fictitious, fraudulently altered or obtained identification card shall be punished by fine not exceeding $1,000, or by imprisonment in a county jail not exceeding six months, or by both fine and imprisonment. (Veh. Code § 13004)

Existing law provides that a person who manufactures, distributes, or sells false documents to conceal the true citizenship or resident alien status of another person is guilty of a realigned felony, a fine of $75,000. (Pen. Code § 113)

This bill repeals Penal Code Section 113 by removing the existing mandatory sentence of a five year period of imprisonment, or the fine of $75,000, for the conviction of the manufacturing, distribution, or selling false documents to conceal the true citizenship or resident alien status of another person.

Existing law provides that any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a realigned felony, or by a fine of $25,000. (Pen. Code § 114)

This bill repeals Penal Code Section 114 by removing the existing mandatory sentence of a five year period of imprisonment, or the fine of $25,000, for the conviction of the utilization of false documents to conceal a person’s citizenship or resident alien status.

This bill, by repealing Penal Code Section 113 and 114, amends Proposition 187, an initiative statute approved by the voters at the November 8, 1994 statewide general election, and shall only become effective when submitted to and approved by the voters at a statewide election.

This bill specifies that the Secretary of State must submit the provisions of this bill to the voters for their approval during the November 2020 statewide general election.

COMMENTS

1. Need for This Bill

According to the author:

In 1994, voters passed Proposition 187, a largely unconstitutional attempt to fight the perceived ills of illegal immigration and punish the undocumented. It was designed to prevent undocumented immigrants from receiving public benefits, including social services, health care services, and public education, and it required various agencies to report suspected undocumented immigrants to various levels of state and federal law enforcement. The measure also enacted PC §114 to make it a felony, punishable by five years in prison or a $25,000 fine, to use false citizenship or residence documents to conceal one’s country of origin or resident status

Pursuant to the provision enacted above by Proposition 187, existing law provides for two separate and unequal sentences for individuals caught using false or forged identity documents, based solely upon the individual in question.

In context: An undocumented individual who purchases a fake driver’s license and social security card so that he or she can work or simply avoid deportation is prosecuted and subject to felony and a sentence of five years in prison or a $25,000 fine. However, an underage college student who purchases that same driver’s license to buy beer is prosecuted and subject to a misdemeanor or a felony, and is subject to a range of sentencing options.

This bill strikes Penal Code Sections 113 & 114, two unnecessary and anti-immigrant provisions of Prop. 187, both of deal with the use and manufacturing and falsifying documents. Upon passage of this bill, voters would be required to approve a complimentary ballot measure for this bill to take effect. District Attorneys will maintain the ability to prosecute an individual under existing penal code felony convictions – Penal Code Sections 470 (a),(b).

2. Proposition 187

On November 8, 1994, California voters approved Proposition 187. The proposition prohibited any person from receiving public social services, publicly funded health care services, or from being admitted into public elementary, secondary, and postsecondary school unless he or she could prove that they were a citizen of the United States, or a lawfully present alien. The proposition also included guidelines for the local and state law enforcement to cooperate with the U.S. Immigration and Naturalization Service, now called the U.S. Citizenship and immigration Services. Further, the proposition added criminal statutes, Penal Code Section 113 and 114—the subject of this bill—regarding the use and production of false documents, such as a driver’s license, for the purposes of concealing immigration status.^[1]

In 1998, six years following the immediate injunction of Proposition 187, a Federal judge struck down major components of Proposition 187. Judge Mariana Pfaelzer of Federal District Court in Los Angeles found that major elements of the measure “unconstitutionally usurped Federal authority over immigration policy…[and that] the state could not deny immigrants benefits in the state’s college and university systems or deny access to health care or social services. Only [the] provisions for criminal penalties for the manufacture, sale, and use of false documents to conceal a person’s immigrant status remain in force.”^[2] These provisions, found in Penal Code Sections 113 and 114, remain current law.

This bill repeals Penal Code Sections 113 and 114, thus eliminating the maximum punishments provided by Proposition 187 for the production and use of fraudulent documents. Because this bill amends a proposition approved by the voters, this bill will be subject to voter approval in a statewide general election, and will only become law if a majority of the voters approve the bill. This bill specifies that it will be placed on the November 2020 statewide general election.

3. Inconsistencies in Penalties for the Production and Use of Fraudulent Documents

a) Production of Fraudulent Documents

Every person who alters, falsifies, forges, duplicates or in any manner reproduces or counterfeits any driver's license or identification card issued by a governmental agency with the intent that such driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in county jail for up to three years pursuant to a realigned felony. (Pen. Code, § 470a.)

However, Penal Code Section 113 provides that if a person produces, distributes or sells similar false documents for the purpose to conceal their true citizenship status, they may be imprisoned in county jail for five years or receive a fine of $75,000.

This bill repeals Penal Code Section 113, thus the penalties in Penal Code 470a would apply in the production of fraudulent documents to conceal immigration status.

b) Use of Fraudulent Documents

Every person who displays, causes, permits to be displayed, or has in his or her possession any driver’s license or identification card, as specified, with the intent that the driver’s license or identification card be used to facilitate the commission of any forgery is punishable by imprisonment in a county jail for not more than one year, by imprisonment in a county jail not exceeding three years as a realigned felony. (Pen. Code § 470b)

However, Penal Code Section 114 provides that if a person uses similar false documents for the purpose of concealing their true citizenship status, they may be imprisoned in a county jail for five years or may receive a fine of $25,000.

This bill repeals Penal Code Section 114, thus the penalties in Penal Code 470b would apply in the use of fraudulent documents to conceal immigration status.

4. Californians’ Current Attitude Regarding Undocumented Immigrants

A January 2017 poll by the Public Policy Institute of California (PPIC) —a nonprofit, nonpartisan public policy think tank—found that an “overwhelming majority of Californians (85%) believe there should be a way for undocumented immigrants to stay in the U.S. legally if certain requirements are met.” ^[3] The poll also found this view of undocumented immigrants was supported across party lines, finding that 93% of Democrats, 84% of independents, and 65% of Republicans supported the statement.

Further, PPIC also found that in California a majority of adults (65%) and likely voters (58%) support the idea that California should take independent actions of the federal government to protect the legal rights of undocumented immigrants in California.^[4]

The results found by PPIC were also mirrored in a poll jointly authored by the University of Southern California and the Los Angeles Times in March 2016. The poll found that “more than three-fourths of voters said they believed immigrants who are already here [in the U.S.] should be allowed to stay. Sixty-five percent said such immigrants should be allowed to apply for U.S. citizenship, while 14% said they should be allowed to stay and work legally in the country but not apply for citizenship. Only 16% said that they should be required to leave the country…Just 36% of Republican voters likely to participate in the state’s primary in June [2016] said immigrants already here should be required to leave…only 8% of likely of likely voters in the Democratic primary took that position.”^[5]

However, the University of Southern California and Los Angeles Times poll also found that “62% of voters said they believed illegal immigration in California is at least a major problem, 23% calling it a crisis. By contrast, 36% said the issue was a small problem or not a problem at all.” The University of Southern California and Los Angeles Times poll did not qualify why respondents believed illegal immigration was a problem.^[6]

5. November 2020 Ballot

Because this bill amends a proposition approved by California voters, this bill is subject to voter approval by statewide general election. This bill specifies that the Secretary of State will submit this bill to the voters in the November 2020 statewide general election.

6. Argument in Support

The Los Angeles County District Attorney’s Office states, in support:

In 1994, voters passed Proposition 187, which the courts later determined was largely unconstitutional to fight the perceived ills of illegal immigration. Among the provision of Proposition 187 was the creation of Penal Code §114 which made it a felony, punishable by five years in prison or a $25,000, to use false citizenship or residence documents to conceal one’s country of origin or resident status.

Our office believes that the punishment contained in Penal Code §114 is extremely disproportionate to the crime. There are far more serious crimes that carry substantially lower penalties than the crime of using a false document to conceal an individual’s true citizenship or resident alien status. For example:

• Felony domestic violence is punishable by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand ($6,000), or by both that fine and imprisonment (Penal Code §273.5(a));
• Felony driving under the influence is punishable by imprisonment in the state prison for 16 months, two or three years. Typically an individual has to heave three or more prior DUI convictions within the last ten years, to face a felony DUI charge under California Vehicle Code section 23152.
• Battery on a peace officer engaged in the performance of their duties is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment (Penal Code §243(c)(2));
• Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment (Penal Code §288.4(a)(1));…

A five year state prison felony for a violation of Penal Code §114 is completely out of proportion to the crime being committed. The Penalties being proposed in AB 222 are more than adequate especially considering the reason for the possession of the documents is a federal offense and not a crime under state law.

– END –

1. “Illegal Aliens. Ineligibility for Public Services. Verification and Reporting. California Proposition 187 (1994),” http://repository.uchastings.edu/cgi/viewcontent.cgi?article=2103&context=ca_ballot_props ↑

2. Todd. S. Purdum, “Judge Nullifies Most of California Immigrant Law,” The New York Times, March 19, 1998, accessed June 19, 2017. http://www.nytimes.com/1998/03/19/us/judge-nullifies-most-of-california-immigrant-law.html ↑

3. Mark Baldassare, Dean Bonner, David Kordus, Lunna Lopes, “Californians & Their Government: PPIC Statewide Survey,” Public Policy Institute of California, January 2017, p. 3, accessed June 16, 2017. http://www.ppic.org/content/pubs/survey/S_117MBS.pdf ↑

4. Ibid, p. 3. ↑

5. Kate Linthicum, “Most California Voters Think Illegal Immigration is a problem, but Don’t See Mass Deportation as the Answer,” The Los Angeles Times, March 31, 2016, accessed June 16, 2017. http://www.latimes.com/politics/la-pol-ca-latimes-immigration-california-primary-poll-20160331-story.html ↑

6. Ibid. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 222

Author:(Bocanegra)

As Amended Ver:May 30, 2017

Majority vote

SUMMARY: Repeals the law establishing the crime of using false documents to conceal true citizenship or resident alien status. Repeals the law establishing the crime of manufacturing, distributing, or selling false documents to conceal the citizenship or resident alien status of another person.

EXISTING LAW:

1. States that any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a felony, and shall be punished by imprisonment pursuant to realignment for five years or by a fine of $25,000.
2. Specifies that any person who manufactures, distributes or sells false documents to conceal the true citizenship or resident alien status of another person is guilty of a felony, and shall be punished by imprisonment for five years pursuant to realignment or by a fine of $75,000.
3. Every person who alters, falsifies, forges, duplicates or in any manner reproduces or counterfeits any driver's license or identification card issued by a governmental agency with the intent that such driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in county jail for up to three years as a realigned felony.
4. Every person who displays or causes or permits to be displayed or has in his or her possession any driver's license or identification card of the type specified, with the intent that the driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in county jail for up to three years as a realigned felony.
5. States that it is a crime to display or cause or permit to be displayed or have in his possession any canceled, revoked, suspended, fictitious, fraudulently altered, or fraudulently obtained driver's license punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both.
6. Specifies that it is a crime to permit any unlawful use of a driver's license issued to him punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both.
7. States that it is crime to display or cause or permit to be displayed or have in his possession any canceled, fictitious, fraudulently altered, or fraudulently obtained identification card punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both.
8. Provides that it is crime to permit any unlawful use of an identification card issued to an individual as punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both.
9. States that a felony is a crime that is punishable with death, imprisonment in the state prison, or in the county jail under the realignment provisions. All other crimes are misdemeanors, except those classified as infractions.

FISCAL EFFECT: For every individual incarcerated in a county jail instead of state prison, there is a $29,000 General Fund savings to the California Department of Corrections and Rehabilitation (CDCR) for every year not served in state prison. And for every individual whose fine is reduced to $10,000, there is a revenue loss of approximately $60,000 ($15,000 in base revenue and $45,000 for various assessments). According to CDCR statistics, in 2015, one individual served time in state prison for using the prohibited documents.

COMMENTS: According to the author, "In 1994, voters passed Proposition 187, a largely unconstitutional attempt to fight the perceived ills of illegal immigration and punish the undocumented. It was designed to prevent undocumented immigrants from receiving public benefits, including social services, health care services, and public education, and it required various agencies to report suspected undocumented immigrants to various levels of state and federal law enforcement. The measure also enacted [Penal Code (PC) Section] 114 to make it a felony, punishable by five years in prison or a $25,000 fine, to use false citizenship or residence documents to conceal one's country of origin or resident status.

"In contrast, a felony conviction for assault with a handgun is punishable by two, three or four years in state prison. (PC [Section] 245[a][2]). Making a false bomb report is a straight misdemeanor, punishable by a term of imprisonment in county jail not to exceed one year (PC [Section] 148.1). And, use of a false identification card or driver's license is a misdemeanor or a felony, punishable by sixteen months, two, or three years in prison, the discretion of which is left to the District Attorney during prosecution.

"In context: An undocumented individual who purchases a fake driver's license and social security card so that he or she can work or simply avoid deportation is prosecuted and subject to felony and a sentence of five years in prison or a $25,000 fine. However, an underage college student who purchases that same driver's license to buy beer is prosecuted and subject to a misdemeanor or a felony, and is subject to a range of sentencing options.

"It should also be noted that the disproportionately harsh five-year penalty can prevent the speedy resolution of cases, because defendants are understandably unwilling to accept dispositions that include a mandatory five-year prison sentence. Ultimately, these delays could cost taxpayers more and more money in trial and incarceration costs, as defendants attempt to negotiate a more reasonable punishment."

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0000887

ASSEMBLY THIRD READING

ATR Bill Id:AB 222

Author:(Bocanegra)

As Amended Ver:February 23, 2017

2/3 vote

SUMMARY: Reduces the punishment for the crime of using false documents to conceal true citizenship or resident alien status. Specifically, this bill:

1. Removes the existing mandatory sentence of a five-year period of imprisonment or a $25,000 fine if convicted of using false documents to conceal true citizenship or resident alien status.
2. Makes the crime of using false documents to conceal true citizenship or resident alien status punishable as a misdemeanor with a maximum of one year in the county jail or a $10,000 fine, or alternatively as a felony with a maximum of three years imprisonment or a $10,000 fine.

EXISTING LAW:

1. States that any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a felony, and shall be punished by imprisonment pursuant to realignment for five years or by a fine of $25,000.
2. Specifies that any person who manufactures, distributes or sells false documents to conceal the true citizenship or resident alien status of another person is guilty of a felony, and shall be punished by imprisonment for five years pursuant to realignment or by a fine of $75,000.
3. Every person who alters, falsifies, forges, duplicates or in any manner reproduces or counterfeits any driver's license or identification card issued by a governmental agency with the intent that such driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in county jail for up to three years as a realigned felony.
4. Every person who displays or causes or permits to be displayed or has in his or her possession any driver's license or identification card of the type specified, with the intent that the driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in county jail for up to three years as a realigned felony.
5. States that it is a crime to display or cause or permit to be displayed or have in his possession any canceled, revoked, suspended, fictitious, fraudulently altered, or fraudulently obtained driver's license punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both.
6. Specifies that it is a crime to permit any unlawful use of a driver's license issued to him punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both.
7. States that it is crime to display or cause or permit to be displayed or have in his possession any canceled, fictitious, fraudulently altered, or fraudulently obtained identification card punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both.
8. Provides that it is crime to permit any unlawful use of an identification card issued to an individual as punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both.
9. States that a felony is a crime that is punishable with death, imprisonment in the state prison, or in the county jail under the realignment provisions. All other crimes are misdemeanors, except those classified as infractions.

FISCAL EFFECT: For every individual incarcerated in a county jail instead of state prison, there is a $29,000 General Fund savings to the California Department of Corrections and Rehabilitation (CDCR) for every year not served in state prison. And for every individual whose fine is reduced to $10,000, there is a revenue loss of approximately $60,000 ($15,000 in base revenue and $45,000 for various assessments). According to CDCR statistics, in 2015, one individual served time in state prison for using the prohibited documents.

COMMENTS: According to the author,

In 1994, voters passed Proposition 187, a largely unconstitutional attempt to fight the perceived ills of illegal immigration and punish the undocumented. It was designed to prevent undocumented immigrants from receiving public benefits, including social services, health care services, and public education, and it required various agencies to report suspected undocumented immigrants to various levels of state and federal law enforcement. The measure also enacted [Penal Code (PC) Section] 114 to make it a felony, punishable by five years in prison or a $25,000 fine, to use false citizenship or residence documents to conceal one's country of origin or resident status.

In contrast, a felony conviction for assault with a handgun is punishable by two, three or four years in state prison. (PC [Section] 245[a][2]). Making a false bomb report is a straight misdemeanor, punishable by a term of imprisonment in county jail not to exceed one year (PC [Section] 148.1). And, use of a false identification card or driver's license is a misdemeanor or a felony, punishable by sixteen months, two, or three years in prison, the discretion of which is left to the District Attorney during prosecution.

In context: An undocumented individual who purchases a fake driver's license and social security card so that he or she can work or simply avoid deportation is prosecuted and subject to felony and a sentence of five years in prison or a $25,000 fine. However, an underage college student who purchases that same driver's license to buy beer is prosecuted and subject to a misdemeanor or a felony, and is subject to a range of sentencing options.

It should also be noted that the disproportionately harsh five-year penalty can prevent the speedy resolution of cases, because defendants are understandably unwilling to accept dispositions that include a mandatory five-year prison sentence. Ultimately, these delays could cost taxpayers more and more money in trial and incarceration costs, as defendants attempt to negotiate a more reasonable punishment.

Analysis Prepared by: David Billingsley / PUB. S. / 916-319-3744 FN: 0000084

Date of Hearing: April 5, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 222

Author:(Bocanegra) – As Amended Ver:February 23, 2017

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill reduces the punishment for the crime of using false documents to conceal true citizenship or resident alien status. Specifically, this bill:

1. Removes the existing mandatory sentence of a five-year period of imprisonment or a $25,000 fine if convicted of using false documents to conceal true citizenship or resident alien status.
2. Makes the crime of using false documents to conceal true citizenship, or resident alien status, punishable as a misdemeanor with a maximum of one year in the county jail or a $10,000 fine, or alternatively as a felony with a maximum of three years imprisonment or a $10,000 fine.

FISCAL EFFECT:

For every individual incarcerated in a county jail instead of state prison, there is a $29,000 GF savings to the California Department of Corrections and Rehabilitation (CDCR) for every year not served in state prison. And for every individual whose fine is reduced to $10,000, there is a revenue loss of approximately $60,000 ($15,000 in base revenue and $45,000 for various assessments). According to CDCR statistics, in 2015, one individual served time in state prison for using the prohibited documents.

COMMENTS:

Background/Purpose. The current penalty for using false documents to conceal true citizenship or resident alien status mandates a five year imprisonment or a $25,000 fine. The mandatory application of a certain period of imprisonment or a certain fine is unusual in California criminal law. Generally, the court has latitude to impose imprisonment and/or a fine within a range. Under those circumstances, the law provides a maximum period of imprisonment and/or a maximum fine, but the judge retains discretion to sentence below the maximum based on the particular circumstances of the case.

The crime of falsifying a driver’s license or identification card is a crime similar in nature to the crime at issue in this bill. Every person who alters, falsifies, forges, duplicates or in any manner reproduces or counterfeits any driver's license or identification card issued by a governmental agency with the intent that such driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in county jail for up to three years pursuant to a realigned felony.

This bill makes the sentencing structure for using false documents to conceal true citizenship or resident alien status more consistent with other California crimes of a similar nature.

Analysis Prepared by: Pedro Reyes / APPR. / 916 319-2081

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 222

Author:(Bocanegra) – As Amended Ver:February 23, 2017

REVISED

SUMMARY:

Reduces the punishment for the crime of using false documents to conceal true citizenship or resident alien status. Specifically, this bill:

1. Removes the existing mandatory sentence of a five-year period of imprisonment or a $25,000 fine if convicted of using false documents to conceal true citizenship or resident alien status.
   
2. Makes the crime of using false documents to conceal true citizenship or resident alien status punishable as a misdemeanor with a maximum of one year in the county jail or a $10,000 fine, or alternatively as a felony with a maximum of three years imprisonment or a $10,000 fine.
   

EXISTING LAW:

1. States that any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a felony, and shall be punished by imprisonment pursuant to realignment for five years or by a fine of $25,000. (Pen. Code, § 114.)
   
2. Specifies that any person who manufactures, distributes or sells false documents to conceal the true citizenship or resident alien status of another person is guilty of a felony, and shall be punished by imprisonment for five years pursuant to realignment or by a fine of $75,000. (Pen. Code, § 113.)
   
3. Every person who alters, falsifies, forges, duplicates or in any manner reproduces or counterfeits any driver's license or identification card issued by a governmental agency with the intent that such driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in county jail for up to three years as a realigned felony. (Pen. Code, § 470a.)
   
4. Every person who displays or causes or permits to be displayed or has in his or her possession any driver's license or identification card of the type specified, with the intent that the driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in county jail for up to three years as a realigned felony. (Pen. Code, § 470b.)
   
5. States that it is a crime to display or cause or permit to be displayed or have in his possession any canceled, revoked, suspended, fictitious, fraudulently altered, or fraudulently obtained driver's license punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. (Veh. Code, § 14610, subd. (a)(1).)
   
6. Specifies that it is a crime to permit any unlawful use of a driver's license issued to him punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. (Veh. Code, § 14610, subd. (a)(5).)
   
7. States that it is crime to display or cause or permit to be displayed or have in his possession any canceled, fictitious, fraudulently altered, or fraudulently obtained identification card punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. (Veh. Code, § 13004, subd. (a).)
8. Provides that it is crime to permit any unlawful use of an identification card issued to an individual as punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. (Veh. Code, § 13004, subd. (d).)
   
9. States that a felony is a crime that is punishable with death, imprisonment in the state prison, or in the county jail under the realignment provisions. All other crimes are misdemeanors, except those classified as infractions. (Pen. Code, § 17, subd. (a).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "In 1994, voters passed Proposition 187, a largely unconstitutional attempt to fight the perceived ills of illegal immigration and punish the undocumented. It was designed to prevent undocumented immigrants from receiving public benefits, including social services, health care services, and public education, and it required various agencies to report suspected undocumented immigrants to various levels of state and federal law enforcement. The measure also enacted PC §114 to make it a felony, punishable by five years in prison or a $25,000 fine, to use false citizenship or residence documents to conceal one’s country of origin or resident status.

“In contrast, a felony conviction for assault with a handgun is punishable by two, three or four years in state prison. (PC §245[a][2]). Making a false bomb report is a straight misdemeanor, punishable by a term of imprisonment in county jail not to exceed one year (PC §148.1). And, use of a false identification card or driver’s license is a misdemeanor or a felony, punishable by sixteen months, two, or three years in prison, the discretion of which is left to the District Attorney during prosecution.

“In context: An undocumented individual who purchases a fake driver’s license and social security card so that he or she can work or simply avoid deportation is prosecuted and subject to felony and a sentence of five years in prison or a $25,000 fine. However, an underage college student who purchases that same driver’s license to buy beer is prosecuted and subject to a misdemeanor or a felony, and is subject to a range of sentencing options.

“It should also be noted that the disproportionately harsh five-year penalty can prevent the speedy resolution of cases, because defendants are understandably unwilling to accept dispositions that include a mandatory five-year prison sentence. Ultimately, these delays could cost taxpayers more and more money in trial and incarceration costs, as defendants attempt to negotiate a more reasonable punishment.”

1. Proposition 187: Proposition 187 was approved by the voters on November 8, 1994. The proposition prohibited any person from receiving public social services or public health care services, or from being admitted or permitted to attend a public elementary, secondary, or postsecondary school, until he or she has been verified as a U.S. citizen, permanent resident, or an otherwise lawfully present alien. The proposition included various reporting requirements with respect to persons suspected of being present in the U.S. in violation of federal immigration laws. The proposition also added criminal statutes related to the use of false documents to conceal immigration status.
   
   Three days after Proposition 187 was approved, on November 11, federal district court judge issued a temporary injunction against the state of California, forbidding the enforcement of most of the provisions Proposition 187. The criminal statutes, including the section which is the subject of this bill were not part of the injunction. Another federal judge then issued a permanent injunction, pending a trial. The courts imposed the injunction based concern that that the most of the provisions of Proposition 187 violated the U.S. Constitution by infringing on the federal government’s jurisdiction over immigration law. In 1997, the state of California asked for the case to be dismissed and the injunction dropped, on the grounds that federal immigration law had changed in the meantime. The federal court denied the request that the case be dismissed. The state of California never appealed that decision, so the permanent injunction stands, and the case never proceeded to trial.
   
   In addition to the denial of public benefits for undocumented immigrants, the proposition also created the criminal statutes related to fraudulent documents and immigration. Those criminal statutes were not enjoined by the courts and are still in effect. SB 396 (De Leon), Chapter 318, Statutes of 2014, repealed the unenforceable provisions of Proposition 187.
   
2. The Penalties for Using False Documents to Conceal True Citizenship or Resident Alien Status are Higher Than Other Crimes Involving the Fraudulent Use of Documents:
   The penalty for using false documents to conceal true citizenship or resident alien status mandates a 5 year imprisonment or a $25,000 fine. The mandatory application of a certain period of imprisonment or a certain fine is unusual in California criminal law. Generally, the court has latitude to impose imprisonment and/or a fine within a range. Under those circumstances, the law provides a maximum period of imprisonment and/or a maximum fine, but the judge retains discretion to sentence below the maximum based on the particular circumstances of the case before the court.
   
   The crime of falsifying a driver’s license or identification card is a crime which is similar in nature to the crime at issue in this bill. The punishment for falsifying a driver’s license of identification card reflects a typical punishment structure for California crimes. Every person who alters, falsifies, forges, duplicates or in any manner reproduces or counterfeits any driver's license or identification card issued by a governmental agency with the intent that such driver's license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in county jail for up to three years pursuant to a realigned felony. (Pen. Code, § 470a.)
   
   Another crime of a similar nature is possession of a driver’s license or identification card with the intent to use that identification to facilitate a forgery. (Pen. Code, § 470b.) That crime has the same sentencing structure and range as falsifying a driver’s license or identification card with a maximum period of imprisonment of three years.
   
   When a prosecutor charges a person with one of the crimes above related to falsifying an identification card, the prosecutor has discretion to file the charge as a felony or a misdemeanor. An individual charged with these crimes as a felony, can be sentenced up to a maximum of three years, but the court has discretion to sentence the individual to a lower amount of custody time. The court also has discretion to combine custody time with a period out of custody supervision with conditions such as drug testing and educational requirements. An individual charged with these crimes as a misdemeanor faces a maximum of one year in the county jail.
   
   This bill would make the sentencing structure for using false documents to conceal true citizenship or resident alien status more consistent with other California crimes of a similar nature.
   
3. California’s Attitude Concerning Undocumented Immigrants Has Changed since the Passage of Proposition 187: A January, 2017, poll by the Public Policy Institute of California (PPIC) found that Californians are in favor of protecting the rights of undocumented immigrants. A solid majority of adults (65%) and 58 percent of likely voters favor California’s state and local governments making their own policies and taking actions—separate from the federal government— to protect the rights of undocumented immigrants living in the state. Opinions differ widely across political parties: 80 percent of Democrats favor state and local government action, while 69 percent of Republicans oppose it. (PPIC Statewide Survey, January, 2017, p. 10.) An overwhelming majority of Californians (85%) say there should be a way for undocumented immigrants to stay in the United States legally if certain requirements are met—only 13 percent say they should not be allowed to stay in this country legally. (Id.)
   
4. Legislative Amendments to Proposition 187 Must Further the Purpose of Proposition 187: The language of Proposition 187 contained a section detailing the requirements to amend Proposition 187.
   

“The statutory provisions contained in this measure may not be amended by the Legislature except to further its purposes by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the voters.” (Proposition 187, Section 10.)

This bill seeks to reduce the maximum penalties for using false documents to conceal true citizenship or resident alien status. Given that the punitive nature of Proposition 187 in relationship to individuals that are not U.S. citizens there is a question as to whether a bill to reduce criminal penalties for such a group, might not be to further the purposes of Proposition 187. If the provisions of this bill were determined not to further the purposes of Proposition 187, those provisions would need to go before the voters of California.

The Findings and Declarations of Proposition 187 provide an indication of the motivation and intent of the proposition.

The People of California find and declare as follows: That they have suffered and are suffering economic hardship caused by the presence of illegal aliens in this state. That they have suffered and are suffering personal injury and damage caused by the criminal conduct of illegal aliens in this state. That they have a right to the protection of their government from any person or persons entering this country unlawfully.

Therefore, the People of California declare their intention to provide for cooperation between their agencies of state and local government with the federal government, and to establish a system of required notification by and between such agencies to prevent illegal aliens in the United States from receiving benefits or public services in the State of California. (Proposition 187, Section 1. Findings and Declarations, 1994.)

Given the findings and declarations of Proposition 187 and its statutory provisions, it raises the question whether a court would find that the provisions of this bill, which reduces the penalty for a crime enacted by Proposition 187, further the purposes of Proposition 187.

1. Argument in Support: According to the California Public Defenders Association, “As you well know, in 1994, voters passed Proposition 187, a largely unconstitutional attempt to fight the perceived ills of illegal immigration and punish the undocumented. While the court almost immediately put a stay on many of the provisions of Proposition 187, some unsettling provisions remain. Of those provisions is one that makes it an automatic felony, punishable by five years in prison or a $25,000 fine, to use false citizenship or residence documents to conceal one’s country of origin or resident status (PC §114). Conversely, use of a false identification card or driver’s license is a misdemeanor or a felony, punishable by sixteen months, two, or three years in prison, the discretion of which is left to the District Attorney during prosecution (PC §47 [a],[b]).

“AB 222 will impose the same punishments for (PC §114) as exist in law for (PC §47 [a],[b]), will ensure an undocumented individual who purchases and is caught using a fake driver’s license or social security card so that he or she can work in our state will face the same punishment as an underage college student who purchases and is caught using that same driver’s license to illegally purchase alcohol. Any system that imposes different punishments for the same crime based solely on the status of the individual in question is fundamentally unfair.”

1. Related Legislation:
   
   1. SB 6 (Hueso), would require the Department of Social Services to contract with specified organizations to provide legal services to individuals facing deportation proceedings who are not otherwise entitled to legal representation. SB 6 is awaiting hearing in the Senate Appropriations Committee.
      
   2. AB 3 (Bonta), would provide resources and training to county offices of the public defenders on issues relating to the immigration consequences of criminal convictions.  AB 3 is awaiting hearing in the Assembly Appropriations Committee.
      
   3. SB 54 (De León), would prohibit state and local law enforcement agencies and school police and security departments from using resources to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes. SB 54 is awaiting hearing in the Senate Appropriations Committee.
      
   4. SB 31 (Lara), would prohibit a state or local agency or a public employee from providing or disclosing to the federal government personally identifiable information regarding a person’s religious beliefs, practices, or affiliation, as specified, when the information is sought for compiling a database of individuals based on religious belief, practice or affiliation, national origin, or ethnicity for law enforcement or immigration purposes. SB 31 is awaiting hearing in the Senate Appropriations Committee.
      
   5. AB 298 (Gallagher), would require a local law enforcement official to cooperate with federal immigration officials by detaining an individual convicted of a felony on the basis of an immigration hold for up to 48 hours, as specified, after the person becomes eligible for release from custody if continued detention on the basis of the immigration hold would not violate federal law. AB 298 is awaiting hearing in the Assembly Public Safety Committee.
      
2. Prior Legislation:
   
   1. SB 396 (De León), Chapter 318, Statutes of 2014, repealed the unenforceable provisions of Proposition 187.
      
   2. AB 60 (Alejo), Chapter 524, Statutes of 2013, requires the Department of Motor Vehicles to issue a driver’s license to a person who is unable to submit satisfactory proof that the person’s presence in the United States is authorized under federal immigration law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Public Defenders Association

Opposition

None

Analysis Prepared by:

David Billingsley / PUB. S. /