BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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0
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AB 307 (Cook)
As Amended June 24, 2009
Hearing date: July 14, 2009
Penal Code
AA:mc
SEX OFFENDER REGISTRATION:
ICE CREAM TRUCKS
HISTORY
Source: Author
Prior Legislation: AB 2263 (Spitzer) - Ch. 341, Stats. 2006
AB 1900 (Lieu) - Ch. 340, Stats. 2006
SB 1192 (Figueroa) - Ch. 224, Stats. 2001
AB 2259 (Aguiar) - Ch. 959, Stats. 1998
Support: San Bernardino County Sheriff's Department; San
Bernardino Board of Supervisors; California District
Attorneys Association; California State Sheriffs'
Association; Ventura County Sheriff; El Dorado County Sheriff;
Santa Barbara County Sheriff; Amador County Sheriff; Alameda
County Sheriff; Sacramento County Sheriff's Department;
Fresno County Sheriff; Santa Cruz County Sheriff; Shasta County
Sheriff; San Diego County Sheriff's Department; Tuolumne County
Undersheriff; Contra Costa County Sheriff; Mariposa County
Sheriff; Yolo County Sheriff; Butte County Sheriff;
Mothers Against Sexual Predators
Opposition:None known
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Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD A NEW PENAL CODE SECTION BE ENACTED TO EXPRESSLY PROHIBIT
PERSONS REQUIRED TO REGISTER AS A SEX OFFENDER FOR A CRIME THAT
INVOLVED A VICTIM UNDER THE AGE OF 16 FROM ENGAGING IN RETAIL ICE
CREAM TRUCK VENDING, AS SPECIFIED?
PURPOSE
The purpose of this bill is to enact a new Penal Code section to
expressly prohibit persons required to register as a sex
offender for a crime that involved a victim under the age of 16
from engaging in retail ice cream truck vending, as specified.
Current law generally requires persons convicted of enumerated
sex offenses to register within five working days of coming into
a city or county, with specified law enforcement officials in
the city, county, or city and county where he or she is
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domiciled, as specified.<1> (Penal Code 290.) Registration
generally must be updated annually, within five working days of
a registrant's birthday. (Penal Code 290.012(a).) In some
instances, registration must be updated once every 30 or 90
days, as specified. (Penal Code 290.011, 290.012.) Except
as noted below, the obligation to register as a sex offender is
for life.
Current law provides that no person who is required to register
as a sex offender because of a conviction for a crime where the
victim was a minor under 16 years of age shall be an employer,
employee, or independent contractor, or act as a volunteer with
any person, group, or organization in a capacity in which the
registrant would be working directly and in an unaccompanied
setting with minor children on more than an incidental and
occasional basis or have supervision or disciplinary power over
minor children. This subdivision does not apply to a business
owner or an independent contractor who does not work directly in
an unaccompanied setting with minors. A violation of this
section is a misdemeanor punishable by imprisonment in a county
jail for not exceeding six months, by a fine not exceeding
$1,000, or by both that imprisonment and fine, and a violation
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<1> Penal Code section 290(b) provides: "Every person
described in subdivision (c) for the rest of his or her life
while residing in, or, if he or she has no residence, while
located within California, or while attending school or working
in California, as described in section 290.002 and 290.01, shall
be required to register with the chief of police of the city in
which he or she is residing, or if he or she has no residence,
is located, or the sheriff of the county if he or she is
residing, or if he or she has no residence, is located, in an
unincorporated area or city that has no police department, and,
additionally, with the chief of police of a campus of the
University of California, the California State University, or
community college if he or she is residing, or if he or she has
no residence, is located upon the campus or in any of its
facilities, within five working days of coming into, or changing
his or her residence or location within, any city, county, or
city and county, or campus in which he or she temporarily
resides, or, if he or she has no residence, is located."
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of this section shall not constitute a continuing offense.
(Penal Code 290.95(c).)
This bill would create a new statute providing that "(a)ny
person required to register as a sex offender . . . because of a
conviction for a crime that involved a victim who was under 16
years of age, who engages in retail ice cream truck vending, is
guilty of a misdemeanor.<2>
"(b) As used in this section, "ice cream truck" shall have the
same meaning as the term is defined in subdivision (c) of
Section 22456 of the Vehicle Code.
"(c) For purposes of this section, "ice cream truck vending"
shall include the selling, displaying, or offering to sell any
item specified in subdivision (c) of Section 22456 of the
Vehicle Code from an ice cream truck."<3>
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
---------------------------
<2> Pursuant to Penal Code section 19, the penalty for this
newly-created statute would be imprisonment in the county jail
not exceeding six months, or by fine not exceeding $1,000, or by
both.
<3> Subdivision (c) of Vehicle Code section 22456 provides:
"(c) As used in this section, the term "ice cream truck" means a
motor vehicle engaged in the curbside vending or sale of frozen
or refrigerated desserts, confections, or novelties commonly
known as ice cream, or prepackaged candies, prepackaged snack
foods, or soft drinks, primarily intended for the sale to
children under 12 years of age."
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houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125 percent (an
average of 4 percent annually) over the past 20 years, growing
from 76,000 inmates to 171,000 inmates, far outpacing the
state's population growth rate for the age cohort with the
highest risk of incarceration.<4>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many prisoners
for the existing capacity. The Governor, the
principal defendant, declared a state of emergency in
2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
----------------------
<4> Between 1987 and 2007, California's population of ages 15
through 44-the age cohort with the highest risk for
incarceration-grew by an average of less than 1 percent
annually, which is a pace much slower than the growth in prison
admissions. (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<5>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
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<5> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts For The Eastern District of California And The
Northern District Of California United States District Court
Composed Of Three Judges Pursuant To Section 2284, Title 28
United States Code (Feb. 9, 2009).
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COMMENTS
1. Stated Need for This Bill
The author states:
Currently there is no law specifically against sex
offenders operating ice cream trucks. This has
occurred in Riverside County without any known
convictions. AB 307 would make it a misdemeanor for
any person who is required to register as a sex
offender because of a conviction for a crime in which
the victim was a person under 16 years of age to
engage in ice cream truck vending.
2. What This Bill Would Do
This bill would enact a new Penal Code section that specifically
prohibits persons who are required to register as sex offenders
for a crime that involved a victim under the age of 16 from
engaging in retail ice cream truck vending.
As explained above, under current law it is a misdemeanor for a
registered sex offender whose registerable offense was a crime
against a victim under 16 years old to do the following:
be an employer, employee, or independent contractor, or
act as a volunteer with any person, group, or organization;
in a capacity in which the registrant would be working
directly and in an unaccompanied setting with minor
children on more than an incidental and occasional basis or
have supervision or disciplinary power over minor children.
This bill would enact a new misdemeanor specifically prohibiting
sex offender registrants required to register because of a crime
against a victim under 16 years of age from engaging in "retail
ice cream truck vending, . . . ." "Ice cream truck" and "ice
cream truck vending" would be defined in this section as it
currently is defined in the Vehicle Code: "ice cream truck"
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means a motor vehicle engaged in the curbside vending or sale of
frozen or refrigerated desserts, confections, or novelties
commonly known as ice cream, or prepackaged candies, prepackaged
snack foods, or soft drinks, primarily intended for the sale to
children under 12 years of age."
The penalty for this new crime would be the same as the penalty
in the existing law restricting sex offenders from working with
minor children: a base misdemeanor.
3. Current Law and This Bill
Members and the author may wish to discuss whether the conduct
proscribed by this bill already is covered by existing law.
Specifically, this bill would make the following a misdemeanor:
registered sex offender;
victim was under 16;
engages in retail ice cream truck vending; that is,
engages in "the curbside vending or sale of frozen or
refrigerated desserts, confections, or novelties commonly
known as ice cream, . . . primarily intended for the sale
to children under 12 years of age ."
Penal Code section 290.95 now makes the following a misdemeanor:
registered sex offender;
victim under 16;
registrant an employer, employee, independent contractor
or volunteer;
working directly and in an unaccompanied setting with
minor children on more than an incidental and occasional
basis or have supervision or disciplinary power over minor
children.
The penalties proposed by this bill are identical to current
law.
There are no published cases interpreting Penal Code section
290.95.
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IS THE CONDUCT TARGETED BY THIS BILL ALREADY PROHIBITED UNDER
EXISTING LAW?
IS THIS BILL NECESSARY?
IS THE EXISTING PROHIBITION - WHICH CAN BE APPLIED BROADLY TO
ANY OCCUPATION BECAUSE IT IS BASED ON THE NATURE OF THE CONTACT
WITH MINORS - INADEQUATE IN PRACTICE OR OTHERWISE UNENFORCEABLE?
WOULD ENACTING A CODE SECTION SPECIFICALLY TARGETING RETAIL ICE
CRIME TRUCK VENDING IMPROVE PUBLIC SAFETY? SHOULD OTHER
OCCUPATIONS BE SIMILARLY CARVED OUT IN STAND-ALONE CODE
SECTIONS?
4. Background - Ice Cream Trucks
This bill appears to be based in part on an incident reported
two summers ago about an ice cream truck driver in Perris who
was a registered sex offender as reported by the
Press-Enterprise in July of 2007:
A group of Perris homeowners has launched a campaign
to run their local ice cream man out of the
neighborhood.
Anthony G. Toles, his neighbors discovered recently,
is a registered sex offender who has been living and
driving his ice cream truck in the Villages of Avalon,
a newer housing development near Lake Perris.
On the Fourth of July, about 10 neighbors distributed
500 custom-printed door hangers alerting residents to
"a potential threat to our children" driving a green
ice cream truck.
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"They have to live somewhere," said Amanda Burnham,
one neighbor who helped distribute the door hangers,
"but they don't have to drive an ice cream truck."
Toles, 48, was incensed when he heard of the
neighborhood campaign. But his neighbors may get
their way -- he's thinking of moving.
"I think that it's very messed up the way everybody is
judging me," he said, describing himself as a father
and grandfather. "It hurts me. My pride is hurt.
"My neighbors were always cool," he said. "Now they
probably hate me."
Toles pleaded guilty in 2003 to continuous sexual
abuse of a child and lewd and lascivious acts against
a child. The victims were described in court records
as his daughters, both of whom were under 14. He was
placed on three years' probation and sentenced to one
year in county jail with credit for seven months
served, court records show. His probation expired
last July.
Toles contends he didn't molest his daughters. He
said he pleaded guilty because he had poor legal
representation and didn't want to risk prison time.
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Toles, who lives with his wife in a two-story rented
home, said he's no predator, that he's merely trying
to earn a living selling candy, ice cream and water
guns. He said he drives an ice cream truck because no
one wants to hire someone with his criminal history.
But while Toles peddled frozen treats at schools,
parks and swimming pools for the past couple months,
his neighbors were reporting the movements of his
"dreaded green ice cream truck" on a community
Internet message board. The discussion began in May
with a neighbor who spotted him on the Megan's Law
Internet database of registered sex offenders. . . .
Sheriff's Department spokesman Jerry Franchville said
Perris police checked on Toles after a neighbor
reported him, but because he is no longer on parole or
probation there's nothing they can do. . . .
The Villages of Avalon neighbors wouldn't be the first
people to take exception to a registered sex offender
ice cream man.
New York State passed a law in 2005 to prohibit
registered sex offenders from driving ice cream
trucks. And last year an Illinois state legislator
introduced a bill that would require ice cream truck
drivers to register with the state for a special
identification card. Anyone convicted of homicide or
a sex offense would be denied.
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At Toles' home this week, the neighborhood alert
message lay on his coffee table alongside photos
showing his smiling children and grandchildren.
Toles said he found the announcement on his ice cream
truck last week. Across the top it read, "Villages of
Avalon On Alert." It did not include his name or
photo, but it encouraged neighbors to search for
registered sex offenders in the area on the Megan's
Law Web site. It also pointed out that a neighbor who
drives a green ice cream truck is included on the
site.
Toles, who says he is illiterate, didn't realize the
notice was about him until a relative read it to him.
Since the door hangers appeared, Toles said, a chill
has set in. Before, neighbors would greet him
cheerfully. Children would come knocking on his door
demanding candy. Now, no one speaks to him.
"All it takes is the word 'sex offender,'" he said,
"and boom!"
As protests against sex offenders go, the Villages of
Avalon campaign against Toles has been low key. . . .
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Still, the Villages of Avalon campaign may succeed in
driving Toles out.
Toles said he has already stopped driving his truck in
the neighborhood.
Living there, he said, isn't worth the aggravation
either.
"I'll just move on," Toles said.
But he said he has no plans to give up his ice cream
truck.<6>
According to a news report, at least one county in California,
San Bernardino, has barred sex offenders from operating ice
cream trucks.<7>
WOULD THIS BILL IMPROVE PUBLIC SAFETY?
5. Background: Recidivism Among Sex Offenders
As indicated in the author's statement and the press account
reprinted in the previous comment, this bill is based on public
---------------------------
<6> Neighborhood alarmed to learn ice-cream truck vendor is
registered sex offender, Press-Enterprise (July 14, 2007).
<7> San Bernardino County bans sex offenders from ice cream
trucks, Los Angeles Times (May 15, 2008).
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safety concerns relating to the risk posed by registered sex
offenders in the community, especially with respect to their
contact with children. In its January 2008 report, the
California Sex Offender Management Board stated the following
with respect to recidivism among sex offenders:
Solid information about the recidivism of sex
offenders is one of the key building blocks for good
policy and effective practice in sex offender
management. If it were not for the concern that an
identified sex offender may offend again in the future
and create another victim, the questions about how to
best manage sex offenders living in California
communities would not be of such intense interest.
Knowing how likely it is that an individual sex
offender or a certain type of sex offender might
re-offend can drive many decisions. Similarly,
knowing what interventions actually reduce the chances
that a sex offender will re-offend is also extremely
important.
There is a growing body of solid knowledge about sex
offender recidivism. More
knowledge is certainly needed, especially in
California. But what is known about the rate of
recidivism for sex offenders appears to be frequently
misunderstood when it comes to developing policies for
successful sex offender management. Many of the
preconceived notions surrounding sexual abuse appear
to be based on myths and misconceptions rather then
empirical evidence. Sex offenders are often reputed
to be incorrigible and laws are, at times, justified
with statements that the majority of sexual offenders
will go on to re-offend. In a recent study, 200
citizens who were polled believed that sex offender
recidivism rates for new sex offenses, are
approximately 75%. Statements that sex offenders
cannot be
"cured" - a concept generally accepted by experts in
this field - have often been
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misinterpreted to mean that they will inevitably
re-offend.
In fact, the majority of sex offenders do not
re-offend sexually over time. Additionally, research
studies over the past two decades have consistently
indicated that recidivism rates for sex offenders are,
in reality, lower than the
re-offense rates for most other types of offenders.
In a longitudinal study that followed 4,742 known sex
offenders over a period of 15 years, 24% were charged
with or convicted of, a new sexual offense. The U.S.
Department of Justice found that 5% of 9,691 sex
offenders released from prisons in 1994 were
rearrested for new sex crimes within three years.
Recent research data from California Department of
Corrections and Rehabilitation indicate that fewer
than 4% of the convicted sex offenders released to
parole in 2003 were returned for a new sex offense
over the course of a three year period of living in
the community under parole supervision.<8>
. . .
When comparing the re-offense rates of sex offenders
with the re-offense rates of non-sex offenders, the
public may assume an astronomically high recidivism
rate for sex offenders that, in reality, cannot be
found in empirical research and official statistics.
In a large study of more than 38,000 prisoners of all
types who were released from U.S. prisons in 1994,
Meithei, Olson, and Mitchell (2006) found that:
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<8> An Assessment of Current Management Practices of Adult Sex
Offenders in California, Initial Report (January 2008),
California Sex Offender Management Board, p. 68.
26 % of sex offenders were rearrested for another
sex crime,
33 % of violent offenders committed another violent
crime,
56 % of property offenders committed another
property offense,
61 % of public order offenders committed another
public order offense
These research findings caution the public and policy
makers against pursuing an
overwhelming focus of crime control measures on sex
offenders that may overlook the risk of serious
offenses committed by other offenders.
Nevertheless it remains true that sex crimes can have
such a devastating impact on their victims that even
"comparatively low" recidivism rates are still
unacceptably high and efforts to reduce them even
further are deserving of considerable investment of
efforts, resources and funding.<9>
In its January 2009 Progress Report, the Board stated in part:
The California Sex Offender Management Board has used
the following two
values as a guide when evaluating research, practice
and policy related to the
management of adult sex offenders.
1. In a time of limited resources the most
effective way to maximize public safety is to
allocate resources in a manner that ensures that the
highest risk populations receive supervision,
management and transition resources that are
commensurate with their risk.
2. Public safety is one of the fundamental
commitments that state and local governments make to
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<9> Id., pp. 71-72.
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their community. The best way to honor this
commitment is to adopt practices which have been
demonstrated to be effective.<10>
The Board's January 2009 report also indicates it will conduct
further research relating to whether the sex offender registry
can be improved by using tools such as risk assessments to
re-focus who is required to register:
The research by this committee showed that California
is unique in requiring lifetime registration for all
sex offenses requiring registration, even those which
are considered less serious or which were committed by
offenders who are at low risk to reoffend. More
accurate up-to-date research shows that such offenders
are at much lower risk to reoffend than was previously
thought. Because California has had lifetime
registration since 1947, there and many offenders
registering who have committed lower risk offenses
many years ago who have not reoffended. In order to
focus scarce law enforcement resources on monitoring
offenders who pose a higher risk of reoffending, the
committee is studying a recommendation
that the duration of registration be linked to both
risk assessment and the seriousness of the offense.
Courts could consider these factors, as well as others
indicating rehabilitation or lack thereof, in
determining whether to end the registration duty
earlier than life for lower risk offenders. Removing
low risk offenders from the registry after a
sufficient period of time would give law enforcement
the ability to do more than simply register offenders
at the station. It
could free resources to allow for more in-field
compliance work focused on higher risk offenders.<11>
6. Similar Legislation
---------------------------
<10> Available online at
http://www.casomb.org/docs/2009%20Progress%20Report%20V5.pdf.
<11> Id., pp. 11-12.
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Earlier this year this Committee heard SB 496 (Maldonado), which
would have prohibited registered sex offenders from becoming
licensed real estate agents or brokers. That bill failed
passage and was granted reconsideration.
7. Double Referral From Senate Committee on Local Government
This bill was heard by the Senate Committee on Local Government
on July 8, 2009, where it passed.
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