California Senate Bill SB26 Amended / Bill

 BILL NUMBER: SB 26AMENDED BILL TEXT AMENDED IN SENATE MARCH 30, 2011 AMENDED IN SENATE FEBRUARY 1, 2011 INTRODUCED BY Senator Padilla  (   Coauthors:   Senators   Anderson,   Calderon,   Fuller,  Harman,   and Walters   )  DECEMBER 6, 2010 An act to add Section 4576 to the Penal Code, relating to prisons. LEGISLATIVE COUNSEL'S DIGEST SB 26, as amended, Padilla. Prisons: wireless communication devices. Existing law prohibits unauthorized communication with inmates in state prison. A person who violates that provision is guilty of a misdemeanor. Existing law further prohibits a person in a local correctional facility from possessing a wireless communication device, except as specified.  This bill would provide, with exceptions, that a person who possesses with the intent to deliver, or delivers, to an inmate or ward in the custody of the department any cellular telephone or other wireless communication device or any component thereof, including, but not limited to, a subscriber identity module or memory storage device, is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceeding 6 months, a fine not to exceed $5,000 for each device, or both that fine and imprisonment.  This bill would provide that if  any nonemployee   a person  who is visiting an inmate or ward under the jurisdiction of the Department of Corrections and Rehabilitation  ,  is found to be in possession of a  cellular telephone,  wireless communication device,  as defined,   or any component thereof,  upon being searched or subjected to a metal detector, that device is subject to confiscation  and would be returned the same day  , except as specified. The bill would require that a notice to that effect be posted in each area where visitors are searched prior to visiting with an inmate or ward.  The bill would require, subject to certain exceptions, that any nonemployee who possesses with the intent to deliver, or delivers, to an inmate or ward, a wireless communication device is guilty of a misdemeanor, punishable by a fine not to exceed $5,000. A subsequent violation of that provision, or the possession with intent to deliver, or delivery of, 2 or more wireless communication devices to an inmate or ward, would be a misdemeanor punishable by 6 months in jail, and a fine not to exceed $5,000 for each device.   The bill would also provide that an employee who possesses with intent to deliver, or delivers, one or more wireless communication devices is guilty of a misdemeanor punishable by a fine not to exceed $5,000 for each device. For purposes of these provisions, an employee is defined to include a volunteer, as specified.  Existing law provides for the accumulation, denial, or loss of time credits for inmates of the  Department of Corrections and Rehabilitation   department  based on each inmate's behavior while under the jurisdiction of the department. The bill would also provide that an inmate or ward who is found to be in possession of a wireless communication device would be subject to the denial of time credits, as specified.  In addition, the bill would provide that, if an inmate or ward uses a wireless communication device in the commission or attempted commission of a crime, upon conviction of that crime, he or she would be punished, in addition and consecutive to the prescribed punishment, with imprisonment in the state prison for 2, 3, or 5 years.  Because the bill would create  a  new  crimes   crime  , the bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 4576 is added to the   Penal Code   , to read:   4576. (a) Except as otherwise authorized by law, or when authorized by either the person in charge of the prison or other institution under the jurisdiction of the Department of Corrections and Rehabilitation or an officer of the institution empowered to give that authorization, a person who possesses with the intent to deliver, or delivers, to an inmate or ward in the custody of the department any cellular telephone or other wireless communication device or any component thereof, including, but not limited to, a subscriber identity module (SIM card) or memory storage device, is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, a fine not to exceed five thousand dollars ($5,000) for each device, or both that fine and imprisonment. (b) (1) If a person visiting an inmate or ward in the custody of the department, upon being searched or subjected to a metal detector, is found to be in possession of a cellular telephone or other wireless communication device or any component thereof, including, but not limited to, a SIM card or memory storage device, that device or component shall be subject to confiscation but shall be returned on the same day the person visits the inmate or ward, unless the cellular telephone or other wireless communication device or any component thereof is held as evidence in a case where the person is cited for a violation of subdivision (a). (2) If, upon investigation, it is determined that no prosecution will take place, the cellular telephone or other wireless communication device or any component thereof shall be returned to the owner at the owner's expense. (3) Notice of this provision shall be posted in all areas where visitors are searched prior to visitation with an inmate or ward in the custody of the department. (c) Any inmate or ward who is found to be in possession of a wireless communication device shall be subject to time credit denial or loss pursuant to paragraph (2) of subdivision (a) of Section 2932. Notwithstanding Section 2933, credits forfeited pursuant to this section shall not be eligible for restoration.   SECTION 1.   Section 4576 is added to the Penal Code, to read: 4576. (a) For purposes of this section, the following definitions shall apply: (1) "Wireless communication device" means any hand-held device having the ability to receive or transmit voice, text, or data messages without a cable connection, such as a cellular telephone, digital wireless telephone, radiotelephone/walkie-talkie, telephone pager, personal digital assistant with wireless communications capabilities (PDA), or research in motion wireless device (RIM), or any component thereof, including, but not limited to, a subscriber identity module (SIM) card or memory storage device. (2) "Employee" means any departmental staff, contractor, subcontractor, volunteer, agent of, or person working for, the Department of Corrections and Rehabilitation or working in any facility or location where inmates or wards are housed. (3) "Volunteer" means any person working, without financial compensation, for the Department of Corrections and Rehabilitation or in any facility or location where inmates or wards are housed. (4) "Nonemployee" means any person who does not meet the definition of "employee" in paragraph (2). (b) (1) Except as otherwise authorized by law, or when authorized by the person in charge of the prison or other facility under the jurisdiction of the Department of Corrections and Rehabilitation, if any nonemployee visiting an inmate or ward under the jurisdiction of the department is found to be in possession of a wireless communication device upon being searched or subjected to a metal detector, that device shall be subject to confiscation. (2) Except as otherwise authorized by law, or when authorized by the person in charge of the prison or other facility under the jurisdiction of the Department of Corrections and Rehabilitation, any nonemployee who possesses with the intent to deliver, or delivers, to an inmate or ward under the jurisdiction of the department a wireless communication device, is guilty of a misdemeanor, punishable by a fine not to exceed five thousand dollars ($5,000). (3) Any nonemployee who was previously convicted of a violation of paragraph (2), who possesses with the intent to deliver, or delivers, to an inmate or ward under the jurisdiction of the department, one or more wireless communication devices, or any nonemployee who possesses with the intent to deliver, or delivers, to an inmate or ward under the jurisdiction of the department, two or more wireless communication devices, is guilty of a misdemeanor, punishable by six months in jail, and a fine not to exceed five thousand dollars ($5,000) for each device. (c) Except as otherwise authorized by law, or when authorized by the person in charge of the prison or other facility under the jurisdiction of the Department of Corrections and Rehabilitation, any employee who possesses with the intent to deliver, or delivers, to an inmate or ward under the jurisdiction of the department, one or more wireless communication devices, is guilty of a misdemeanor, punishable by a fine not to exceed five thousand dollars ($5,000) for each device. (d) (1) Any inmate or ward who is found to be in possession of a wireless communication device shall be subject to time credit denial or loss pursuant to paragraph (2) of subdivision (a) of Section 2932. Notwithstanding Section 2933, credits forfeited pursuant to this section shall not be eligible for restoration. (2) Any inmate or ward under the jurisdiction of the Department of Corrections and Rehabilitation who, during the commission or attempted commission of a crime, uses a wireless communication device, shall, upon conviction of that crime, in addition and consecutive to the punishment prescribed for the crime of which he or she has been convicted, be punished by imprisonment in the state prison for two, three, or five years. (e) Notice regarding paragraph (1) of subdivision (b) shall be posted in each area in which visitors are searched prior to visiting with an inmate or ward under the jurisdiction of the department.  SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.