UNFINISHED BUSINESS  

Bill No: SB 203

Author: Bradford (D), et al.

Amended: 7/27/20

Vote: 21

PRIOR VOTES NOT RELEVANT

ASSEMBLY FLOOR: 54-13, 8/30/20 - See last page for vote

SUBJECT: Juveniles: custodial interrogation

SOURCE: Anti-Recidivism Coalition

Human Rights Watch

National Center for Youth Law

Pacific Juvenile Defender Center

DIGEST:

This bill expands and extends protections for minors prior to a custodial interrogation by a law enforcement officer.

Assembly Amendments

delete the prior content of this bill and replace it with new provisions detailed below.

ANALYSIS: Existing federal law provides that no person shall “be compelled in any criminal case to be a witness against himself.” (U.S. Const., 5th Amend.)

Existing state law:

1. Provides that persons may not be compelled in a criminal cause to be a witness against themselves. (Cal. Const., art. I, § 15.)
2. Provides that a peace officer may, without a warrant, take into temporary custody a minor. Requires in any case where a minor is taken into temporary custody on the ground that there is reasonable cause for believing that such minor will be adjudged a ward of the court or charged with a criminal action, or that he has violated an order of the juvenile court or escaped from any commitment ordered by the juvenile court, the officer to advise such minor that anything he says can be used against him and shall advise him of his constitutional rights, including his right to remain silent, his right to counsel present during any interrogation, and his right to have counsel appointed if he is unable to afford counsel. (Welf. & Inst. Code, § 625.)
3. Requires, prior to a custodial interrogation, and before the waiver of any Miranda rights, a youth 15 years of age or younger consult with legal counsel in person, by telephone, or by video conference. Prohibits waiver of the consultation. (Welf. & Inst. Code, § 625.6, subd. (a).)
4. Requires the court, in adjudicating the admissibility of statements of a youth 15 years of age or younger made during or after a custodial interrogation, to consider the effect of failure to comply with the consultation requirement. (Welf. & Inst. Code, § 625.6, subd. (b).)
5. Specifies that the consultation requirement does not apply to the admissibility of statements of a youth 15 years of age or younger if both of the following criteria are met:
   1. The officer who questioned the youth reasonably believed the information he or she sought was necessary to protect life or property from an imminent threat; and
   2. The officer’s questions were limited to those questions that were reasonably necessary to obtain that information. (Welf. & Inst. Code, § 625.6, subd. (c).)
6. Exempts probation officers from complying with the consultation requirement in the normal course of their duties, as specified. (Welf. & Inst. Code, § 625.6, subd. (d).)
7. Requires the Governor to convene a panel of experts to study the effects and outcomes related to the implementation of the consultation requirement and requires the panel to produce a report by April 1, 2024. (Welf. & Inst. Code, § 625.6, subd. (e).)
8. Provides that the consultation requirement sunsets on January 1, 2025. (Welf. & Inst. Code, § 625.6, subd. (f).)
9. Requires, when a minor is taken into a place of confinement, the minor be advised that the minor has the right to make at least two telephone calls, one completed to a parent or guardian, or a responsible relative, or employer and one to an attorney. (Welf. & Inst. Code, § 627.)

This bill:

1. Requires that prior to any custodial interrogation and before the waiver of any Miranda rights, a youth of 17 years or younger must consult with legal counsel in person, by telephone, or by video conference.
   
2. Prohibits the waiver of such consultation with legal counsel.
   
3. Requires the court to consider a lack of consultation with legal counsel for the purposes of determining the admissibility of any statements made to law enforcement, as well as in determining the credibility of any officer who willfully failed to comply with the consult requirement.
   
4. Eliminates the sunset date of January 1, 2025, for similar protections that applied only to minors under the age of 16, making them permanent.
   
5. Eliminates the requirement that the Governor convene a panel of experts to examine the effects and outcomes of requiring minors under the age of 16 to consult with counsel prior to any interrogation or Miranda waiver.
   
6. Makes various legislative findings and declarations.

Background

Miranda Warnings. “Miranda warnings” are a series of admonitions that are typically given by police prior to interrogating a suspect of a crime. The purpose of Miranda warnings is to advise people that have been arrested of their constitutional right against self-incrimination. They are the product of the landmark Supreme Court decision Miranda v. Arizona (1966) 384 U.S. 436. In deciding that case, the Supreme Court imposed specific, constitutional requirements for the advice an officer must provide prior to engaging in custodial interrogation and held that statements taken without these warnings are inadmissible against the defendant in a criminal case. The Court summarized its decision as follows:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” (Id. at 444-45.)

Put more simply, “Miranda warnings” are meant to inform people who are arrested of their constitutional right not to be a witness against themselves. Police are not required to speak a specific set of words but generally must convey that the person has the right not to answer any questions, that anything the person does say can be used against them as evidence in a court of law, that the person has the right to an attorney, that if the person cannot afford an attorney one will be appointed at no cost, and that the person has the right to invoke these rights at any point in time during questioning.

Custodial Interrogation. In order for Miranda warnings to apply, an individual must be subjected to “custodial interrogation.” Custodial interrogation is a legal term of art that has been discussed in a prolific body of case law. Briefly stated, the term “custodial” refers to the suspect being in the custody of law enforcement. It does not require that the subject be in handcuffs or the back of a police car, but rather that the police have deprived the suspect of his or her freedom of action in some significant way. (R.I. v. Innis (1980) 446 U.S. 291, 298.) “Interrogation” relates to questioning by officers. Such questioning can be in the form of an officer asking the suspect direct questions, or it can be indirect in the form of comments or actions by the officer that the officer should know are likely to produce an incriminating reply. (Id. at 300-01.)

It is worth noting that there are several situations in which Miranda warnings, and therefore protections envisioned by this bill, would not apply. For example, spontaneous statements by a suspect are not considered to be the product of interrogation and therefore do not require Miranda warnings. (Id.) There are also exceptions to Miranda rule. One important exception is known as the “public safety” exception and allows police to ask questions of a suspect even in the absence of a Miranda waiver so long as they are “reasonably prompted by a concern for the public safety.” (N.Y. v. Quarles (1984) 467 U.S. 649, 656.) Under this exception, police could question a subject about a firearm that was left near a playground or the whereabouts of a missing person without having to first “mirandize” the suspect. (Id.)

Special Considerations for Youth. A growing body of research indicates that adolescents are less capable of understanding their constitutional rights than their adult counterparts, and also that they are more prone to falsely confessing to a crime they did not commit. (See Luna, Juvenile False Confessions: Juvenile Psychology, Police Interrogation Tactics, And Prosecutorial Discretion (2018) 18 Nev. L.J. 291, <https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1733&
context=nlj [as of Jul. 16, 2020].) The research suggests that “[b]ecause adolescents are more impulsive, are easily influenced by others (especially by figures of authority), are more sensitive to rewards (especially immediate rewards), and are less able to weigh in on the long-term consequences of their actions, they become more receptive to coercion.” (Id. at p. 297, citing various scientific journals.) The context of custodial interrogation is believed to exacerbate these risks. In fact, prior research has shown that 35 percent of proven false confessions were obtained from suspects under the age of 18. (Drizin & Leo, The Problem of False Confessions in the Post-DNA World (2004) 82 N. C. L. Rev. 891, pp. 906–907, <https://scholarship.law.unc.edu/nclr/vol82/iss3/3/ [as of Jul. 16, 2020].) As explained below, these considerations have caused this Legislature to approve measures in the past that would have required a minor to consult with an attorney prior to any waiver of Miranda rights.

In 2016, the Legislature passed SB 1052 (Lara), which would have required minors under the age of 18 to consult with an attorney prior to any custodial interrogation by a police officer. Governor Brown vetoed the bill. A similar measure that was ultimately enacted, SB 395 (Lara, Chapter 681, Statutes of 2017), was introduced the following year. As introduced, SB 395 was nearly identical to this bill and included 16 and 17 year olds. However, Assembly Floor amendments excluded 16 and 17 year olds and imposed a requirement that the Governor convene a panel of experts to review the implementation of SB 395, examine its outcomes and effects, and submit a report to the Governor and the Legislature. This bill will undo some provisions of the statute enacted by SB 395 by including 16 and 17 year olds in the protections from custodial interrogation and eliminating the Governor-appointed panel of experts.

San Francisco Ordinance. In 2018, the City and County of San Francisco enacted an ordinance that required its police department to abide by a policy that is substantially similar to this bill. (San Francisco City and County Ordinance No. 41-19 <https://sfbos.org/sites/default/files/o0041-19.pdf [as of Jul. 16, 2020].) The background and findings for adopting the ordinance contain citations to various publications that indicate there is a significant concern that youth may be unable to properly understand their rights, and may also falsely confess more often than adults. (Id. at pp. 1-3.)

Officer Credibility Determination. In addition to the expansion of Miranda waiver protections for minors who are 16 and 17 years old, this bill also requires a court to consider an officer’s willful failure to comply with those protections in determining credibility of the officer.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee, cost pressures (Local Funds/General Fund (GF) - Proposition 30) in the low millions of dollars annually for 482 cities and 58 counties to provide legal counsel to minors ages 16 and 17 prior to custodial interrogations. The Department of Justice reported approximately 43,000 juvenile arrests in 2019. The average hourly rate for attorneys in California is approximately $250. If 10%, or 4,300 of those arrested as juveniles are 16 or 17 years of age, annual costs across the state for legal services will be approximately $2.2 million dollars. Public defender costs vary across the state but, in most cases, suspects are not required to pay any fee for public defender services. These costs may be reimbursable by the state pursuant to requirements of Proposition 30. Costs to the GF will depend on whether the Commission on State Mandates determines these costs to be reimbursable.

SUPPORT: (Verified 8/29/20)

Anti-Recidivism Coalition (co-source)

Human Rights Watch (co-source)

National Center for Youth Law (co-source)

Pacific Juvenile Defender Center (co-source)

#cut50

ACLU of California

California Attorneys for Criminal Justice

California Department of Insurance

California Public Defenders Association

Californians for Safety and Justice

Center on Juvenile and Criminal Justice

Ceres Policy Research

Children Now

Children’s Defense Fund-California

City of Alameda

Coalition for Engaged Education

Communities United for Restorative Youth Justice

Drug Policy Alliance

Ella Baker Center for Human Rights

Everychild Foundation

Families United to End LWOP

Immigrant Legal Resource Center

Initiate Justice

John Burton Advocates for Youth

Los Angeles County Chief Executive Office

National Association of Social Workers, California Chapter

Re:Store Justice

San Francisco District Attorney’s Office

Silicon Valley De-Bug

Tides Advocacy

Unapologetically H.E.R.S.

Underground Grit

Unusual Suspects Theatre Company

W. Haywood Burns Institute

Youth Law Center

OPPOSITION: (Verified 8/29/20)

California District Attorneys Association

California State Sheriffs’ Association

Los Angeles County District Attorney’s Office

Orange County District Attorney’s Office

ASSEMBLY FLOOR: 54-13, 8/30/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Petrie-Norris, Quirk, Quirk-Silva, Reyes, Luz Rivas, Robert Rivas, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Waldron, Weber, Wood, Rendon

NOES: Bigelow, Brough, Chen, Choi, Cunningham, Flora, Gallagher, Kiley, Lackey, Mathis, Mayes, Obernolte, Patterson

NO VOTE RECORDED: Cooper, Megan Dahle, Daly, Diep, Eggman, Fong, Frazier, Irwin, Ramos, Rodriguez, Voepel, Wicks

Prepared by: Stephanie Jordan / PUB. S. /

8/31/20 0:45:10

**** END ****

SENATE THIRD READING

STR Bill Id:SB 203

Author:(Bradford)

As Amended Ver:July 27, 2020

Majority vote

SUMMARY:

Expands and extends protections for minors prior to custodial interrogation by law enforcement.

Major Provisions

1. Requires that prior to any custodial interrogation and before the waiver of any Miranda rights, a youth of 17 years or younger must consult with legal counsel in person, by telephone, or by video conference.
2. Prohibits the waiver of such consultation with legal counsel.
3. Requires the court to consider a lack of consultation with legal counsel for the purposes of determining the admissibility of any statements made to law enforcement, as well as in determining the credibility of any officer who willfully failed to comply with the consult requirement.
4. Eliminates the sunset date of January 1, 2025 for similar protections that applied only to minors under the age of 16, making them permanent.
5. Eliminates the requirement that the Governor convene a panel of experts to examine the effects and outcomes of requiring minors under the age of 16 to consult with counsel prior to any interrogation or Miranda waiver.
6. Makes legislative findings and declarations.

COMMENTS:

According to the Author:

"People can decide to give up their rights, but for that to be meaningful, they have to understand their rights. What we know now is children and youth have less capacity than adults to quickly grasp complicated concepts and understand the consequences of their actions especially in stressful circumstances like a custodial interrogation. If we ignore that fact, we undermine the justice system and ultimately the constitution.

"In practice, the system is flawed and can result in serious disproportionate consequences for youth. Most youth can understand their rights and what a waiver means, but what is needed to help them understand is different than what most adults need. SB 203 would ensure young people understand their rights."

Arguments in Support:

According to the bill's co-sponsor, the Pacific Juvenile Defender Center, "In our experience, youth who are 16 or 17 years of age are similarly in need of legal advice before they can meaningfully decide whether to waive their constitutional rights and talk to the police. The adolescent brain continues to develop slowly into the mid-twenties, and until then, youth can be overwhelmed by emotional and social responses, contributing to short-sighted choices. (Scott, Duell and Steinberg, Brain Development, Social Context and Justice Policy, 57 Wash. U. J. of Law & Pol'y (2018), p. 11.) Because police are allowed to lie and use trickery, fundamental fairness requires that youth up to the age of majority receive the advice of counsel before deciding whether to speak to the police - to assure that any statements are given voluntarily, with an understanding of the rights at stake.

"The United States Supreme Court recognized the 'incompetencies of youth' in their dealings with the police in J.D.B. v. North Carolina (2011) 564 U.S. 261. In recognizing the need for special rules for juveniles in deciding when Miranda warnings must be given, the Court spoke of the inherently coercive character of juveniles' interactions with the police. It noted that, 'children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them.' Not surprisingly, a huge proportion of statements later found involuntary by the appellate courts involve juvenile confessions.

Arguments in Opposition:

According to the California State Sheriffs' Association: "Existing law provides, until January 1, 2025, prior to a custodial interrogation, and before the waiver of any Miranda rights, a youth 15 years of age or younger shall consult with legal counsel in person, by telephone, or by video conference. Under current law, this consultation may not be waived. In opposing SB 395 (Chapter 681, Statutes of 2017), which created this provision, we argued that the bill exceeded what the United States Supreme Court had required on the matter. Law enforcement may simply want to talk to a minor, and even if the parent or guardian is notified in advance, this discussion would have to wait until counsel could consult with the minor if there was a chance that the interaction could fall under the bill's undefined umbrella of a custodial interrogation. By expanding the bill's reach to minors 17 years of age or younger, this problem is exacerbated.

"We must also object to the bill because it seeks to make these provisions permanent without the full benefit of the temporary "trial" period included in SB 395. Further, SB 203 eliminates the requirement that a panel be convened to examine the impacts of this law. We see no reason to expand this problematic program indefinitely while removing any notion that the program's outcomes will be the subject of appropriate review."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, cost pressures (Local Funds/General Fund (GF) - Proposition 30) in the low millions of dollars annually for 482 cities and 58 counties to provide legal counsel to minors ages 16 and 17 prior to custodial interrogations. The Department of Justice (DOJ) reported approximately 43,000 juvenile arrests in 2019. The average hourly rate for attorneys in California is approximately $250. If 10%, or 4,300 of those arrested as juveniles are 16 or 17 years of age, annual costs across the state for legal services will be approximately $2.2 million dollars. Public defender costs vary across the state but, in most cases, suspects are not required to pay any fee for public defender services. These costs may be reimbursable by the state pursuant to requirements of Proposition 30. Costs to the GF will depend on whether the Commission on State Mandates determines these costs to be reimbursable.

VOTES:

SENATE FLOOR: 37-0-2

YES: Allen, Archuleta, Bates, Beall, Borgeas, Bradford, Caballero, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

ABS, ABST OR NV: Atkins, Chang

ASM PUBLIC SAFETY: 6-1-1

YES: Jones-Sawyer, Bauer-Kahan, Kamlager, Quirk, Santiago, Mark Stone

NO: Lackey

ABS, ABST OR NV: Diep

ASM APPROPRIATIONS: 13-3-2

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Megan Dahle, Voepel

ABS, ABST OR NV: Diep, Fong

UPDATED:

VERSION: July 27, 2020

CONSULTANT: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0003220

Date of Hearing: August 18, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 203

Author:(Bradford) – As Amended Ver:July 27, 2020

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

SUMMARY:

This bill requires law enforcement to provide a person 17 years of age or younger access to legal counsel before the person waives their Miranda rights. Specifically, this bill:

1. Requires a court to consider a lack of consultation with legal counsel for the purposes of determining the admissibility of any statements made to law enforcement.
2. Eliminates the sunset date of January 1, 2025 for similar protections that applied only to minors under the age of 16, making them permanent.
3. Eliminates the requirement that the Governor convene a panel of experts to examine the effects and outcomes of requiring minors under the age of 16 to consult with counsel prior to any interrogation or Miranda waiver.

FISCAL EFFECT:

Cost pressures (Local Funds/General Fund (GF) - Proposition 30) in the low millions of dollars annually for 482 cities and 58 counties to provide legal counsel to minors ages 16 and 17 prior to custodial interrogations. The Department of Justice (DOJ) reported approximately 43,000 juvenile arrests in 2019. The average hourly rate for attorneys in California is approximately $250. If 10%, or 4,300 of those arrested as juveniles are 16 or 17 years of age, annual costs across the state for legal services will be approximately $2.2 million dollars. Public defender costs vary across the state but, in most cases, suspects are not required to pay any fee for public defender services. These costs may be reimbursable by the state pursuant to requirements of Proposition 30. Costs to the GF will depend on whether the Commission on State Mandates determines these costs to be reimbursable.

COMMENTS:

1. Purpose. According to the author:

People can decide to give up their rights, but for that to be meaningful, they have to understand their rights. What we know now is children and youth have less capacity than adults to quickly grasp complicated concepts and understand the consequences of their actions especially in stressful circumstances like a custodial interrogation. If we ignore that fact, we undermine the justice system and ultimately the Constitution.

1. Juvenile Interrogations. Existing law requires that, prior to any custodial interrogation, and before the waiver of any Miranda rights, a youth 15 years of age or younger must consult with legal counsel in person, by telephone or by video conference. This right cannot be waived. A custodial interrogation occurs when a suspect is questioned by police and is not free to leave. A growing body of research indicates that adolescents are less capable of understanding their constitutional rights than their adult counterparts, and also that they are more prone to falsely confessing to a crime they did not commit. The Legislature enacted SB 395 (Lara), Chapter 681, Statutes of 2017, which provided mandatory counsel to juveniles 15 years of age or under before they could waive their Miranda rights. Part of that statute also convened a taskforce of experts to consider the impact of providing counsel to juveniles under the age of 16. That panel has not yet reported back to the Legislature regarding its findings.
2. Prior Legislation. SB 1052 (Lara), of the 2015-2016 Legislative Session, was similar to this bill in that it would have required that a youth under the age of 18 consult with counsel prior to a custodial interrogation and before waiving any specified rights. SB 1052 was vetoed by Governor Brown.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: August 5, 2020

Counsel: Matthew Fleming

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 203

Author:(Bradford) – As Amended Ver:July 27, 2020

SUMMARY: Expands and extends protections for minors prior to custodial interrogation by law enforcement. Specifically, this bill:

1. Requires that prior to any custodial interrogation and before the waiver of any Miranda rights, a youth of 17 years or younger must consult with legal counsel in person, by telephone, or by video conference.
   
2. Prohibits the waiver of such consultation with legal counsel.
   
3. Requires the court to consider a lack of consultation with legal counsel for the purposes of determining the admissibility of any statements made to law enforcement, as well as in determining the credibility of any officer who willfully failed to comply with the consult requirement.
   
4. Eliminates the sunset date of January 1, 2025 for similar protections that applied only to minors under the age of 16, making them permanent.
   
5. Eliminates the requirement that the Governor convene a panel of experts to examine the effects and outcomes of requiring minors under the age of 16 to consult with counsel prior to any interrogation or Miranda waiver.
   
6. Makes legislative findings and declarations.
   

EXISTING FEDERAL LAW: States that no person shall “be compelled in any criminal case to be a witness against himself.” (U.S. Const. Amend. V.)

EXISTING LAW:

1. States that persons may not be compelled in a criminal cause to be a witness against themselves. (Cal. Const., Art. I, Sec. 15.)
   
2. Requires, prior to a custodial interrogation, and before the waiver of any Miranda rights, a youth 15 years of age or younger shall consult with legal counsel in person, by telephone, or by video conference. Prohibits waiver of the consultation. (Welf. and Inst. Code, § 625.6, subd. (a).)
   
3. Requires the court, in adjudicating the admissibility of statements of a youth 15 years of age or younger made during or after a custodial interrogation, to consider the effect of failure to comply with the consultation requirement. (Welf. and Inst. Code, § 625.6, subd. (b).)
   
4. Specifies that the consultation requirement does not apply to the admissibility of statements of a youth 15 years of age or younger if both of the following criteria are met:
   
   1. The officer who questioned the youth reasonably believed the information he or she sought was necessary to protect life or property from an imminent threat; and
      
   2. The officer’s questions were limited to those questions that were reasonably necessary to obtain that information. (Welf. and Inst. Code, § 625.6, subd. (c).)
      
5. Exempts probation officers from complying with the consultation requirement in their normal course of duties, as specified. (Welf. and Inst. Code, § 625.6, subd. (d).)
   
6. Requires the Governor to convene a panel of experts to study the effects and outcomes related to the implementation of the consultation requirement and produce a report by January 1, 2024. (Welf. and Inst. Code, § 625.6, subd. (e).)
   
7. Sunsets the consultation requirement on January 1, 2025. (Welf. and Inst. Code, § 625.6, subd. (f).)
   
8. Provides that a peace officer may, without a warrant, take into temporary custody a minor. (Welf. & Inst. Code, § 625)
9. Provides that in any case where a minor is taken into temporary custody on the ground that there is reasonable cause for believing that such minor will be adjudged a ward of the court or charged with a criminal action, or that he has violated an order of the juvenile court or escaped from any commitment ordered by the juvenile court, the officer shall advise such minor that anything he says can be used against him and shall advise him of his constitutional rights, including his right to remain silent, his right to counsel present during any interrogation, and his right to have counsel appointed if he is unable to afford counsel. (Welf. & Inst. Code, § 625, subd. (c).)
10. Provides that when a minor is taken into a place of confinement the minor shall be advised that he has the right to make at least two telephone calls, one completed to a parent or guardian, or a responsible relative, or employer and one to an attorney. (Welf. & Inst. Code, § 627.)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “People can decide to give up their rights, but for that to be meaningful, they have to understand their rights. What we know now is children and youth have less capacity than adults to quickly grasp complicated concepts and understand the consequences of their actions especially in stressful circumstances like a custodial interrogation. If we ignore that fact, we undermine the justice system and ultimately the constitution.

“In practice, the system is flawed and can result in serious disproportionate consequences for youth. Most youth can understand their rights and what a waiver means, but what is needed to help them understand is different than what most adults need. SB 203 would ensure young people understand their rights.”

1. Miranda Warnings: “Miranda warnings” are a series of admonitions that are typically given by police prior to interrogating a suspect of a crime. The purpose of Miranda warnings is to advise people that have been arrested of their constitutional right against self-incrimination. They are the product of the landmark Supreme Court decision Miranda v. Arizona (1966) 384 U.S. 436. In deciding that case, the Supreme Court imposed specific, constitutional requirements for the advice an officer must provide prior to engaging in custodial interrogation and held that statements taken without these warnings are inadmissible against the defendant in a criminal case.

The Court summarized its decision as follows: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." (Id. at 444-45.)

Put more simply, “Miranda warnings” are meant to inform people who are arrested of their constitutional right not to be a witness against themselves. Police are not required to speak a specific set of words but generally must convey that the person has the right not to answer any questions, that anything the person does say can be used against them as evidence in a court of law, that the person has the right to an attorney, that if the person cannot afford an attorney one will be appointed at no cost, and that the person has the right to invoke these rights at any point in time during questioning.

1. Custodial Interrogation: In order for Miranda warnings to apply, an individual must be subjected to “custodial interrogation.” Custodial interrogation is a legal term of art that has been discussed in a prolific body of case law. Briefly stated, the term “custodial” refers to the suspect being in the custody of law enforcement. It does not require that the subject be in handcuffs or the back of a police car, but rather that the police have deprived the suspect of his or her freedom of action in some significant way. (R.I. v. Innis (1980) 446 U.S. 291, 298.) “Interrogation” relates to questioning by officers. Such questioning can be in the form of an officer asking the suspect direct questions, or it can be indirect in the form of comments or actions by the officer that the officer should know are likely to produce an incriminating reply. (Id. at 300-01.)
   
   It is worth noting that there are several situations in which Miranda warnings, and therefore protections envisioned by this bill, would not apply. For example, spontaneous statements by a suspect are not considered to be the product of interrogation and therefore do not require Miranda warnings. (Id.) There also exceptions to Miranda rule. One important exception is known as the “public safety” exception and allows police to ask questions of a suspect even in the absence of a Miranda waiver so long as they are “reasonably prompted by a concern for the public safety.” (N.Y. v. Quarles (1984) 467 U.S. 649, 656.) Under this exception, police could question a subject about a firearm that was left near a playground or the whereabouts of a missing person without having to first “mirandize” the suspect. (Id.)
   
2. Special Considerations for Youth: A growing body of research indicates that adolescents are less capable of understanding their constitutional rights than their adult counterparts, and also that they are more prone to falsely confessing to a crime they did not commit. (See Luna, Juvenile False Confessions: Juvenile Psychology, Police Interrogation Tactics, And Prosecutorial Discretion (2018) 18 Nev. L.J. 291, available at: https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1733&context=nlj, [as of Jul. 16, 2020].) The research suggests that “[b]ecause adolescents are more impulsive, are easily influenced by others (especially by figures of authority), are more sensitive to rewards (especially immediate rewards), and are less able to weigh in on the long-term consequences of their actions, they become more receptive to coercion.” (Id. at 297, citing various scientific journals.) The context of custodial interrogation is believed to exacerbate these risks. In fact, prior research has shown that 35 percent of proven false confessions were obtained from suspects under the age of 18. (Drizin & Leo, The Problem of False Confessions in the Post-DNA World (2004), 82 N. C. L. Rev. 891, 906–907, available at: https://scholarship.law.unc.edu/nclr/vol82/iss3/3/, [as of Jul. 16, 2020].) As explained below, these considerations have caused this Legislature to approve measures in the past that would have required a minor to consult with an attorney prior to any waiver of Miranda rights.
   
   1. SB 1052 and Governor Brown’s Veto Message: SB 1052 (Lara) of the 2015-2016 Legislative Session was similar to this bill in that it would have required minors under the age of 18 to consult with an attorney prior to any custodial interrogation by a police officer. SB 1052 was passed by both houses, but was ultimately vetoed by Governor Brown. In his veto message Governor Brown stated:

“This bill presents profoundly important questions involving the constitutional right not to incriminate oneself and the ability of the police to interrogate juveniles. Ever since 1966, the rule has been that interrogations of criminal suspects be preceded by the Miranda warning of the right to remain silent and the right to have an attorney.

“In more cases than not, both adult and juvenile suspects waive these rights and go on to answer an investigator’s questions. Courts uphold these ‘waivers’ of rights as long as the waiver is knowing and voluntary. It is rare for a court to invalidate such a waiver.

“Recent studies, however, argue that juveniles are more vulnerable than adults and easily succumb to police pressure to talk instead of remaining silent. Other studies show a much higher percentage of false confessions in the case of juveniles.

“On the other hand, in countless cases, police investigators solve very serious crimes through questioning and the resulting admissions or statements that follow.

“These competing realities raise difficult and troubling issues and that is why I have consulted widely to gain a better understanding of what is at stake. I have spoken to juvenile judges, police investigators, public defenders, prosecutors and the proponents of this bill. I have also read several research studies cited by the proponents and the most recent cases dealing with juvenile confessions.

“After carefully considering all the above, I am not prepared to put into law SB 1052’s categorical requirement that juveniles consult an attorney before waiving their Miranda rights. Frankly, we need a much fuller understanding of the ramifications of this measure.

“In the coming year, I will work with proponents, law enforcement and other interested parties to fashion reforms that protect public safety and constitutional rights. There is much to be done.”

In the year immediately after SB 1052 was vetoed, the legislature passed, and Governor Brown signed, SB 395.

• 1. SB 395 (Lara) Chapter 681, Statutes of 2017: SB 395, in its final version, provided that a youth who is age 15 or younger is required to consult with counsel prior to waiving his or her Miranda rights. This consultation cannot be waived. In passing SB 395, the Legislature made findings and decelerations that “[p]eople under 18 years of age have a lesser ability as compared to adults to comprehend the meaning of their rights and the consequences of waiver” and that “a large body of research has established that adolescent thinking tends to either ignore or discount future outcomes and implications, and disregard long-term consequences of important decisions.” As introduced, SB 395 was nearly identical to this bill and included 16 and 17 year olds. SB 395 was amended on the Assembly floor on September 17, 2017. With those amendments, SB 395 excluded 16 and 17 year olds and imposed a requirement that the Governor convene an unpaid panel of experts to review the implementation of SB 395, examine its outcomes and effects, and generate a report for the Governor and the Legislature. This bill would effectively undo the final set of amendments to SB 395 by including 16 and 17 year olds in the protections from custodial interrogation and eliminating the governor-appointed panel of experts.
     

1. San Francisco Ordinance: In 2018, the City and County of San Francisco enacted an ordinance that required its police department to abide by a policy that is substantially similar to this bill. (San Francisco City and County Ordinance No. 41-19, available at: https://sfbos.org/sites/default/files/o0041-19.pdf, [as of Jul. 16, 2020].) The background and findings for adopting the ordinance contain citations to various publications that indicate there is a significant concern that youth may be unable to properly understand their rights, and may also falsely confess more often than adults. (Id. at pp. 1-3.)
   
2. Officer Credibility Determination: In addition to the expansion of Miranda waiver protections for minors age 16 and 17, this bill would also require a court to consider an officer’s willful failure to comply with those protections in determining credibility of the officer. Even without this explicit provision in the bill, a court would likely consider any officer’s willful non-compliance with state law when judging the officer’s credibility.
   
3. Argument in Support: According to the bill’s co-sponsor, the Pacific Juvenile Defender Center, “In our experience, youth who are 16 or 17 years of age are similarly in need of legal advice before they can meaningfully decide whether to waive their constitutional rights and talk to the police. The adolescent brain continues to develop slowly into the mid-twenties, and until then, youth can be overwhelmed by emotional and social responses, contributing to short-sighted choices. (Scott, Duell and Steinberg, Brain Development, Social Context and Justice Policy, 57 Wash. U. J. of Law & Pol’y (2018), p. 11.) Because police are allowed to lie and use trickery, fundamental fairness requires that youth up to the age of majority receive the advice of counsel before deciding whether to speak to the police - to assure that any statements are given voluntarily, with an understanding of the rights at stake.

“The United States Supreme Court recognized the ‘incompetencies of youth’ in their dealings with the police in J.D.B. v. North Carolina (2011) 564 U.S. 261. In recognizing the need for special rules for juveniles in deciding when Miranda warnings must be given, the Court spoke of the inherently coercive character of juveniles’ interactions with the police. It noted that, ‘children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them.’ Not surprisingly, a huge proportion of statements later found involuntary by the appellate courts involve juvenile confessions.

“Even youth who can recite the Miranda warnings by heart, often do not understand the words or legal concepts. A review of Miranda studies found that:

• Even among adults, one-third fail to meaningfully understand their ‘right’ as it applies to their right to silence.

• About 27 percent of juveniles wrongly believe that unsigned waivers afford them complete protection from incriminating evidence.

• Forty-two percent of juveniles falsely believe that interrogating officers are prevented from using “off-the-record” disclosures as incriminating evidence.

• About 19 percent of juvenile offenders inaccurately believe that the judge is entitled to a defense attorney’s disclosures regarding his or her client’s guilt; this percentage increases dramatically to 56 percent with regard to court-appointed counsel.

• Nearly 31 percent of juvenile detainees believe that their parents have a legal responsibility to assist the police in prosecuting them. (Drogin and Rogers, Criminal Justice: Juveniles and Miranda, 32 GPSolo (2015), pp. 70–71.)

“San Francisco County has already enacted an ordinance requiring that youth up to age 18 be advised by an attorney before a police interrogation may proceed. One of the motivations for the ordinance was the County Supervisors’ recognition that states and cities nationwide are rethinking the way minors are questioned by police, following high-profile incidents in which suspects have falsely confessed to crimes. (Sernoffsky, Proposed SF ordinance would require juveniles to have lawyers when interrogated, San Francisco Chronicle (Dec. 18, 2019).) The Supervisors unanimously passed the ordinance. (St. Clair, SF Board of Supervisors unanimously passes Jeff Adachi Youth Rights ordinance, San Francisco Chronicle (Mar. 1, 2019).)

“Aside from the tremendous harm caused to young people by wrongful conviction based on involuntary statements, the cost to the system may be enormous. An analysis of the cost of wrongful conviction in California found that improper police practices in relation to violations of rights in confessions carry an average cost of $620,832 per error. (Silbert, Hollway, and Larizadeh, Criminal Injustice: A Cost Analysis of Wrongful Convictions, Errors, and Failed Prosecutions in California's Criminal Justice System, Chief Justice Earl Warren Institute on Law and Social Policy, Berkeley School of Law (2015), p. 52.) And sadly, the rate of juvenile appellate challenges is extremely low, so many involuntary statements go unchallenged.

“As lawyers representing children, we so often meet young people who have no idea about the impact of what they have said to the police. The vast majority are youth of color whose families lack the resources to immediately hire a lawyer to go to the police station. When these youth realize what has happened, they lose faith that the system will treat them fairly. In providing 16 and 17-year-olds with the advice of counsel, some will still decide to waive their Miranda rights if this bill becomes law, but the decision will be made with a clear understanding of the rights they are giving up.

“As was the case with S.B. 395, this legislation will not impede legitimate law enforcement activities. It does not change longstanding exceptions to Miranda requirements for emergency situations. It leaves the determination of whether a confession is voluntary and therefore admissible at trial to the discretion of the judge. Advice may be given over the telephone or by video conference, as well as in person, so there should be no delay in law enforcement activities. We are not aware of any undue expense having been experienced in implementing S.B. 395. The law already requires that youth receive appointed counsel at the time of their initial detention hearing, so requiring the advice of counsel at the interrogation stage simply requires that counsel be involved at an earlier point.”

1. Argument in Opposition: According to the California State Sheriffs’ Association: “Existing law provides, until January 1, 2025, prior to a custodial interrogation, and before the waiver of any Miranda rights, a youth 15 years of age or younger shall consult with legal counsel in person, by telephone, or by video conference. Under current law, this consultation may not be waived. In opposing SB 395 (Chapter 681, Statutes of 2017), which created this provision, we argued that the bill exceeded what the United States Supreme Court had required on the matter. Law enforcement may simply want to talk to a minor, and even if the parent or guardian is notified in advance, this discussion would have to wait until counsel could consult with the minor if there was a chance that the interaction could fall under the bill’s undefined umbrella of a custodial interrogation. By expanding the bill’s reach to minors 17 years of age or younger, this problem is exacerbated.

“We must also object to the bill because it seeks to make these provisions permanent without the full benefit of the temporary ‘trial’ period included in SB 395. Further, SB 203 eliminates the requirement that a panel be convened to examine the impacts of this law. We see no reason to expand this problematic program indefinitely while removing any notion that the program’s outcomes will be the subject of appropriate review.”

1. Prior Legislation:
   
   1. SB 395 (Lara) Chapter 681, Statutes of 2017 was similar to this bill and required that a youth 15 years of age or younger consult with legal counsel in person, by telephone, or by video conference prior to a custodial interrogation and before waiving any of the above-specified rights.
      
   2. SB 1052 (Lara), of the 2015-2016 Legislative Session, was similar to this bill in that it would have required that a youth under the age of 18 consult with counsel prior to a custodial interrogation and before waiving any specified rights. SB 1052 was vetoed by Governor Brown.

REGISTERED SUPPORT / OPPOSITION:

Support

#cut50

Alameda; City of

American Civil Liberties Union/northern California/southern California/san Diego and Imperial Counties

Anti Recidivism Coalition

California Attorneys for Criminal Justice

California Department of Insurance

California Public Defenders Association

Californians for Safety and Justice

Center on Juvenile and Criminal Justice

Ceres Policy Research

Children Now

Children's Defense Fund-california

Coalition for Engaged Education

Communities United for Restorative Youth Justice (CURYJ)

Drug Policy Alliance

Ella Baker Center for Human Rights

Everychild Foundation

F.u.e.l.- Families United to End Lwop

Human Rights Watch

Immigrant Legal Resource Center

Initiate Justice

John Burton Advocates for Youth

Los Angeles County Chief Executive Office

National Association of Social Workers, California Chapter

National Center for Youth Law

Pacific Juvenile Defender Center

Re:store Justice

San Francisco District Attorney's Office

Silicon Valley De-bug

The Greenlining Institute

The Unusual Suspects Theatre Company

The W. Haywood Burns Institute

Tides Advocacy

Unapologetically Hers

Underground Grit

Youth Law Center

Oppose

California District Attorneys Association

California State Sheriffs' Association

Orange County District Attorney

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 203

Author: Bradford (D)

Amended: 1/6/20

Vote: 21

SENATE ENERGY, U. & C. COMMITTEE: 12-0, 1/15/20

AYES: Hueso, Moorlach, Bradford, Chang, Dodd, Hertzberg, Hill, McGuire, Rubio, Skinner, Stern, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Telecommunications: Moore Universal Telephone Service Act

SOURCE: Author

DIGEST:

This bill clarifies the definition of “household” for the purposes of Lifeline program eligibility.

ANALYSIS:

Existing law:

1. Requires every telecommunications carrier providing interstate telecommunications services to contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient methods specified by the Federal Communications Commission (FCC) for preserving and advancing universal service. Contributions are deposited into the Universal Service Fund, which is administered by the Universal Service Administrative Company. (47 United States Code §254)
2. Makes various definitions for the purpose of the Lifeline program, including defining a “household.” For the purpose of the federal Lifeline program, a “household” is any individual or group of individuals who are living together at the same address as one economic unit.  A household may include related and unrelated persons.  An “economic unit” consists of all adult individuals contributing to and sharing in the income and expenses of a household. An adult is any person 18 years or older. If an adult has no or minimal income, and lives with someone who provides financial support to him/her, both people shall be considered part of the same household. Children under the age of 18 living with their parents or guardians are considered to be part of the same household as their parents or guardians. Only one Lifeline subscription per household is allowed. A violation of the one-per-household limitation constitutes a violation of FCC rules and will result in the subscriber's de-enrollment from the program. (47 Code of Federal Regulations §§54.400 and 54.410)
3. Requires the California Public Utilities Commission (CPUC) to designate a class of Lifeline service necessary to meet minimum communications needs and set rates and eligibility criteria for that service. (Public Utilities Code §873)
4. Establishes eligibility criteria for the California Lifeline program.
5. Defines a “household” for Lifeline eligibility determinations as a residential dwelling that is the principal place of residence of the Lifeline telephone service subscriber. This definition excludes any industrial, commercial, or other nonresidential building. (Public Utilities Code §872)
6. Specifies that a Lifeline program participant may only obtain one Lifeline subscription at his or her principal residence. No other member of the participant’s family or household at that residence is eligible for Lifeline telephone service. An applicant for Lifeline telephone service may report only one address as the principal place of residence. (Public Utilities Code §878)

This bill:

1. Redefines a “household” for the purposes of determining Lifeline eligibility as any group of individuals, including the subscriber, who live together at the same address as one economic unit. A household may include related and unrelated individuals. If an adult has no, or minimal, income and lives with someone who provides financial support to that adult, both persons will be considered part of the same household. A child under 18 years of age and living with a parent or guardian will be considered part of the same household as the parent or guardian.
2. Clarifies that multiple Lifeline telephone service subscribers may maintain the same address if they are not in the same household.

Background

Lifeline programs: federal and state. Lifeline is one of several universal service programs addressing the affordability of communications services. California Lifeline subscribers can participate in both the federal Lifeline program and a California Lifeline program. The federal Lifeline program is regulated by the FCC, and the state Lifeline program is regulated by the CPUC. Both programs are funded through surcharges on telephone bills.

Prior to the 1984 break-up of the Bell telephone system, long-distance services helped subsidize local telephone costs. Long-distance and local telephone services were separated after AT&T’s divestment of the Bell Operating Companies. To address concerns about the affordability of local telephone service stemming from this separation, the California Legislature passed AB 1348 (Moore, Chapter 1143, Statutes of 1983), which was also known as the Moore Universal Telephone Service Act. Originally, this Act funded Lifeline services through a tax on telecommunications providers. However, in 1987, the Legislature passed AB 386 (Moore, Chapter 163, Statutes of 1987) to re-establish the Lifeline program with funding collected by a surcharge instead of a tax. In 1985, the Reagan FCC established the federal Lifeline program.

The Legislative Analyst’s Office (LAO) review and recommendations. The supplemental report to the 2018-19 Budget Act required the LAO to review the Lifeline program’s caseload and budget and make recommendations on how the CPUC could improve the program’s enrollment. In April 2019, the LAO released a report addressing these requirements. The LAO’s report noted that 40 percent of eligible households are currently enrolled in the program, and the LAO recommended that the Legislature direct the CPUC to evaluate the reasons why eligible households do not enroll in the program. While the LAO noted that the Legislature could wait for results from this evaluation before requiring program changes, the report also noted that the Legislature could consider adopting changes that appear to be relatively low cost and a benefit to enrollment.

The “household” issue. This bill clarifies the definition of a “household” for the purposes of enrollment to ensure that the California definition conforms to the definition at the federal level. To the extent that this clarification encourages eligible individuals to enroll in the Lifeline program, it is likely relatively low cost change that is consistent with the LAO report. When Lifeline was established, the program was intended to subsidize one wireline telephone line per household. As a result, Lifeline subscribers have generally been limited on the ability to have more than one program subscription at a single address. As the program has evolved to encompass wireless and broadband services at the federal level, the FCC has also modified the definition of a “household” for the purposes of determining program eligibility. The FCC’s definition change intended to recognize more complex co-housing and living situations in which economically independent persons live at the same address.

While the federal regulatory definition of a household has been clarified to enable multiple lifeline subscribers to share the same address, California’s statutory definition of a household does not conform to the federal definition. Currently, existing state law defines a household for Lifeline eligibility as “…a residential dwelling that is the principal place of residence of the Lifeline telephone service subscriber.” Existing state law also prohibits any other member of a household from having a Lifeline subscription. The lack of conformity to the federal definition of a household does not provide clarity under state law as to whether otherwise eligible individuals with the same address who function as separate households may have separate Lifeline subscriptions. This bill conforms the definition of a household in state law to the definition in current federal law. The bill also clarifies that multiple Lifeline subscribers may maintain the same address if they are not part of the same household. These changes are consistent with efforts to ensure that otherwise eligible economically independent individuals sharing the same address can enroll in the Lifeline program.

Recent federal changes may negatively impact Lifeline subscribers using the program to offset the cost of basic telephone service. The Lifeline program provides households at or below 135 percent of the federal poverty level with a monthly subsidy to obtain one fixed or wireless line with a participating communications provider, which may include a data package. California Lifeline subscribers may receive $13.75 per month from the state program, which is provided in addition to the subsidy from the federal program. Lifeline subsidies are provided to carriers in the form of reimbursement for services provided to Lifeline program participants.

In November 2019, the FCC upheld a decision to transition Lifeline subsidies away from basic telephone service and instead support broadband. Under this decision, the FCC will reduce the federal Lifeline subsidy from $9.25 to $7.25 for services that do not meet its standard for broadband as of December 1, 2019. The FCC’s decision is also scheduled to reduce that subsidy further from $7.25 to $5.25 for services that do not meet its definition of broadband by December 1, 2020. These reductions are primarily aimed at reducing Lifeline support for basic home telephone services. The FCC’s order indicates that over time, it intends to only support broadband services in the federal Lifeline program.

To address concerns from various stakeholders regarding the impact of these reductions on wireline Lifeline customers, the CPUC considered the use of the California Lifeline program’s resources to offset the federal subsidy reductions. On December 31, 2019, the CPUC issued a proposed decision authorizing the California Lifeline program to replace the $2.00 reduction of monthly federal support for wireline service plans from December 1, 2019, through November 30, 2020. As a result, California participants can still receive a total of $23 per month towards their Lifeline service at least until November 30, 2020. However, the CPUC has not committed to offsetting any further reductions in the federal Lifeline subsidy. In its decision, the CPUC stated, “We affirm that any action that we take with respect to this one-year period should have no precedential weight for determining whether to authorize the Lifeline fund to replace any reduction in federal subsidies for any or all Lifeline participants going forward.”

During the CPUC’s proceeding, several stakeholders expressed concerns that replacing federal subsidies would result in significant costs; however, according to data from the CPUC, only 249,403 of the Lifeline program’s 1.6 million participants use the program to obtain affordable wireline service. While some rural counties are disproportionately reliant on wireline services, approximately 38 percent of the state’s 249,403 Lifeline wireline subscribers are residents of Los Angeles County.

Related/Prior Legislation

SB 704 (Bradford, 2019) would have made various changes to the Lifeline program, including conforming the definition of a household for program eligibility to the definition in federal regulation. The bill was vetoed.

AB 2652 (Quirk, 2018) would have required the CPUC to consider a 60-day portability freeze for Lifeline participants seeking to change providers. The bill also would have required the CPUC to adopt rules modifying the program’s enrollment and recertification process. The bill was vetoed.

AB 2537 (Carrillo, 2018) would have established the Lifeline Oversight Board and specify the Board’s membership and duties. The bill died in the Senate.

AB 2570 (Quirk, Chapter 577, Statutes of 2016) required the CPUC to adopt a portability freeze rule for the Lifeline program by January 15, 2017. The bill required the CPUC to consider a 60-day freeze as part of its proceeding.

AB 1407 (Bradford, 2014) would have phased out the existing Lifeline program for basic landline service and created a new Lifeline discount of $11.85 per month for voice communication services from a telephone corporation or eligible wireless and Voice over Internet Protocol providers. The bill died in the Senate.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 1/21/20)

The Greenlining Institute

OPPOSITION: (Verified 1/21/20)

None received

ARGUMENTS IN SUPPORT: According to the author:

SB 203 ensures California’s requirements for the LifeLine universal telecommunications service program mirror federal requirements. The LifeLine program provides critical assistance to many households across California, ensuring all have access to basic service — especially low-income and disadvantaged families.

Prepared by: Sarah Smith / E., U., & C. / (916) 651-4107

1/22/20 15:23:42

**** END ****

SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS

Senator Ben Hueso, Chair

2019 - 2020 Regular

Bill No: Hearing Date: 1/15/2020

SUBJECT:

DIGEST: This bill clarifies the definition of a household for the purposes of Lifeline program eligibility.

ANALYSIS:

Existing law:

1. Requires every telecommunications carrier providing interstate telecommunications services to contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient methods specified by the Federal Communications Commission (FCC) for preserving and advancing universal service. Contributions are deposited into the Universal Service Fund, which is administered by the Universal Service Administrative Company. (47 United States Code §254)
2. Makes various definitions for the purpose of the Lifeline program, including defining a “household” for the purpose of the federal any individual or group of individuals who are living together at the same address as one economic unit. A household may include related and unrelated persons. An “economic unit” consists of all adult individuals contributing to and sharing in the income and expenses of a household. An adult is any person 18 years or older. If an adult has no or minimal income, and lives with someone who provides financial support to him/her, both people shall be considered part of the same household. Children under the age of 18 living with their parents or guardians are considered to be part of the same household as their parents or guardians. Only one Lifeline subscription per household is allowed. A violation of the one-per-household limitation constitutes a violation of FCC rules and will result in the subscriber's de-enrollment from the program. (47 Code of Federal Regulations §§54.400 and 54.410)
3. Requires the California Public Utilities Commission (CPUC) to designate a class of Lifeline service necessary to meet minimum communications needs and set rates and eligibility criteria for that service. (Public Utilities Code §873)
4. Establishes eligibility criteria for the California Lifeline program.
5. Defines a “household” for Lifeline eligibility determinations as a residential dwelling that is the principal place of residence of the Lifeline telephone service subscriber. This definition excludes any industrial, commercial, or other nonresidential building. (Public Utilities Code §872)
6. Specifies that a Lifeline program participant may only obtain one Lifeline subscription at his or her principal residence. No other member of the participant’s family or household at that residence is eligible for Lifeline telephone service. An applicant for Lifeline telephone service may report only one address as the principal place of residence. (Public Utilities Code §878)

This bill:

1. Redefines a “household” for the purposes of determining Lifeline eligibility as any group of individuals, including the subscriber, who live together at the same address as one economic unit. A household may include related and unrelated individuals. If an adult has no, or minimal, income and lives with someone who provides financial support to that adult, both persons will be considered part of the same household. A child under 18 years of age and living with a parent or guardian will be considered part of the same household as the parent or guardian.
2. Clarifies that multiple lifeline telephone service subscribers may maintain the same address if they are not in the same household.

Background

Lifeline programs: federal and state. Lifeline is one of several universal service programs addressing the affordability of communications services. California Lifeline subscribers can participate in both the federal Lifeline program and a California Lifeline program. The federal Lifeline program is regulated by the FCC, and the state Lifeline program is regulated by the CPUC. Both programs are funded through surcharges on telephone bills.

Prior to the 1984 break-up of the Bell telephone system, long-distance services helped subsidize local telephone costs. Long-distance and local telephone services were separated after AT&T’s divestment of the Bell Operating Companies. To address concerns about the affordability of local telephone service stemming this separation, the California Legislature passed AB 1348 (Moore, Chapter 1143, Statutes of 1983), which was also known as the Moore Universal Telephone Service Act. Originally, this act funded Lifeline services through a tax on telecommunications providers. However, in 1987, the Legislature passed AB 386 (Moore, Chapter 163, Statutes of 1987) to re-establish the Lifeline program with a funding collected by a surcharge instead of a tax. In 1985, the Reagan FCC established the federal Lifeline program.

The Legislative Analyst’s Office (LAO) review and recommendations. The supplemental report to the 2018-19 Budget Act required the LAO to review the Lifeline program’s caseload and budget and make recommendations on how the CPUC could improve the program’s enrollment. In April 2019, the LAO released a report addressing these requirements. The LAO’s report noted that 40 percent of eligible households are currently enrolled in the program, and the LAO recommended that the Legislature direct the CPUC to evaluate the reasons why eligible households do not enroll in the program. While the LAO noted that the Legislature could wait for results from this evaluation before requiring program changes, the report also noted that the Legislature could consider adopting changes that appear to be relatively low cost and a benefit to enrollment.

The “household” issue. This bill clarifies the definition of a “household” for the purposes of enrollment to ensure that the California definition conforms to the definition at the federal level. To the extent that this clarification encourages eligible individuals to enroll in the Lifeline program, it is likely relatively low cost change that is consistent with the LAO report. When Lifeline was established, the program was intended to subsidize one wireline telephone line per household. As a result, Lifeline subscribers have generally been limited on the ability to have more than one program subscription at a single address. As the program has evolved to encompass wireless and broadband services at the federal level, the FCC has also modified the definition of a “household” for the purposes of determining program eligibility. The FCC’s definition change intended to recognize more complex co-housing and living situations in which economically independent persons live at the same address.

While the federal regulatory definition of a household has been clarified to enable multiple lifeline subscribers to share the same address, California’s statutory definition of a household does not conform to the federal definition. Currently, existing state law defines a household for Lifeline eligibility as “…a residential dwelling that is the principal place of residence of the Lifeline telephone service subscriber.” Existing state law also prohibits any other member of a household from having a Lifeline subscription. The lack of conformity to the federal definition of a household does not provide clarity under state law as to whether otherwise eligible individuals with the same address who function as separate households may have separate Lifeline subscriptions. This bill conforms the definition of a household in state law to the definition in current federal law. The bill also clarifies that multiple Lifeline subscribers may maintain the same address if they are not part of the same household. These changes are consistent with efforts to ensure that otherwise eligible economically independent individuals sharing the same address can enroll in the Lifeline program.

Recent federal changes may negatively impact Lifeline subscribers using the program to offset the cost of basic telephone service. The Lifeline program provides households at or below 135 percent of the federal poverty level with a monthly subsidy to obtain one fixed or wireless line with a participating communications provider, which may include a data package. California Lifeline subscribers may receive $13.75 per month from the state program, which is provided in addition to the subsidy from the federal program. Lifeline subsidies are provided to carriers in the form of reimbursement for services provided to Lifeline program participants.

In November 2019, the FCC upheld a decision to transition Lifeline subsidies away from basic telephone service and instead support broadband. Under this decision, the FCC will reduce the federal Lifeline subsidy from $9.25 to $7.25 for services that do not meet its standard for broadband as of December 1, 2019. The FCC’s decision is also scheduled to reduce that subsidy further from $7.25 to $5.25 for services that do not meet its definition of broadband by December 1, 2020. These reductions are primarily aimed at reducing Lifeline support for basic home telephone services. The FCC’s order indicates that over time, it intends to only support broadband services in the federal Lifeline program.

To address concerns from various stakeholders regarding the impact of these reductions on wireline Lifeline customers, the CPUC considered the use of the California Lifeline program’s resources to offset the federal subsidy reductions. On December 31, 2019, the CPUC issued a proposed decision authorizing the California Lifeline program to replace the $2.00 reduction of monthly federal support for wireline service plans from December 1, 2019, through November 30, 2020. As a result, California participants can still receive a total of $23 per month towards their Lifeline service at least until November 30, 2020. However, the CPUC has not committed to offsetting any further reductions in the federal Lifeline subsidy. In its decision, the CPUC stated, “We affirm that any action that we take with respect to this one-year period should have no precedential weight for determining whether to authorize the Lifeline fund to replace any reduction in federal subsidies for any or all Lifeline participants going forward.”

During the CPUC’s proceeding, several stakeholders expressed concerns that replacing federal subsidies would result in significant costs; however, according to data from the CPUC, only 249,403 of the Lifeline program’s 1.6 million participants use the program to obtain affordable wireline service. While San Diego, Los Angeles, and San Bernardino counties have the highest Lifeline enrollment in the state, more rural counties are less likely to have broadband available to a majority of households.

Prior/Related Legislation

SB 704 (Bradford, 2019) would have made various changes to the Lifeline program, including conforming the definition of a household for program eligibility to the definition in federal regulation. The bill was vetoed.

AB 2652 (Quirk, 2018) would have required the CPUC to consider a 60-day portability freeze for Lifeline participants seeking to change providers. The bill also would have required the CPUC to adopt rules modifying the program’s enrollment and recertification process. The bill was vetoed.

AB 2537 (Carrillo, 2018) would have established the Lifeline Oversight Board and specify the board’s membership and duties. The bill died in the Senate.

AB 2570 (Quirk, Chapter 577, Statutes of 2016) required the CPUC to adopt a portability freeze rule for the Lifeline program by January 15, 2017. The bill required the CPUC to consider a 60-day freeze as part of its proceeding.

AB 1407 (Bradford, 2014) would have phased out the existing Lifeline program for basic landline service and created a new Lifeline discount of $11.85 per month for voice communication services from a telephone corporation or eligible wireless and Voice over Internet Protocol providers. The bill died in the Senate.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT:

The Greenlining Institute

OPPOSITION:

None received.

ARGUMENTS IN SUPPORT: According to the Author:

SB 203 ensures California’s requirements for the LifeLine universal telecommunications service program mirror federal requirements. The LifeLine program provides critical assistance to many households across California, ensuring all have access to basic service — especially low-income and disadvantaged families.

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