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AB-3131 Correctional facilities: service of process.(2019-2020)



Current Version: 05/05/20 - Amended Assembly

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AB3131:v98#DOCUMENT

Amended  IN  Assembly  May 05, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3131

Introduced by Assembly Member Diep

February 21, 2020

An act to amend Section 7599.1 of the Government Code, and to amend Sections 459.5, 490.2, and 666 of the Penal Code, relating to crimes, and calling an election, to take effect immediately. An act to amend Section 4013 of, and to add Section 2085.2 to, the Penal Code, relating to correctional facilities.


LEGISLATIVE COUNSEL'S DIGEST


AB 3131, as amended, Diep. Petty theft: shoplifting: priors. Correctional facilities: service of process.
Existing law provides for service of process in civil actions. Existing law authorizes a summons to be served by personal delivery of a copy of the summons and of the complaint to the person to be served.
Existing law also establishes the state prison and various local correctional facilities, including county jails. Existing law governs the administration of county jails and those provisions authorize a person who may lawfully serve process to serve process upon a person who is incarcerated within any institution in this state. Existing law requires a sheriff or jailer upon whom a paper in a judicial proceeding, that is directed to a prisoner in the custody of the sheriff or jailer, is served, to deliver the paper to the prisoner, with a note thereon of the time of its service. Existing law makes the sheriff or jailer liable to the prisoner for all damages occasioned for neglecting to carry out that act.
This bill would enact similar provisions that would be applicable to service directed to a person who is incarcerated in the state prison. The bill would also provide that service pursuant to the provisions that are applicable to inmates of the state prison and persons incarcerated in other institutions constitutes service for purposes of civil actions, as specified.

(1)Existing law, the Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the electors at the November 4, 2014, statewide general election, makes the theft of money, labor, or property petty theft punishable as a misdemeanor, whenever the value of the property taken does not exceed $950. Proposition 47 requires shoplifting, defined as entering a commercial establishment with the intent to commit larceny if the value of the property taken does not exceed $950, to be punished as a misdemeanor.

This bill would allow a person who commits shoplifting after having 2 or more convictions for specified crimes to be punished with either a misdemeanor or a felony.

(2)Existing law, as amended by Proposition 47, allows petty theft to be punished as a misdemeanor or a felony if the person has been previously convicted of specified offenses, including petty theft, grand theft, burglary, or carjacking, but only if the person is either required to register as a sex offender or has been convicted of certain serious or violent offenses.

This bill would, if the Reducing Crime and Keeping California Safe Act of 2020 is not approved by voters at the November 3, 2020, statewide general election, allow petty theft or shoplifting to be punished as a misdemeanor or a felony if the person has been convicted 3 or more times of certain crimes, as specified.

(3)Existing law, also added by Proposition 47, requires the Director of Finance to calculate the savings accrued to the state from the implementation of Proposition 47 and to transfer that amount from the General Fund to the Safe Neighborhoods and Schools Fund, as provided.

This bill would require that this amount shall not be reduced because of the changes made by this bill, as specified.

(4)This bill would call a special election to be consolidated with the November 3, 2020, statewide general election. This bill would require the Secretary of State to submit the provisions of the bill that amend the initiative statute to the electors for their approval at the November 3, 2020, consolidated election.

This bill would declare that it is to take effect immediately as an act calling an election.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 2085.2 is added to the Penal Code, to read:

2085.2.
 (a) A person upon whom a paper in a judicial proceeding, that is directed to an inmate, is served, and who is designated to effect service upon inmates of the state prison shall forthwith deliver the paper to the inmate, with a note thereon of the time of its service. The person is liable to the prisoner for all damages occasioned thereby for neglecting to do so.
(b) Service directed to a person who is incarcerated in the state prison may be served by any person who may lawfully serve process.
(c) Service pursuant to this section constitutes service pursuant to Section 415.10 of the Code of Civil Procedure.

SEC. 2.

 Section 4013 of the Penal Code is amended to read:

4013.
 (a) A sheriff or jailer upon whom a paper in a judicial proceeding, directed to a prisoner in his or her custody, the custody of the sheriff or jailer, is served, shall forthwith deliver it the paper to the prisoner, with a note thereon of the time of its service. For a neglect to do so, he or she The sheriff or jailer is liable to the prisoner for all damages occasioned thereby. thereby for neglecting to do so.
(b) Service directed to a person who is incarcerated within any institution in this state may be served by any person who may lawfully serve process.
(c) Service pursuant to this section constitutes service pursuant to Section 415.10 of the Code of Civil Procedure.

SECTION 1.

This act shall be known as the Proposition 47 Reform Act.

SEC. 2.

The Legislature finds and declares all of the following:

(a)The Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the electors at the November 4, 2014, statewide general election, reduced penalties for lower level drug and property offenses. These offenses were reclassified from wobblers to misdemeanors, removing discretion from prosecutors to charge felonies.

(b)A study by the Public Policy Institution of California (PPIC) found that Proposition 47 had an effect on property crime. Statewide property crime increased after 2014. The study found that Proposition 47 contributed to a rise in larceny thefts, especially from motor vehicles. In 2013 and 2014, property crimes stayed at approximately 240 per 100,000 residents, but in 2015, after the initiative was adopted, the number rose to 450 property crimes per 100,000 residents. That is a significant increase just one year after the passage of Proposition 47.

(c)The study also estimates that Proposition 47 led to a 9-percent increase in the larceny theft rate. Along with larceny theft, monthly burglary rates saw a spike after the passage of Proposition 47, despite a downward trend in 2013.

(d)There are two types of larceny thefts that have accounted for about one-half of all larcenies, theft from motor vehicles and shoplifting. In December 2014, thefts from motor vehicles jumped from 16,000 – 17,000 to 19,000 – 20,000. The increase of thefts from motor vehicles accounts for an almost two-thirds increase of property crimes between 2014 and 2016. Shoplifting accounts for a 2.5 percent increase in property crimes.

(e)The PPIC study estimates Proposition 47 increased property crime rates by about 190 per 10,000 residents and estimates Proposition 47 led to a nine-percent rise in larceny theft.

SEC. 3.Section 7599.1 of the Government Code is amended to read:
7599.1.

Funding Appropriation.

(a)On or before July 31, 2016, and on or before July 31 of each fiscal year thereafter, the Director of Finance shall calculate the savings that accrued to the state from the implementation of the act adding this chapter (“this act”) during the fiscal year ending June 30, as compared to the fiscal year preceding the enactment of this act. In making the calculation required by this subdivision, the Director of Finance shall use actual data or best available estimates where actual data is not available. The calculation shall be final and shall not be adjusted for any subsequent changes in the underlying data. The Director of Finance shall certify the results of the calculation to the Controller no later than August 1 of each fiscal year.

(b)(1)Before August 15, 2016, and before August 15 of each fiscal year thereafter, the Controller shall transfer from the General Fund to the Safe Neighborhoods and Schools Fund the total amount calculated pursuant to subdivision (a).

(2)Commencing January 1, 2021, the amount transferred pursuant to this subdivision before August 15, 2021, and before August 15 of each fiscal year thereafter, shall not be reduced as a result of amendments to Sections 459.5 and 666 of the Penal Code by the Proposition 47 Reform Act. The calculation of savings that accrued to the state from the implementation of the act that added this chapter pursuant to subdivision (a) shall include the savings that would have accrued to the state pursuant to Sections 459.5 and 666 of the Penal Code, as those sections existed prior to January 1, 2021.

(c)Moneys in the Safe Neighborhoods and Schools Fund shall be continuously appropriated for the purposes of this act. Funds transferred to the Safe Neighborhoods and Schools Fund shall be used exclusively for the purposes of this act and shall not be subject to appropriation or transfer by the Legislature for any other purpose. The funds in the Safe Neighborhoods and Schools Fund may be used without regard to fiscal year.

SEC. 4.Section 7599.1 of the Government Code is amended to read:
7599.1.

Funding Appropriation.

(a)On or before July 31, 2016, and on or before July 31 of each fiscal year thereafter, the Director of Finance shall calculate the savings that accrued to the state from the implementation of the act adding this chapter (“this act”) during the fiscal year ending June 30, as compared to the fiscal year preceding the enactment of this act. In making the calculation required by this subdivision, the Director of Finance shall use actual data or best available estimates where actual data is not available. The calculation shall be final and shall not be adjusted for any subsequent changes in the underlying data. The Director of Finance shall certify the results of the calculation to the Controller no later than August 1 of each fiscal year.

(b)(1)Before August 15, 2016, and before August 15 of each fiscal year thereafter, the Controller shall transfer from the General Fund to the Safe Neighborhoods and Schools Fund the total amount calculated pursuant to subdivision (a).

(2)Commencing January 1, 2021, the amount transferred pursuant to this subdivision before August 15, 2021, and before August 15 of each fiscal year thereafter, shall not be reduced as a result of amendments to Section 459.5 of the Penal Code by the Proposition 47 Reform Act. The calculation of savings that accrued to the state from the implementation of the act that added this chapter pursuant to subdivision (a) shall include the savings that would have accrued to the state pursuant to Section 459.5 of the Penal Code, as that section existed prior to January 1, 2021.

(c)Moneys in the Safe Neighborhoods and Schools Fund shall be continuously appropriated for the purposes of this act. Funds transferred to the Safe Neighborhoods and Schools Fund shall be used exclusively for the purposes of this act and shall not be subject to appropriation or transfer by the Legislature for any other purpose. The funds in the Safe Neighborhoods and Schools Fund may be used without regard to fiscal year.

SEC. 5.Section 459.5 of the Penal Code is amended to read:
459.5.

(a)Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Except as provided in subdivisions (b) and (c), shoplifting shall be punished as a misdemeanor.

(b)(1)Commencing January 1, 2021, any person who commits shoplifting after having two or more prior convictions, committed on separate occasions, of any of the offenses specified in paragraph (2) is punishable by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.

(2)The prior offenses subject to this subdivision are all of the following:

(A)Shoplifting.

(B)Petty theft.

(C)Grand theft.

(D)Burglary.

(E)Carjacking.

(F)Robbery.

(G)A crime against an elder or dependent adult within the meaning of subdivision (d) or (e) of Section 368.

(H)A violation of Section 496.

(I)Forgery.

(J)The unlawful sale, transfer, or conveyance of an access card in violation of Section 484e.

(K)Forgery of an access card in violation of Section 484f.

(L)The unlawful use of an access card in violation of Section 484g.

(M)Identity theft in violation of Section 530.5.

(N)The theft or unauthorized use of a vehicle in violation of Section 10851 of the Vehicle Code.

(c)A person convicted of shoplifting with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.

(d)Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.

SEC. 6.Section 490.2 of the Penal Code is amended to read:
490.2.

(a)Except as provided in Section 666, and notwithstanding Section 487 or any other law defining grand theft, obtaining any property by theft if the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that the person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.

(b)This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.

(c)This section shall not apply to theft of a firearm.

SEC. 7.Section 666 of the Penal Code is amended to read:
666.

(a)Notwithstanding Section 490, any person described in subdivision (b) who, having been convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison.

(b)Subdivision (a) shall apply to any person who is required to register pursuant to the Sex Offender Registration Act, or who has a prior violent or serious felony conviction, as specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to subdivision (d) or (e) of Section 368.

(c)Commencing January 1, 2021, notwithstanding Section 490, a person who has been convicted three or more times of petty theft, grand theft, shoplifting, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, who is subsequently convicted of petty theft or shoplifting, is punishable by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170. A person shall not be punished pursuant to this subdivision and Section 459.5.

(d)This section shall not be construed to preclude prosecution or punishment pursuant to subdivisions (b) to (i), inclusive, of Section 667, or Section 1170.12.

SEC. 8.

(a)Sections 3, 4, 5, 6, and 7 of this act amend the Safe Neighborhoods and Schools Act, Proposition 47, an initiative statute, and shall become effective only when submitted to, and approved by, the voters at a statewide election.

(b)A special election is hereby called, to be held throughout the state on November 3, 2020, for approval by the voters of Sections 3, 4, 5, 6, and 7 of this act. The special election shall be consolidated with the statewide general election to be held on that date. The consolidated election shall be held and conducted in all respects as if there were only one election, and only one form of ballot shall be used.

(c)Notwithstanding the requirements of Sections 9040, 9043, 9044, 9061, 9082, and 9094 of the Elections Code, or any other law, the Secretary of State shall submit Sections 3, 4, 5, 6, and 7 of this act to the voters for their approval at the November 3, 2020, statewide general election.

SEC. 9.

If the Reducing Crime and Keeping California Safe Act of 2020 is approved by the voters and takes effect on or before January 1, 2021, Sections 3, 6, and 7 of this act shall not become operative. If the Reducing Crime and Keeping California Safe Act of 2020 is not approved by the voters and does not take effect before January 1, 2021, Section 4 of this act shall not become operative.

SEC. 10.

This act calls an election within the meaning of Article IV of the California Constitution and shall go into immediate effect.