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 provisions of the Penal Code. Existing law generally 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 felony or a violent felony, respectively. The Legislature may amend these initiative statutes by a statute passed in each house by a ²/₃ vote.

This bill would additionally define human sex trafficking as a violent felony and expand the scope of sodomy, oral copulation, sexual penetration, and rape offenses that are categorized as violent felonies, including if the victim was unconscious, if the victim was incapable of giving consent due to intoxication, if the victim was incapable of giving legal consent because of a mental disorder or developmental or physical disability, if the victim submitted to the act under the belief that the person committing the act was someone known to the victim other than the accused, or if the act was accomplished against the victims will by threatening to use the authority of a public official. felony. By changing the sentence 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, 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 provisions of the Penal Code. Existing law generally 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 felony or a violent felony, respectively. The Legislature may amend these initiative statutes by a statute passed in each house by a ²/₃ vote.

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 provisions of the Penal Code. Existing law generally 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 felony or a violent felony, respectively. The Legislature may amend these initiative statutes by a statute passed in each house by a ²/₃ vote.

This bill would make technical, nonsubstantive changes to that provision.

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2823 (Nazarian) - Violent felonies

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

Bill Summary:

AB 2823 would expand the definition of “violent felony” to include the crime of human trafficking.

Fiscal Impact:

Unknown, potential increase in costs to the Department of Corrections and Rehabilitation (CDCR), likely in the millions of dollars annually, for longer commitments to state prison for persons sentenced for human trafficking. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. (General Fund)

Background:

In November 2006, the voters passed Proposition 83, which categorized certain felonies as a “violent felony.” Currently, there are twenty-three crimes designated as violent felonies. The list includes, among other things, murder, voluntary manslaughter, mayhem, arson, rape, as defined, sodomy, and other specified sex crimes.

The first implication for the conviction of a crime designated as a violent felony is that the person will receive fewer "custody credits" toward release on parole. Inmates who receive convictions for violent felonies must serve 80 percent of their time in custody, as they are entitled to earn only 20 percent conduct credits post sentence (and 15 percent conduct credits presentence), while most prisoners earn 50 percent.

Additionally, designation as a violent felony may subject a person to a longer prior-prison-term enhancement in the event he or she is convicted of a new offense. Specifically, current law generally mandates a three-year enhancement when both the current offense and a prior conviction are violent felonies listed in the statute. Additionally, there is a five-year sentence enhancement when both the current offense and the prior conviction are serious felonies. Because almost all violent felonies also are designated serious felonies, these defendants are subjectable to the five-year enhancement which is often applied instead of the three-year enhancement because it leads to a longer length of imprisonment.

Proposition 184 (commonly referred to as the “three strikes” law) was adopted by voters in 1994. It imposed longer prison sentences for certain repeat offenders. Specifically, the law requires that a person who is convicted of a felony and who previously has been convicted of one or more violent or serious felonies be sentenced to state prison for a longer term. If the person has one previous serious or violent felony conviction, the sentence for any new felony conviction (not just a serious or violent felony) is twice the term otherwise required under law for the new conviction. If the person has two or more previous serious or violent felony convictions, the sentence for any new felony conviction (not just a serious or violent felony) is a life term with the earliest possible parole after twenty-five years. The voters, through Proposition 36 (2012), amended this law to require that the third strike be a serious or violent felony in order to impose the life term.

In November 2016, the voters approved Proposition 57. The initiative aimed to increase rehabilitation services and decrease the prison population. The initiative, in relevant part, allowed parole consideration for nonviolent felons (i.e., those inmates who are not serving a sentence for a violent felony) after the inmate has served the full base term of his or her primary offense, exclusive of enhancements or alternative sentences. It also authorized sentence credits for rehabilitation, good behavior, and education.

Proposed Law:

This bill would designate the crime of human trafficking, as defined, a violent felony.

Related Legislation:

There have been a numerous pieces of legislations, in this session and in previous sessions, to designate various crimes as a violent felony.

Staff Comments:

In 2017, CDCR admitted 100 inmates who were sentenced for human trafficking. Under this bill, an offender convicted of adult human trafficking who receives the mid-term sentence of fourteen years will serve, with credits, 80 percent of the sentence, or 11.2 years (4.2 years longer than under current law). Assuming 100 offenders are admitted annually for human trafficking and serve a sentence 4.2 years longer before an opportunity for parole, given the $80,729 per capita cost for each inmate, this bill would increase the average daily population at CDCR by 420 offenders after the fourth year, resulting in costs of approximately $34 million annually.

California is subject to a federal court order to reduce its in-state adult institution population to 137.5 percent of design capacity.  The state has undertaken efforts to implement a durable remedy to reduce and avoid prison overcrowding.  On July 4, 2018, 115,306 inmates were housed in the state’s thirty-five adult institutions, 6,286 were housed in in-state contract beds, and 2,810 inmates were housed in out-of-state facilities.  The prison population changes daily as new inmates are admitted and others are released, but, on that date, the state’s prison population was approximately 135.5 percent of design capacity. By leading to an increase of the inmate population in in-state institutions, this bill would make it more difficult for the state to comply with the court order.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 2823 Hearing Date: June 19, 2018

Subject: Violent Felonies

HISTORY

Source: Author

Prior Legislation: SB 75 (Bates), 2017, failed Senate Public Safety

SB 652 (Nielsen), 2017, failed Senate Public Safety

SB 770 (Glazer), 2017, failed Senate Public Safety

AB 27 (Melendez), 2017, held in Assembly Appropriations

AB 67 (Rodriguez), 2017, held in Assembly Appropriations

AB 197 (Kiley), 2017, failed Assembly Public Safety

Proposition 57, passed by voters on November 8, 2016

SB 1269 (Galgiani), 2016, failed Senate Public Safety

AB 1188 (Pan), 2011, failed Assembly Public Safety

AB 60 (Jeffries), 2011, failed Assembly Public Safety

AB 16 (Swanson), 2009, held in Assembly Appropriations

SB 440 (Denham), 2009, failed Senate Public Safety

AB 303 (Spitzer), 2007, held in Assembly Appropriations

AB 426 (Galgiani), 2007, failed Senate Public Safety

AB 2016 (Maze), 2004, failed Assembly Public Safety

AB 863 (Horton), 2003, failed Assembly Public Safety

AB 1838 (Hertzberg), Ch. 606, Stats. 2002

AB 2660 (Pacheco), 2002, failed Senate Public Safety

AB 455 (Wyman), 2001, failed passage in Assembly Public Safety Proposition 21, passed by voters March 7, 2000

Support: Association of Regional Center Agencies; California District Attorneys Association; Peace Officers Research Association of California; Riverside Sheriffs’ Association

Opposition: American Civil Liberties Union of California; California Attorneys for Criminal Justice; California Public Defenders Association; Ella Baker Center for Human Rights

Assembly Floor Vote: 67 - 3

PURPOSE

The purpose of this bill is to expand the violent felony list to include human trafficking and sex offenses, as specified.

Existing law provides a list of specific crimes defined as a "violent felony" which includes the following:

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. (Pen. Code § 667.5, subd. (c).)

Existing law imposes a three-year sentence enhancement for each prior separate prison term served by the defendant if the prior offense was a violent felony and the new offense is a violent felony. (Pen. Code § 667.5, subd. (a).)

Existing law provides a separate list of serious felonies which includes nearly all violent felonies. (Pen. Code, § 1192.7.)

Existing law imposes a five-year sentence enhancement for each prior conviction of a serious felony upon a conviction of a new offense that is a serious felony. (Pen. Code, § 667, subd. (a).)

Existing law entitles a defendant, subject to certain exceptions, to credits for each day of custody from the time of his arrest until the date of his or her sentence credit. These are commonly known as pre-sentence custody credits. (Pen. Code, § 2900.5.)

Existing law entitles defendants charged with non-violent felonies to presentence behavior credits, subject to some exceptions. These are commonly known as conduct credits. (Pen. Code, § 4019.)

Existing law entitles a sentenced prisoner to receive, upon good behavior and work participation, half-time credits of one day for every day served. (Pen. Code, § 2933.)

Existing law provides that any person convicted of a “violent felony,” as specified, shall accrue no more than 15 percent credit on his or actual time of confinement for behavior and worktime, a limitation which applies to pre-sentence credits. (Pen. Code, § 2933.1, subds. (a) & (c).)

Existing law states that any person convicted of a non-violent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense. (Cal. Const., art. I, § 32.)

Existing law provides authority to the Department of Corrections and Rehabilitation (CDCR) to award credits earned for good behavior and approved rehabilitative or educational achievements. (Cal. Const., art. I, § 32.)

This bill adds the following crimes to the list of violent felonies:

1. Sex trafficking; and,
2. Rape, sodomy, oral copulation, or sexual penetration if the victim was:
   1. Incapable of consenting due to a disability;
   2. Unconscious;
   3. Too intoxicated to consent;
   4. Submitted to the act under the belief that the person committing the act was someone known to the victim other than the accused; and or,
   5. Threatened by authority of a public official.

This bill names the violent felonies statute as the “Standing with Survivors Act of 2018.”

COMMENTS

1. Need for This Bill

According to the author of this bill:

Proposition 57 of 2016 was passed with the intent to reduce the burden on California’s overcrowded prisons and incentivize improved inmate behavior. To achieve this goal, Prop. 57 moves up parole consideration of “non-violent” offenders who have served the full term of the sentence for their primary offense and demonstrate that their release into the community would not pose an unreasonable risk of violence.

. . . .

Adding these reprehensible crimes to the list of violent felonies is vital to community safety and ensures that justice is served on behalf of survivors.

1. Proposition 57

On November 8, 2016, California voters approved Proposition 57. Proposition 57 was known as the "Parole for Non-Violent Criminals and Juvenile Court Trial Requirements Initiative." The purpose of Proposition 57 was to increase rehabilitation services and decrease the prison population. It requires juvenile court judges, rather than district attorneys, to decide whether a juvenile will be prosecuted as adult. The initiative allows parole consideration for nonviolent felons after the inmate has served the full base term of his/her primary offense, exclusive of enhancements or alternative sentences. It also authorizes sentence credits for rehabilitation, good behavior, and education. (Official Voter Information Guide, Proposition 57, California General Election, Nov. 8, 2016 < http://vig.cdn.sos.ca.gov/2016/general/en/pdf/complete-vig.pdf > [as of June 11, 2018].)

As pertains to this bill, Proposition 57 provided:

a) The following provisions are hereby added to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law….

(1) Parole consideration: Any person convicted of a non-violent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense….
(b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.” (Cal. Const., art. I, § 32, emphasis added.)

Proposition 57 requires CDCR to draft regulations on how the parole process will be implemented. The initiative specifies that early parole may only be considered for persons who have committed non-violent offenses. However, the initiative does not specify what is considered a non-violent felony. Proponents of this legislation want the offenses in this bill to be considered violent felonies so that inmates who have committed those crimes will not be eligible for its parole provisions.

CDCR submitted emergency regulations to the Office of Administrative Law on March 24, 2017. In addition to the current list of violent felonies in Penal Code section 667.5, the regulations exclude those serving life sentences and sex offenders from the parole provisions in Proposition 57. The regulations were subject to public hearing and comment period which provided opportunities for stakeholders and the public to provide input. The emergency regulations went into effect July 1, 2017 and CDCR has submitted them for final approval to make them permanent.

On February 9, 2018, a trial court ruled on a challenge brought by the Alliance for Constitutional Sex Offense Laws claiming that CDCR’s regulations impermissibly exclude nonviolent sex offenders from early parole consideration, contravening the voters’ intent in passing Proposition 57. The court agreed with petitioners and found that the regulations are overbroad. The court disagreed with petitioners, however, in their interpretation that “nonviolent offense” must mean all offenses not found on the violent felony list contained in Penal Code section 667.5:

[T]he Legislature’s list of violent offenses in section 667.5 may not be the only way to define what is a “nonviolent” offense. The court notes Proposition 57 never mentions section 667.5. If the voters intended to define the term “nonviolent” felony to mean any felony the Legislature has not listed in section 667.5, they presumably would have said so.

(Petition for Writ of Mandate, NO. 34-2017-80002581, Alliance for Constitutional Sex Offense Laws v. California Department of Corrections and Rehabilitation (2-9-18), p. 13.) The court remanded the case to CDCR to adopt new regulations defining the term “nonviolent felony offense” consistent with their ruling. (Id. at p. 2.) The court issued a final order on March 5, 2018 setting aside CDCR’s regulations implementing Proposition 57 but declined to direct CDCR to specifically exclude those felonies the Legislature designates as “violent” in Penal Code section 667.5. (Order After Hearing on Petition for Writ of Mandate, NO. 34-2017-80002581, Alliance for Constitutional Sex Offense Laws v. California Department of Corrections and Rehabilitation (3-5-18), p. 3.) CDCR plans to appeal the order and has informed this committee that it will move forward with the regulations without any changes. (<https://www.usnews.com/news/best-states/california/articles/2018-03-05/california-to-appeal-ruling-on-earlier-sex-offender-parole>.)

The purpose of this bill as stated by the author is to prevent consideration for parole under Proposition 57 for the additional offenses specified as violent felonies. However, nearly all of the offenses encompassed by this bill require sex offender registration (see Pen. Code, § 290, subd. (c)), thus the persons convicted of those crimes would not be eligible for consideration for earlier parole under CDCR’s regulations implementing Prop. 57.

Considering that CDCR’s regulations are moving forward as expected and the pending lawsuit is not final, should the Legislature pass legislation that makes changes to Proposition 57? Any bills that attempt to do so will likely be vetoed.

1. Violent Felony Designation

Penal Code section 667.5 enhances prison terms for persons convicted of 23 designated violent felonies. The statute contains Legislative findings and declarations stating that “these specified crimes merit special consideration when imposing a sentence to display society’s condemnation of these extraordinary crimes of violence against the person.” (Pen. Code, § 667.5, subd. (c).) The list includes some, but not all, sex offenses.

The first implication for the conviction of a crime designated to be a violent felony is that the offender will receive fewer "custody credits" toward release on parole. Inmates who receive convictions for violent felonies must serve 85% of their time in custody. (Pen. Code, § 2933.1, subds. (a) & (c).) They are only entitled to earn 15% conduct credits, while most prisoners earn 50%.

Additionally, designation as a violent felony may subject an offender to a longer prior-prison-term enhancement in the event he or she is convicted for a new offense. Penal Code section 667.5 subdivision (a) provides for a three-year enhancement when both the current offense and the prior conviction are violent felonies listed in the statute. There is also a five-year sentence enhancement when both the current offense and the prior conviction are serious felonies. Because almost all violent felonies are also found on the serious felony list, these defendants are also eligible for the five-year enhancement which is often applied instead of the three-year enhancement because it adds more time to a defendant’s total incarceration.

1. Three Strikes Implications

Generally, violent felonies and serious felonies are considered "strikes" for purposes of California's Three Strikes Law. The Three Strikes law requires a person who is convicted of a felony and who previously has been convicted of one or more violent or serious felonies, known as strikes, to be subject to enhanced penalties. Specifically, if the person has one prior strike, the sentence on any new felony conviction must be double what is specified by statute. If the person has two prior strikes, the sentence on any new felony conviction was 25 years to life, although this portion was amended by Proposition 36, approved by voters in 2012, to require that the third strike must be a serious or violent felony in order to impose the life term.

The Three Strikes law contains a statutory “lock-in” date that was most recently amended to November 7, 2012, the effective date of Proposition 36. The effect of the lock-in date is to provide that the listed offenses are “strikes” as of that date. As long as an offense is deemed a strike as of the listed date, the Three Strikes sentencing provisions apply to enhance a person’s sentence even if the person was convicted of the offense prior to it being deemed a strike. The specified date also acts to disallow adding a new strike unless the date is extended. This bill does not extend this date, thus it appears that the added crime would not constitute a strike.

This bill does not change the statutory lock-in date, thus the new offenses listed in this bill would not be considered “strikes” under California’s Three Strikes Law. However, there are still potential implications for the Three Strikes Law because any future amendment to the lock-in date in Penal Code section 667.1 to a later date would make these offenses "strikes" under California law.

1. Ex Post Facto Concerns

Ex post facto laws are prohibited by the United States Constitution, article I, section 9, and the California Constitution, article I, section 9. Although the Latin phrase “ex post facto” literally encompasses any law passed “after the fact,” the constitutional prohibition on ex post facto application of laws applies only to penal statutes which disadvantage the offender affected by them. Legislative enactments prohibited by the ex post facto clause include those which: (1) criminalize conduct which was innocent when done, (2) increase the punishment for past conduct or, (3) eliminate a defense available at the time the crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42.) “Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated . . . .” (Weaver v. Graham (1981) 450 U.S. 24, 30.) Thus, when considering an ex post facto challenge, the court does not look at the impact that a change has on a particular defendant, but rather at the overall effect of the challenged law. (Id. at p. 33.)

This bill’s designation of offenses as violent felonies has several implications including limitations on credit earning. The question of whether a credits statute is an ex post facto law depends on whether it is being applied retrospectively to the defendant. (In re Efstathiou (2011) Cal.App.4th 725, 729.) The question for analyzing the retrospective component is “whether the law changes the legal consequences of acts completed before its effective date.” (Weaver v. Graham, supra, 450 U.S. at p. 31.)

In Weaver, supra, the United States Supreme Court held that a new statute which reduced the amount of sentence reduction conduct credits an inmate could earn when applied to a person who committed the crime before the statute was enacted violated the Ex Post Facto Clause. The Supreme Court concluded that the statute was retrospective because it changed the “legal consequences” of crimes committed before the effective date and the “quantum of punishment” even though technically not part of the sentence. (Id. at pp. 31-32.) The court noted that an inmate’s credits would be reduced even if he abided by prison rules and performed all assignments; the statute simple lessened the available conduct credits available to an inmate as of the date of enactment. (Id. at pp. 33-34.)

The application of the 15% credits limitation found in Penal Code section 2933.1 for persons convicted of violent felonies as applied to a person who committed any of the crimes in this bill which would now be designated as violent felonies could violate ex post facto principles. The 15% limitation in Penal Code section 2933.1 applies to all persons convicted of a violent felony, however the constitutional amendment enacted by Proposition 57 gives CDCR authority to award credits earned for good behavior and approved rehabilitative or educational achievements. Thus, it appears that the 15% limitation in section 2933.1 now only applies to a defendant’s pre-sentence custody credits which the court is required to determine at the time of sentencing. (People v. Black (2009) 176 Cal.App.4th 145, 154; People v. Buckhalter (2001) 26 Cal.4th 20, 30-31.) Because ex post facto principles protects against retrospective changes in the law that disadvantages the defendant after the crime has been committed, applying the more restrictive credit calculation at sentencing to crimes that occurred prior to the change in the law would likely violate the Ex Post Facto Clause.

1. Ongoing Concerns over Prison Overcrowding

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:

1. 143% of design bed capacity by June 30, 2014;
2. 141.5% of design bed capacity by February 28, 2015; and,
3. 137.5% of design bed capacity by February 28, 2016.

The court also ordered California to implement the following population reduction measures in its prisons:

1. Increase prospective credit earnings for non‑violent second‑strike inmates as well as minimum custody inmates.
2. Allow non‑violent second‑strike inmates who have reached 50 percent of their total sentence to be referred to the Board of Parole Hearings (BPH) for parole consideration.
3. Release inmates who have been granted parole by BPH but have future parole dates.
4. Expand the CDCR’s medical parole program.
5. Allow inmates age 60 and over who have served at least 25 years of incarceration to be considered for parole.
6. Increase its use of reentry services and alternative custody programs.

(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).) Following the implementation of these measures along with the passage of Proposition 47, approved by California voters in November 2014, California met the federal court’s population cap in December 2015. (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown.)

CDCR’s June 2018 monthly report on the prison population notes that the in-state adult institution population is currently 129,319 inmates, which amounts to 135.1% of design capacity. Additionally, there are still 3,072 prisoners being housed out of state. (<https://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly/TPOP1A/TPOP1Ad1805.pdf>) 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).)

This bill would add 25 offenses to the list of violent felonies. It would adversely affect the court’s mandate of maintaining a durable solution to prison overcrowding because those inmates sentenced for the specified crimes after the effective date of the law would be entitled to less credits and be ineligible for parole consideration under Proposition 57, therefore serving more time on their sentences. (See Pen. Code, § 2933.1, subds. (a) & (c).) Additionally, in the future, more inmates would potentially be subject to a three-year or five-year sentence enhancement for each prior separate prison term served by the defendant if the prior offense was a violent felony and the new offense is also violent felony. (Pen. Code § 667.5, subd. (a).)

1. Arguments in Support

According to the Riverside Sheriffs’ Association:

While law enforcement agencies throughout the region are expanding efforts to curtail and ultimately prevent human trafficking, any legislative help is certainly welcomed.

By clarifying human sex trafficking as an inherently violent crime, California will be better equipped to hold those responsible for profiting off the pain and misery of those that are trafficked throughout the state and across the county for sex.

According to the California District Attorneys Association:

These crimes are particularly abhorrent and designating them as violent felonies would prescribe them a more appropriate, stronger punishment.

1. Argument in Opposition

According to the American Civil Liberties Union of California:

AB 2823 directly contradicts the will of the voters when they passed Proposition 57 in November of 2016. Prop 57 allows an offender convicted of a non-violent felony to be eligible for parole when he or she has completed the prison term for his or her primary offense, and authorizes the Department of Corrections and Rehabilitation to offer enhanced credit-earning opportunities to prisoners – opportunities that are likely also to be limited to non-violent offenders once the regulations are adopted. The arguments in opposition to Prop 57 expressly noted that someone convicted of rape of an unconscious victim, rape by intoxication, or human trafficking would be eligible for early parole under the Proposition.

Proponents of the measure noted that California’s prison population had increased by 500% in just a few decades, and that the measure would save tens of millions of taxpayer dollars. California voters passed the measure with over 64% of the vote. AB 2823 would undermine that choice when it has only recently been implemented. It would set a precedent for limiting the cost-saving and rehabilitative benefits of Prop 57 by defining more and more crimes as violent felonies, and thus allowing fewer and fewer offenders to be eligible for earlier release.

California law already provides significant punishments for the crimes that would become violent felonies under AB 2823. Under existing Penal Code section 236.1, the lowest penalty possible for human trafficking is five years in state prison. (Pen. Code, § 236.1 (a).) The highest penalty is life imprisonment. (Pen. Code, § 236.1(c)(2).) Persons convicted of most of the sex crimes included in this bill are subject to mandatory sentences, with no possibility of probation. The punishments provided for any of the crimes are often further enhanced by myriad existing sentence enhancements.

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ASSEMBLY THIRD READING

ATR Bill Id:AB 2823

Author:()

As Amended Ver:March 22, 2018

2/3 vote

SUMMARY: Adds sex trafficking and specified sex crimes to the list of violent felonies codified in the Penal Code. Specifically, this bill:

1. States that the following crimes shall be considered violent felonies:
   1. Sex trafficking; and,
   2. Rape, sodomy, oral copulation, or sexual penetration if the victim was:
      1. Incapable of consenting due to a disability;
      2. Unconscious;
      3. Too intoxicated to consent;
      4. Submitted to the act under the belief that the person committing the act was someone known to the victim other than the accused; and or,
      5. Threatened by authority of a public official.
2. Names the violent felonies statute as the ''Standing with Survivors Act of 2018.''

EXISTING LAW:

1. Defines a ''violent felony'' as any of the following:
   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. Imposes a three-year sentence enhancement for each prior separate prison term served by the defendant if the prior offense was a violent felony and the new offense is a violent felony.
3. Entitles a defendant, subject to certain exceptions, to credits for each day of custody from the time of his arrest until the date of his or her sentence credit. These are commonly known as pre-sentence custody credits.
4. Entitles defendants charged with non-violent felonies to presentence behavior credits, subject to some exceptions. These are commonly known as conduct credits.
5. Entitles a sentenced prisoner to receive, upon good behavior and work participation, half-time credits of one day for every day served.
6. Provides that any person convicted of a ''violent felony,'' as specified, shall accrue no more than 15 percent credit on his or actual time of confinement for behavior and worktime, a limitation which applies both as to pre-sentence credits and post-conviction credits.

FISCAL EFFECT: According to the Assembly Appropriations Committee, significant General Fund costs, in the tens of millions of dollars annually for the California Department of Corrections and Rehabilitation (CDCR) to incarcerate offenders for longer than required under current law.

Assuming 100 offenders are admitted annually for human sex trafficking and serve 4.2 years longer before parole, and assuming the out-of-state contract bed rate of $30,000, this bill will increase the average daily population at CDCR by 420 offenders after the fourth year, resulting in costs of $12 million annually.

Assuming CDCR continues to admit 75 offenders each year for these crimes and these offenders remain for 1.8 years longer, and assuming the out-of-state contract bed rate of $30,000, this bill will increase the average daily population at CDCR by 135 offenders after the second year, resulting in costs of about $4 million annually.

COMMENTS: According to the author, ''Proposition 57 of 2016 was passed with the intent to reduce the burden on California's overcrowded prisons and incentivize improved inmate behavior. To achieve this goal, Prop. 57 moves up parole consideration of “non-violent” offenders who have served the full-term of the sentence for their primary offense and demonstrate that their release into the community would not pose an unreasonable risk of violence.

''The law currently relies on the 'violent crimes' list in the California Penal Code. Unfortunately, this list fails to address human trafficking and multiple types of rape, including that of an unconscious person. Perpetrators of these violent crimes are now eligible for early release under Prop. 57. Under this proposition, Brock Turner, the former college athlete convicted on three accounts of felony sexual assault, would have been eligible for early release had he been sent to state prison.

''Adding these reprehensible crimes to the list of violent felonies is vital to community safety and ensures that justice is served on behalf of survivors.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0003115

Date of Hearing: May 2, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2823

Author:(Nazarian) – As Amended Ver:March 22, 2018

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

SUMMARY:

This bill adds human sex trafficking and specified sex crimes to the list of violent felonies in the Penal Code for purposes of requiring an offender serve a minimum of 80% of the state prison sentence. Specifically, this bill:

1. Adds the following crimes to the list of violent felonies:
   
   1. Human sex trafficking.
      
   2. Rape, sodomy, oral copulation, or sexual penetration if the victim was incapable of consenting due to a disability.
   3. Rape, sodomy, oral copulation, or sexual penetration if the victim was unconscious.
   4. Rape, sodomy, oral copulation, or sexual penetration if the victim was too intoxicated to consent.
   5. Rape, sodomy, oral copulation, or sexual penetration if the victim submitted to the act under the belief that the person committing the act was someone known to the victim other than the accused.
   6. Rape, sodomy, oral copulation, or sexual penetration if the victim was threatened by authority of a public official.

FISCAL EFFECT:

Significant GF costs, in the tens of millions of dollars annually for CDCR to incarcerate offenders for longer than required under current law.

In 2017, CDCR admitted 100 offenders for human sex trafficking. Under this bill, an offender convicted of adult human sex trafficking who receives the mid-term sentence of 14 years will serve, with good time credits, 80% of the sentence, or 11.2 years (4.2 years longer than under current law). Assuming 100 offenders are admitted annually for human sex trafficking and serve 4.2 years longer before parole, and assuming the out-of-state contract bed rate of $30,000, this bill will increase the average daily population at CDCR by 420 offenders after the fourth year, resulting in costs of $12 million annually.

In 2016 and 2017 CDCR admitted an average of 75 offenders annually for the crimes currently considered non-violent rape, sodomy, oral copulation and sexual penetration. Most of these crimes have a six-year mid-term sentence. Offenders who commit these crimes and receive the mid-term sentence of six years will be required to serve 80% of their sentence, or 4.8 years (1.8 years longer than under current law). Assuming CDCR continues to admit 75 offenders each year for these crimes and these offenders remain for 1.8 years longer, and assuming the out-of-state contract bed rate of $30,000, this bill will increase the average daily population at CDCR by 135 offenders after the second year, resulting in costs of about $4 million annually.

Actual costs will depend on several factors including the number of offenders who are convicted of these crimes and whether those offenders have a prior strike on their records.

COMMENTS:

1. Background. Under current law, there is a list of violent felonies that includes 23 categories of crimes. Offenders convicted of one of these violent felonies must serve at least 80% of the prison term sentenced by the court, because such offenders are limited to earning no more than 20% of good time credits toward parole. Currently, human sex trafficking is not included on the list of violent felonies and is not a strike. Offenders convicted of human sex trafficking or the specific types of rape identified in this bill are not considered violent felons, but are generally required to register as sex offenders.
2. Purpose. According to the author:

Proposition 57 of 2016 was passed with the intent to reduce the burden on California’s overcrowded prisons and incentivize improved inmate behavior. To achieve this goal, Prop. 57 moves up parole consideration of “non-violent” offenders who have served the full-term of the sentence for their primary offense and demonstrate that their release into the community would not pose an unreasonable risk of violence.

The law currently relies on the “violent crimes” list in the California Penal Code. Unfortunately, this list fails to address human trafficking and multiple types of rape, including that of an unconscious person. Perpetrators of these violent crimes are now eligible for early release under Prop. 57. Under this proposition, Brock Turner, the former college athlete convicted on three accounts of felony sexual assault, would have been eligible for early release had he been sent to state prison.

Adding these reprehensible crimes to the list of violent felonies is vital to community safety and ensures that justice is served on behalf of survivors.

1. Related legislation.

AB 2356 (Kiley), of the current legislative session, adds the offense of human sex trafficking to the list of violent felonies and makes it a "strike" for purposes of the Three Strikes Law. AB 2356 is on this committee’s suspense file.

1. Prior legislation.

AB 27 (Melendez), of the current legislative session, adds the sex offenses contained in this bill to the list of violent felonies. AB 27 was held on this committee’s suspense file.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: April 17, 2018

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Adds sex trafficking and specified sex crimes to the list of violent felonies codified in the Penal Code. Specifically, this bill:

1. States that the following crimes shall be considered violent felonies:
   
   1. Sex trafficking; and,
      
   2. Rape, sodomy, oral copulation, or sexual penetration if the victim was:
      
      1. Incapable of consenting due to a disability;
         
      2. Unconscious;
         
      3. Too intoxicated to consent;
         
      4. Submitted to the act under the belief that the person committing the act was someone known to the victim other than the accused; and or,
         
      5. Threatened by authority of a public official.
         
2. Names the violent felonies statute as the “Standing with Survivors Act of 2018.”

EXISTING LAW:

1. Defines a “violent felony” as any of the following:
   
   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. (Pen. Code § 667.5(c).)
       
2. Imposes a three-year sentence enhancement for each prior separate prison term served by the defendant if the prior offense was a violent felony and the new offense is a violent felony. (Pen. Code § 667.5, subd. (a).)
   
3. Entitles a defendant, subject to certain exceptions, to credits for each day of custody from the time of his arrest until the date of his or her sentence credit. These are commonly known as pre-sentence custody credits. (Pen. Code, § 2900.5.)
   
4. Entitles defendants charged with non-violent felonies to presentence behavior credits, subject to some exceptions. These are commonly known as conduct credits. (Pen. Code, § 4019.)
   
5. Entitles a sentenced prisoner to receive, upon good behavior and work participation, half-time credits of one day for every day served. (Pen. Code, § 2933.)
   
6. Provides that any person convicted of a “violent felony,” as specified, shall accrue no more than 15 percent credit on his or actual time of confinement for behavior and worktime, a limitation which applies both as to pre-sentence credits and post-conviction credits. (Pen. Code, § 2933.1, subds. (a) & (c).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Proposition 57 of 2016 was passed with the intent to reduce the burden on California’s overcrowded prisons and incentivize improved inmate behavior. To achieve this goal, Prop. 57 moves up parole consideration of “non-violent” offenders who have served the full-term of the sentence for their primary offense and demonstrate that their release into the community would not pose an unreasonable risk of violence.
   
   “The law currently relies on the ‘violent crimes’ list in the California Penal Code. Unfortunately, this list fails to address human trafficking and multiple types of rape, including that of an unconscious person. Perpetrators of these violent crimes are now eligible for early release under Prop. 57. Under this proposition, Brock Turner, the former college athlete convicted on three accounts of felony sexual assault, would have been eligible for early release had he been sent to state prison.
   
   “Adding these reprehensible crimes to the list of violent felonies is vital to community safety and ensures that justice is served on behalf of survivors.”
   
2. Violent Felony Designation: Penal Code section 667.5 enhances prison terms for persons convicted of 23 designated violent felonies. The statute contains Legislative findings and declarations stating that “these specified crimes merit special consideration when imposing a sentence to display society’s condemnation of these extraordinary crimes of violence against the person.” (Pen. Code, § 667.5, subd. (c).) The list includes some, but not all, sex offenses.
   

The first implication for the conviction of a crime designated to be a violent felony is that the offender will receive fewer "custody credits" toward release on parole. Inmates who receive convictions for violent felonies must serve 85% of their time in custody. (Pen. Code, § 2933.1, subds. (a) & (c).) They are only entitled to earn 15% conduct credits, while most prisoners earn 50%.

Additionally, designation as a violent felony may subject an offender to a longer prior-prison-term enhancement in the even he or she is convicted for a new offense. Penal Code section 667.5 subdivision (a) provides for a three-year enhancement when both the current offense and the prior conviction are violent felonies listed in the statute.^[1]

1. Proposition 57: On November 8, 2016, California voters approved Proposition 57. Proposition 57 was known as the "Parole for Non-Violent Criminals and Juvenile Court Trial Requirements Initiative." The purpose of Proposition 57 was to increase rehabilitation services and decrease the prison population. In pertinent part, the initiative allows parole consideration for non-violent felons after the inmate has served the full base term of his/her primary offense, exclusive of enhancements or alternative sentences. It also authorizes sentence credits for rehabilitation, good behavior, and education. (Official Voter Information Guide, Proposition 57, California General Election, Nov. 8, 2016 < http://voterguide.sos.ca.gov/en/propositions/57/analysis.htm > [as of Mar. 17, 2017].)
   
   Proposition 57 requires the California Department of Corrections and Rehabilitation (CDCR) to draft regulations on how the parole process will be implemented. The initiative specifies that early parole may only be given to persons who have committed non-violent offenses. However, the initiative does not specify what is considered a non-violent felony.
   
   The purpose of this bill is to prevent earlier parole provided by Proposition 57 for the offenses specified.
   
   Specifically, Prop. 57 added section 32 to article I of the California Constitution which states, in pertinent part:

“32. (a) The following provisions are hereby added to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law….

(1) Parole consideration: Any person convicted of a non-violent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense….
(b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.” (Cal. Const., art. I, § 32, emphasis added.)

As pertains to this bill, this language raises the question of what is a non-violent felony offense for purposes of Prop. 57.

In People v. Brown (2016) 63 Cal.4th 335, the Supreme Court considered the scope of Elections Code section 9002, which permits amendments to an initiative if they are “reasonably germane” to the measure’s theme, purpose, or subject. In opining the proposed amendments to Prop. 57 allowing for early parole were not reasonably germane to the original measure which changed the treatment of juveniles in the justice system, Justice Chin’s dissenting opinion stated:

More substantively, the constitutional provision never defines the term “non-violent felony offense.” Because the United States Supreme Court recently declared unconstitutional as impermissible vague the term ‘violent felony’ in a federal statute (Johnson v. United States (2015) 576 U.S. __ [192 L.Ed.2d 569, 135 S.Ct. 2551]), the absence of a definition is troublesome, to say the least. The Penal Code contains various lists of crimes satisfying various definitions, including a list of ‘violent’ felonies. (Pen. Code, § 667.5, subd. (c).) Does that statute apply to mean that any crime not listed in it would be a non-violent felony, even though many such crimes are arguably violent? Can a statute define a constitutional term? What if the Legislature amends the list? What happens in the term ‘non-violent felony offense’ is also found void for vagueness? Would that mean all inmates would be eligible for parole? The amended version could greatly benefit from a definition of the term.” (Brown, supra, 63 Cal.4th at p. 360, emphasis added.)

It remains an open question whether a legislative change to the violent felonies list enacted after the voters approved Prop. 57, as proposed by this bill, would have any effect on the early parole provisions now enshrined in the Constitution, especially in light of the fact that constitution also gives CDCR the authority to adopt regulations in furtherance of this objective and this authority appears to exist notwithstanding any other provision of law. (See Cal. Const., art. I, § 32.)

1. Recent Litigation on CDCR Regulations Implementing Prop. 57: In April 2017 CDCR issued emergency regulations to implement the early parole provisions of Prop. 57. In addition to excluding persons convicted of offenses enumerated on the violent felonies list, CDCR also excluded all persons ever convicted of a sex offense requiring sex offender registration, and those persons sentenced to death or to a life term. (15 Cal. Code Regs. § 3490, subds. (a) & (c).)
   
   Because nearly all of the offenses encompassed by this bill require sex offender registration (See Pen. Code, § 290, subd. (c)), these persons would not have been eligible for early parole under CDCR’s regulations implementing Prop. 57.
   
   However, the Alliance for Constitutional Sex Offense Laws sued CDCR on behalf of an inmate who was convicted and incarcerated for one of the offenses at issue, which is not listed on the violent felonies list. The claim alleged that the regulations impermissibly exclude “nonviolent” sex offenders from early parole, in contravention of the intent of the voters. (See Alliance for Constitutional Sex Offense Laws, et. al. v. California Department of Corrections and Rehabilitation, et al. Case No. 34-2017-80002581, Sacramento County Superior Court). In a final order issued March 5, 2018, the court agreed and set aside the regulations. The intent of the voters controls where the language of an initiative is ambiguous. The court noted that the voters were aware that Prop. 57 would make some sex offenders eligible for early parole review because the argument against Prop. 57 and the rebuttal to the argument in favor of Prop. 57 both made this claim. And yet the voters approved the measure. The court concluded, “CDCR cannot substitute its judgment for what it wishes the drafters of Proposition 57 had said. Nor may CDCR’s departmental regulations override a clear directive in the Constitution.” (http://all4consolaws.org/wp-content/uploads/2018/03/CA-Proposition-57-early-parole-consideration-Final-Order-March-2018.pdf )
   
   However, the court refused to interpret the term “nonviolent felony offense” as any offense not listed in Penal Code section 667.5. The court opined that this is not the only way to define the term. Moreover, “[h]ad the drafters of Proposition 57 wanted such a limitation, they could have easily included it in the text.” Therefore, CDCR can use another other definitions to define “nonviolent felony” as long as it comports with the Constitution and the voter’s directive.
   
   How this term will now be defined in the regulations remains an open question.
   
   This bill would resolve the issue as it pertains to these offenses by including them on the violent felonies list.
   
2. Ex Post Facto Issues: Ex post facto laws are prohibited by the United States Constitution, article I, section 9, and the California Constitution, article I, section 9. Although the Latin phrase “ex post facto” literally encompasses any law passed “after the fact,” the constitutional prohibition on ex post facto application of laws applies only to penal statutes which disadvantage the offender affected by them. Legislative enactments prohibited by the ex post facto clause include those which: (1) criminalize conduct which was innocent when done, (2) increase the punishment for past conduct or, (3) eliminate a defense available at the time the crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42.) “Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated . . . .” (Weaver v. Graham (1981) 450 U.S. 24, 30.) Thus, when considering an ex post facto challenge, the court does not look at the impact that a change has on a particular defendant, but rather at the overall effect of the challenged law. (Id. at p. 33.)
   
   As noted above, designation of the crimes at issue in this bill as violent felonies has implications both for credits and for sentence enhancements. For ex post facto purposes, each must be analyzed separately.
   
   1. Credits: The question of whether a credits statute is an ex post facto law depends on whether it is being applied retrospectively to the defendant. (In re Efstathiou (2011) Cal.App.4th 725, 729.) The question for analyzing the retrospective component is “whether the law changes the legal consequences of acts completed before its effective date.” (Weaver v. Graham, supra, 450 U.S. at p. 31.)
      
      In Weaver, supra, 450 U.S 24, the United States Supreme Court held that a new statute which reduced the amount of sentence reduction conduct credits an inmate could earn when applied to a person who committed the crime before the statute was enacted violated the Ex Post Facto Clause. The Supreme Court concluded that the statute was retrospective because it changed the “legal consequences” of crimes committed before the effective date and the “quantum of punishment” even though technically not part of the sentence. (Id. at pp. 31-32.) The court noted that an inmate’s credits would be reduced even if he abided by prison rules and performed all assignments; the statute simple lessened the available conduct credits available to an inmate as of the date of enactment. (Id. at pp. 33-34.)
      
      As in Weaver, the application of the 15% credits limitation found in Penal Code section 2933.1 for persons convicted of violent felonies as applied to a person who committed any of the crimes in this bill which would now be designated as violent felonies and subject to the limitation would violate ex post facto principles. As in Weaver, the inmate would be automatically ineligible for 50% conduct credits through no fault of his or her own.
      
   2. Enhancements for Prior Convictions: Various courts have held that the application of a sentencing enhancement due to a prior conviction does not violate the Ex Post Facto Clause, as long as the statute was in effect before the triggering offense was committed. (See e.g. United States v. Ahumada-Avalos (9th Cir. 1984) 875 F.2d 681, 683-84; People v. Helms (1997) 15 Cal.4th 608, 614-615.) In this scenario, the increased punishment is for the new crime only, committed after enactment, but is more severe because the defendant is a habitual criminal. (People v. Mills (1992) 6 Cal.App.4th 1278, 1287.)
      
      Thus, application of a three-year sentence enhancement for each prior separate prison term under Penal Code section 667.5, subdivision (a) based on reclassification of a crime already committed by an individual if that individual commits a new violent felony in the future would not be prohibited under the Ex Post Facto Clause.
      
3. Ongoing Concerns for 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 March 2018 monthly report on the prison population notes that the in-state adult institution population is currently 114,563 inmates, which amounts to 134.6% of design capacity. This is a decrease of .3% from March of last year. Additionally, there are still 3,872 prisoners being housed out of state. (https://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly/TPOP1A/TPOP1Ad1803.pdf)
   
   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).)

This bill would add 25 new Penal Code subdivisions to the list of violent felonies. It would adversely affect the goal of maintaining a durable solution to prison overcrowding because those inmates sentenced for the crimes at issue after the effective date of the law would be entitled to less credits, and therefore have to serve more time on their sentences. (See Pen. Code, § 2933.1, subds. (a) & (c).) Additionally, in the future, more inmates would potentially be subject to a three-year enhancement for each prior separate prison term served by the defendant if the prior offense was a violent felony and the new offense is also violent felony. (Pen. Code § 667.5, subd. (a).)

1. Three Strikes Law 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 which 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.)

The new offenses listed in this bill would not be considered “strikes” under California law because the date in section 667.1 has not been modified.

Nevertheless, there are still potential implications for the Three Strikes Law because any future amendment to the date in section 667.1 to a later date would make these offenses "strikes" under California law.

1. Arguments in Support:
   
   1. According to the California District Attorneys Association, “These crimes are particularly abhorrent and designating them as violent felonies would prescribe them more appropriate punishment.”
      
   2. According to the Riverside Sheriffs’ Association, “While law enforcement agencies throughout the region are expanding efforts to curtail and ultimately prevent human trafficking, any legislative help is certainly welcomed.
      
      “By clarifying human sex trafficking as an inherently violent crime, California will be better equipped to hold those responsible for profiting off the pain and misery of those that are trafficked throughout the state and across the county for sex.”
      
2. Argument in Opposition: According to the American Civil Liberties Union of California, “AB 2823 directly contradicts the will of the voters when they passed Proposition 57 in November of 2016. Prop 57 allows an offender convicted of a non-violent felony to be eligible for parole when he or she has completed the prison term for his or her primary offense, and authorizes the Department of Corrections and Rehabilitation to offer enhanced credit-earning opportunities to prisoners – opportunities that are likely also to be limited to non-violent offenders once the regulations are adopted. The arguments in opposition to Prop 57 expressly noted that someone convicted of rape of an unconscious victim, rape by intoxication, or human trafficking would be eligible for early parole under the Proposition.
   
   “Proponents of the measure noted that California’s prison population had increased by 500% in just a few decades, and that the measure would save tens of millions of taxpayer dollars. California voters passed the measure with over 64% of the vote. AB 2823 would undermine that choice when it has only recently been implemented. It would set a precedent for limiting the cost-saving and rehabilitative benefits of Prop 57 by defining more and more crimes as violent felonies, and thus allowing fewer and fewer offenders to be eligible for earlier release.
   
   “California law already provides significant punishments for the crimes that would become violent felonies under AB 2823.”
   
3. Related Legislation:
   
   1. AB 2356 (Kiley) would add the offense of human sex trafficking to the list of violent felonies and makes it a "strike" for purposes of the Three Strikes Law. AB 2356 is pending in the Assembly Appropriations Committee.
      
   2. SB 976 (Bates) would specify that a “nonviolent felony offense” for purposes of Prop. 57 parole eligibility does not include a felony classified as a violent felony, and would also define a serious felony or an offense that requires registration as a sex offender as a violent felony for these purposes. SB 976 is pending hearing in the Senate Public Safety Committee.
      
   3. SCA 17 (Nielsen) would amend the California Constitution to exclude a person who was previously convicted of a violent felony in California, or convicted of an offense in any other state that would constitute a violent felony in California, from parole consideration after serving the full term for his or her primary offense. SCA 17 is pending in the Senate Public Safety Committee.
      
4. Prior Legislation:
   
   1. AB 27 (Melendez), of the 2017-2018 Legislative Session, would have added the sex offenses contained in this bill to the list of violent felonies. AB 27 was held in the Assembly Appropriations Committee.
      
   2. AB 67 (Rodriguez), of the 2017-2018 Legislative Session, was identical to this bill. AB 67 was held in the Assembly Appropriations Committee.
      
   3. SB 75 (Bates), of the 2017-2018 Legislative Session, would have created an additional “violent felony” list that includes 20 felonies that are not on the existing list in order to exclude offenders from Proposition 57’s parole provisions and to impose a three-year sentencing enhancement. SB 75 failed passage in the Senate Public Safety Committee.
      
   4. SB 770 (Glazer), of the 2017-2018 Legislative Session, would have created an additional “violent felonies” list with 30 felonies not on the existing list in order to exclude offenders from Proposition 57’s parole provisions. SB 770 was held in the Senate Public Safety Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys Association
Peace Officers Research Association of California
Riverside Sheriffs’ Association

Opposition

American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Ella Baker Center for Human Rights

Analysis Prepared by:

1. The additional three-year term will not be imposed if the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction for 10 years. ↑