Existing law, as added by Proposition 8, adopted June 8, 1982, and amended by Proposition 21, adopted March 7, 2000, among other things, defines a serious felony. Existing law, also added by Proposition 8, adopted June 8, 1982, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified. Existing law, the Three Strikes Law, specifies that references to code sections contained in the law, including references to the definition of a serious felony, are to those statutes as they existed on November 7, 2012. The Legislature may directly amend Proposition 8 and Proposition 21 by a statute passed in each house by a ²/₃ vote, or by a statute that becomes effective only when approved by the voters. The Legislature may directly amend Proposition 36 by a statute passed in each house by a ²/₃ vote or by a statute that becomes effective when approved by a majority of the electors.

This bill would amend those initiatives statutes by adding certain felonies, including threatening a witness and human trafficking, witness, human trafficking with the intent to commit a sex offense, exploding a destructive device to terrorize, evading a pursuing peace officer and causing serious bodily injury, and taking a person from the lawful custody of a peace officer by means of a riot, among other crimes, to the definition of a serious felony, as specified. The bill would specify that for all offenses committed on or after January 1, 2018, references to code sections contained in the Three Strikes Law are to those statutes as they read January 1, 2018. Because the bill would impose additional duties on local prosecutors, and because it would expand the punishments for existing crimes, it would impose a state-mandated local program. The bill would make other technical, nonsubstantive changes.

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 added by Proposition 8, adopted June 8, 1982, and amended by Proposition 21, adopted March 7, 2000, among other things, defines a serious felony. Existing law, also added by Proposition 8, adopted June 8, 1982, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified. Existing law, the Three Strikes Law, specifies that references to code sections contained in the law, including references to the definition of a serious felony, are to those statutes as they existed on November 7, 2012. The Legislature may directly amend Proposition 8 and Proposition 21 by a statute passed in each house by a ²/₃ vote, or by a statute that becomes effective only when approved by the voters. The Legislature may directly amend Proposition 36 by a statute passed in each house by a ²/₃ vote or by a statute that becomes effective when approved by a majority of the electors.

This bill would amend those initiatives statutes by adding certain felonies, including threatening a witness and human trafficking, to the definition of a serious felony, as specified. The bill would specify that for all offenses committed on or after January 1, 2018, references to code sections contained in the Three Strikes Law are to those statutes as they read January 1, 2018. Because the bill would impose additional duties on local prosecutors, and because it would expand the punishments for existing crimes, it would impose a state-mandated local program. The bill would make other technical, nonsubstantive changes.

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

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

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 537

Author:(Acosta) – As Amended Ver:March 21, 2017

SUMMARY:

Adds crimes to the list of serious felonies. Requires imposition of longer prison sentences and reduction of custody credits for persons convicted of any felony with a prior conviction for the one of the new serious felonies. Provides that the new serious felonies in this bill would be incorporated in the Three Strikes law. Specifically, this bill:

1. Adds the following crimes to the list of “Serious felonies:”
   
   1. Threatening a witness, informant, or victim, as specified;
      
   2. Human trafficking, involving sexual exploitation;
      
   3. Child abuse resulting in death;
      
   4. Solicitation to commit murder;
      
   5. Solicitation to commit specified sexual assaults;
      
   6. Taking a hostage to prevent arrest or to use as a shield;
      
   7. Threatening to use a weapon of mass destruction;
      
   8. Possession of restricted biological agents;
      
   9. Exploding a destructive device to terrorize;
      
   10. Fleeing or evading a peace officer resulting in serious bodily injury or death;
       
   11. Possession of a firearm by a person that has a prior specified felony conviction;
       
   12. Taking a person from law enforcement custody by means of a riot; and
       
   13. Street gang recruiting.
       
2. Makes these offense “strikes” for purposes of California’s Three Strikes law for offenses committed after January 1, 2018.
   
3. Results in reduced credits in state prison, denial of probation, mandate for consecutive sentencing, denial of sentencing pursuant to realignment when of person’s convicted of new felonies with prior convictions for the offenses listed in this bill.

EXISTING LAW:

1. Defines a "strike" prior as serious felonies listed in Penal Code sections 1192.7(c) and 1192.8, and violent felonies listed in Penal Code section 667.5(c). (Pen. Code, §§ 667(d)(1) and 1170.12(b)(1).)
   
2. Provides that a defendant who commits a serious or violent felony and has previously been convicted of one "strike" prior conviction must be sentenced to twice the base term of the current felony. (Pen. Code, §§ 667(e)(1) and 1170.12(c)(1).)
   
3. Provides that a defendant who commits a serious or violent felony and has previously been convicted of two or more "strike" prior convictions, must be sentenced to at least 25-years-to-life in state prison. (Pen. Code, §§ 667(e)(2) and 1170.12(c)(2).)
   
4. Requires consecutive rather than concurrent sentencing for multiple felony offenses committed by a defendant with a prior serious or violent felony conviction, unless the current felony convictions arise out of the same set of operative facts. (Pen. Code, §§ 667(c)(6) and 1170.12(a)(6).)
   
5. Requires defendant convicted of a felony with a prior serious felony to be committed to state prison, and disallows diversion or probation. (Pen. Code, §§ 667(c)(2) and (c)(4), and 1170.12(a)(2) and (a)(4).)
   
6. Limits conduct credits for individuals convicted of a felony with a prior strike to 20% of the term. (Pen. Code, §§ 667(c)(5) and 1170.12(a)(5).)
   
7. Specifies that the Three Strikes Law is based on code sections, including references to the definition of a serious felony, as those statutes existed on November 7, 2012. (Pen. Code, § 1170.125, Pen. Code, § 667.1.)
   
8. States that any person convicted of a serious felony who previously has been convicted of a serious felony, shall receive an additional five year enhancement for each prior serious felony. (Pen. Code, § 667.5.)
   
9. Creates, under realignment, two classifications of felonies: those punishable in county jail and those punishable in state prison. Specifically, sentences to state prison are now mainly limited to registered sex offenders and individuals with a current or prior serious or violent "strike" offenses. In addition to the serious, violent, registerable offenses eligible for state prison incarceration, there are approximately 70 felonies which have be specifically excluded from eligibility for local custody (i.e., the sentence for which must be served in state prison). (Pen. Code, § 1170(h).)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 537 will add to the list of serious crimes a host of offenses from child abuse resulting in death to use of a hostage as a human shield in order to evade arrest. Due to realignment in 2011, many felons guilty of ‘non-serious’ crimes end up serving their terms in county jails instead of in state penitentiaries. This also results in these felons being released under the supervision of overburdened county probation departments who, unfortunately, cannot give these cases the attention they need. We send the wrong message to criminals and their victims when crimes such as human trafficking, terrorism through use of an explosive device, and others of similar severity are treated as ‘non-serious’ offenses.”
   
2. The Three Strikes Reform Initiative of 2012: Proposition 36 was passed by California voters in 2012. The initiative narrowed California’s Three Strikes Law. In detail, the initiative:
   
   • Revised the Three Strikes Law to impose a 25-to-life sentence only when a new felony conviction is serious or violent, except continues to impose a 25-to-life sentence if a third strike conviction was for certain non-serious, non-violent sex or drug offenses, or involved firearm possession.
     
   • Maintained a life-sentence penalty for felons with a non-serious, non-violent third strike if the prior convictions were for rape, murder, or child molestation.
     
   • Provides that repeat offenders who commit a new non-violent, non-serious crime receive double the ordinary sentence instead of a 25-to-life term.
     
   • Allows prisoners currently serving life sentences for non-serious, non-violent crimes to apply for a sentence reduction. However, a judge can reduce the 25-to-life sentence to a term of years no less than double an ordinary sentence if the judge determines that the sentence reduction would not cause “an unreasonable risk to public safety.”
     

The following provisions of the Three Strikes Law were not modified by the 2012 Initiative and remain in effect:

• • Provides that where a defendant is convicted of any felony with a prior conviction for a single serious or violent felony, the sentence imposed must be twice the term otherwise provided as punishment. (Pen. Code § 667, subd. (d)(1) and Pen. Code § 1170.12, subd. (c)(1).)
    
  • States that affected defendants may not receive probation, there is no limitation on the aggregate term, sentencing credits are limited to 20% of the term (instead of the usual 50%), and any additional convictions must be imposed consecutively. (Pen. Code § 667, subd. (c) and Pen. Code § 1170.12, subd. (a).)
    
  • Specifies that a person sentenced under "Three Strikes" may not be committed to any facility other than prison.
    
  • Provides that "Three Strikes" has no "washout" period – any prior serious or violent felony shall be charged regardless of when it occurred.
    

1. This Bill Would Expand the Three Strikes Law by Creating Additional Serious Felonies: In general, crimes on the serious felonies list are considered "strikes" for purposes of California's Three Strikes law. However, Proposition 36, which was passed by California voters on November 6, 2012, specifies that only the crimes that were included in the “serious felonies" list prior to November 7, 2012 shall be treated as strikes for purposes of the three-strikes law. (Pen. Code, § 1170.125, Prop. 36, November 7, 2012.)

This bill expands the list of “serious felonies” and includes them as “strikes” by updating the Three Strikes Law to reflect the statutes as they exist on January 1, 2018.

Expanding the crimes that qualify as “strikes” under the Three Strikes law will result in more individuals sent to state prison and will result in longer sentences for those individuals in State Prison.

1. This Bill Would Affect Criminal Justice Realignment: Criminal justice realignment created two classifications of felonies: those punishable in county jail and those punishable in state prison. Realignment limited which felons can be sent to state prison, thus requiring that more felons serve their sentences in county jails. A defendant convicted on a serious or violent felony, or a felony which requires registration as a sex offender is not eligible for realignment and faces a sentence in state prison. A defendant convicted of a realigned felony who has a prior serious or violent felony, or is required to register as a sex offender is disqualified from the realignment sentencing scheme and faces a state prison sentence. In addition to the serious, violent, registerable offenses eligible for state prison incarceration, there are approximately 70 felonies which have be specifically excluded from eligibility for local custody (i.e., the sentence for which must be served in state prison).
   
   This bill adds 13 crimes to the list of serious felonies. As a result, the bill increases the number of crimes for which defendants must serve their time in state prison and disqualifies an individual with a conviction for such a crime from a county jail realignment sentence at any point in the future.
   
2. Prison Overcrowding Problem: In January 2010, a three-judge panel issued a ruling ordering the State of California to reduce its prison population to 137.5% of design capacity because overcrowding was the primary reason that CDCR was unable to provide inmates with constitutionally adequate healthcare.  (Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK JFM P/NO. C01-1351 THE.)  The United State Supreme Court upheld the decision, declaring that “without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill” inmates in California’s prisons.  (Brown v. Plata (2011) 131 S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.) 
   
   After continued litigation, on February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:  143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and, 137.5% of design bed capacity by February 28, 2016.
   
   CDCR’s February 2017 monthly report on the prison population notes that the in-state adult institution population is currently 114,124 inmates, which amounts to 134.1% of design capacity.  This is an increase of 1.1% from February of last year.  Additionally, there are still 4,400 prisoners being housed out of state.  (http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly/TPOP1A/TPOP1Ad1702.pdf )
   
   The Governor’s January proposed budget for 2017-2018 anticipates that “[t]he adult inmate average daily population is projected to decrease from 129,015 in 2016-17 to 128,159 in 2017-18, a decrease of 856 inmates, or 0.7 percent.  The average daily parolee population is projected to increase from 43,686 in 2016-17 to 44,761 in 2017-18, an increase of 1,075 parolees, or 2.5 percent.  The decrease in the adult inmate population is due to a projected reduction related to the implementation of Proposition 57, the Public Safety and Rehabilitation Act of 2016, which offsets a projected increase in felon admissions.”  (http://ebudget.ca.gov/budget/2017-18/#/Department/5225)
   
   Thus, while CDCR is currently in compliance with the three-judge panel’s order on the prison population, the state needs to maintain a “durable solution” to prison overcrowding “consistently demanded” by the court.  (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).)
   
3. Argument in Support: According to the Los Angeles County Professional Peace Officers Association, “SB 537 will add to the list of serious crimes a host of offenses from child abuse to use of a hostage as a human shield in order to evade arrest. The wrong message is sent to criminals and their victims when crimes such as human trafficking, child abuse likely to result in great bodily harm, and terrorism through use of an explosive device, among others, are treated as ‘non-serious’ offenses. Indeed research shows that, among the crimes that apply under AB 109 reclassification are ‘use of explosives in acts of terrorism’ and some that ‘inflict cruel/inhumane corporal punishment on a child. It boggles the mind that anyone would consider those offenses nonviolent.”
   
4. Argument in Opposition: According to The California Public Defenders Association, “AB 537 would add some seventeen categories of crimes to the Penal Code’s already bloated list of serious felonies. Many of these strain the definition, and common perceptions, of serious crimes. Examples are proposed new paragraph (55) Penal Code section 1192.7, subdivision (c) felony failure to stop for a pursuing peace officer in violation of three or more traffic laws carrying a point count of at least one each. Another example is proposed new paragraph (57), which would, for the first time, add a purely financial crime to the list of serious felonies.

“AB 537 would re-overcrowd California’s prisons. That would dash California’s hopes, which are finally emerging after several years of ending federal oversight and federal decisions of who gets released regardless of California’s laws. Every offense listed in AB 537 is already a crime, and almost all of them already mandate state prison. AB 537 would increase the length of those sentences for no good reason, and with undesirable results. It should not become law.”

1. Related Legislation:
   
   1. AB 27 (Melendez) adds specified sexual assault offenses to the list of violent felonies codified in the Penal Code. AB 27 is awaiting hearing in the Assembly Appropriations Committee.
      
   2. AB 197 (Kiley) adds a number of specified felony offenses to the violent felonies list. AB 197 is set for hearing on April 4, 2017 in this committee.
      
   3. SB 75 (Bates) adds vehicular manslaughter, human trafficking involving a minor, assault with a deadly weapon, solicitation of murder, rape under various specified circumstances, and grand theft of a firearm as violent felonies for purposes of imposing specified sentence enhancements. The bill would also make conforming changes. SB 75 is set for hearing on April 4, 2017 in the Senate Public Safety Committee.
      
   4. SB 652 (Nielsen) defines as a “violent felony” the unlawful possession of a firearm by a person previously convicted of a felony enumerated as a violent felony. SB 652 is set for hearing on April 4, 2017 the Senate Public Safety Committee.
      
   5. SB 770 (Glazier) adds human trafficking, elder and dependent adult abuse, assault with a deadly weapon, rape under specified circumstances, discharge of a firearm at an occupied building, and specified crimes against peace officers and witnesses, as violent felonies for purposes of the above specified sentence enhancements. SB 770 is set for hearing on April 18, 2017 the Senate Public Safety Committee.
      
2. Prior Legislation: AB 1321 (Stone), of the 2013-2014 Legislative Session, would have added crimes to the list a serious felonies. AB 1321 was held in the Assembly Public Safety Committee.
   

REGISTERED SUPPORT / OPPOSITION:

Support

Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California Police Chiefs Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
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
Friends Committee on Legislation of California
Root and Rebound

Analysis Prepared by:

David Billingsley / PUB. S. /