BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1081
                                                                  Page 1

          Date of Hearing:   April 21, 2009
          Counsel:                Nicole J. Hanson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                   AB 1081 (Torrico) - As Amended:  April 13, 2009
           
           
           SUMMARY  :   Allows electronic monitoring through Global  
          Positioning System (GPS) surveillance for those convicted of  
          violating specified protective orders, stalking, or felony  
          domestic violence.  Specifically,  this bill  :  

          1)Provides that upon the conviction of an intentional and  
            knowing violation of a protective order issued pursuant to  
            domestic violence, elder abuse or dependent abuse, the court  
            shall order the probation department to administer a mandatory  
            risk assessment evaluation as part of its presentence report.   
            If the court determines that the results of the risk  
            assessment and any other relevant circumstances of the  
            violation merit the order, the court shall order that the  
            person be placed under continuous electronic surveillance  
            using GPS technology as a term of probation, parole, or any  
            other conditional release from custody.

          2)Mandates that the GPS technology used to electronically  
            monitor the defendant, shall be the best available technology  
            for tracking domestic violence offenders.  The technology  
            shall be capable of all of the following:

             a)   Immediately notifying law enforcement or any other  
               responsible monitoring agency when the defendant is in a  
               location prohibited by an order of the court. 

             b)   Immediately notifying the victim when the defendant is  
               in a location prohibited by an order of the court.

             c)   Allowing monitors to speak to the offender through a  
               cell phone implanted in the bracelet device.

             d)   Activating a loud alarm to warn the victim of the  
               offender's presence in a prohibited location.









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          3)Places the costs associated with any monitoring required upon  
            the offender unless the court or the California Department of  
            Corrections and Rehabilitation (CDCR) finds that the offender  
            does not have the ability to pay for those costs. 

          4)Requires the court to order the defendant to pay a $200 fee  
            upon conviction of a violation protective order unless the  
            court finds that the defendant does not have the ability to  
            pay this fee.  The money collected by a county from the  
            imposition of this fee shall be deposited into that county's  
            domestic violence surveillance fund, a special account that  
            shall be established in each county.  The money in that fund  
            shall be used to pay for the GPS program and for any  
            reasonable administrative costs of the county for the  
            administration of this fund. 

          5)Makes contingent upon a Budget Act appropriations, CDCR shall  
            ensure than any parolee convicted of stalking who is deemed to  
            pose a high risk of committing a repeat stalking offense shall  
            be required to be placed under continuous electronic  
            surveillance through GPS technology.  The parolee shall be  
            required to pay for the costs associated with the required  
            monitoring unless CDCR finds that the parolee does not have  
            the ability to pay.

          6)States that whenever a court issues a restraining order  
            against the defendant as a result of a felony conviction for  
            domestic violence as defined under existing law, the court  
            shall order the probation department to administer a mandatory  
            risk assessment evaluation as part of its presentence report.   
            If the court determines that the results of the risk  
            assessment and any other relevant circumstances of the offense  
            merit the order, the court shall order that the person be  
            placed under continuous electronic surveillance using GPS  
            technology as a condition of probation.  The defendant shall  
            be required to pay for the costs associated with the required  
            monitoring unless the court finds that the offender does not  
            have the ability to pay for those costs. 

           EXISTING LAW  :

          1)Authorizes the parole authority to require, as a condition of  
            release on parole, electronic monitoring as long as the device  
            is not used to eavesdrop or record the parolee's  
            conversations.  (Penal Code Section 3004.)








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          2)Provides that notwithstanding any other provisions of law,  
            CDCR may utilize continuous electronic monitoring to  
            electronically monitor the whereabouts of persons on parole.   
            [Penal Code Section 3010(a).] 

          3)Mandates that continuous electronic monitoring shall have as  
            its primary objective the enhancement of public safety through  
            the reduction in the number of people being victimized by  
            crimes committed by persons on parole.  [Penal Code Section  
            3010(b).]

          4)States it is the intent of the Legislature to specifically  
            expand the authority of CDCR to utilize a system of continuous  
            electronic monitoring.  [Penal Code Section 3010(c).]

          5)Defines "continuous electronic monitoring" to include the use  
            of worldwide radio navigation system technology, known as the  
            Global Positioning System, or GPS.  The Legislature finds that  
            because of its capability for continuous surveillance,  
            continuous electronic monitoring has been used in other parts  
            of the country to monitor persons on parole who are identified  
            as requiring a high level of supervision.  [Penal Code Section  
            3010(d)(1).]

          6)Declares that the Legislature finds that continuous electronic  
            monitoring has proven to be an effective risk management tool  
            for supervising high-risk persons on parole who are likely to  
            reoffend where prevention and knowledge of their whereabouts  
            is a high priority for maintaining public safety.  [Penal Code  
            Section 3010(e).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Stalking and  
            domestic abuse are terrible crimes where the offender has a  
            specific target in mind.  The intent of this bill is to set up  
            a program using specific risk assessment procedures, and a  
            global positioning system that immediately alerts the victim  
            and police if an offender enters into an exclusionary zone.  
            Violators of protective orders would go through a risk  
            assessment through the courts to determine if they should be  
            fitted with this technology.  This legislation is modeled in  








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            part by legislation that has been passed and proven effective  
            in Massachusetts and Illinois.   The use of this technology,  
            in combination with specific risk assessment tools and  
            training, could help empower victims, help prevent repeated  
            assault and harassment and even save lives."

           2)Background  :  According to information provided by the author,  
            "According to Bureau of Justice Statistics, in the United  
            States, in 2005, an average of three women a day were killed  
            by their intimate partners, husbands, ex-husbands, boyfriends,  
            or ex-boyfriends. According to the California Department of  
            Justice Criminal Justice Statistics Center; California law  
            enforcement received 174,649 domestic violence calls in 2007.  
            69,422 of these calls involved weapons, including firearms,  
            knives, hands, fists or feet.  In addition, 119 murders were  
            the result of intimate partner violence in California. The  
            National Coalition Against Domestic Violence reports that in  
            70 to 80 percent of intimate partner homicides, the victim was  
            physically abused by the offender before the murder.  

          "Even when a domestic violence case is prosecuted, victims are  
            often not protected and many still live in fear of their  
            abuser.  One remedy for these victims is the right to obtain a  
            restraining order to help protect themselves from their  
            abuser.  Although restraining orders are an important tool for  
            victims, they are very often violated, many times repeatedly.   
            Restraining order violations can sometimes be hard to prove if  
            there are no other witnesses and unfortunately repeated  
            violations often result in injury and sometimes murder."

           3)Background Information on GPS  :  Electronic monitoring is a  
            form of "house arrest" with the use of electronic ankle  
            bracelets.  Offenders wear devices that permit periodic checks  
            of their whereabouts by telephone.  GPS uses satellite  
            tracking operating in a manner similar to cellular phones.   
            Offenders wear ankle bracelets and carry with them packs  
            containing mobile receivers.  When offenders are sleeping or  
            sitting, packs can be placed near them.  A monitoring station  
            receives data from all offenders using the system and tracks  
            them. Tracking may be active or passive.  Active GPS transmits  
            its location at near real-time intervals and can include  
            immediate alert notifications.  Passive GPS transmits its  
            location at set intervals and alert notifications are usually  
            received the next day.  If the offender tampers with the  
            equipment, moves more than about 150 feet from the receiver,  








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            deviates from a schedule, or ventures into forbidden  
            territory, overseers are automatically paged.  Not only does  
            GPS follow offenders, GPS can also be programmed with  
            "exclusion zones" where sex offenders are not allowed - for  
            example, the home of a victim or the victim's place of  
            employment.

           4)GPS Technology is Not Foolproof  :  The use of GPS for parolee  
            tracking provides a level of surveillance not available by any  
            other means.  GPS' ability to locate an offender 24 hours per  
            day makes GPS an invaluable tool for parole agents.  The GPS  
            is a system of 24 satellites 11,000 miles above Earth.  Using  
            GPS tracking, a parolee can be precisely located 24 hours per  
            day, seven days per week.  For the system to work, the parolee  
            must carry a GPS receiver, complete with a microprocessor and  
            antennae, to record locations.  The parolee carries the device  
            in a waist pack.  The parolee must also wear an ankle bracelet  
            equipped with a radio transmitter that works in tandem with  
            the GPS receiver.  Thus, if the parolee does not wear both the  
            ankle bracelet and the receiver, the receiver will set off an  
            alarm at the monitoring station.  Both pieces of equipment  
            also have tamper-detection features to keep offenders from  
            trying to remove or dismantle them.  New technology is being  
            used in California and other states that have only one piece,  
            an ankle monitor, which must be recharged every 12 to 18  
            hours. 

          In various degrees, GPS is used to track parolees in Arizona,  
            Michigan, Florida, Texas, Connecticut Washington and  
            California.  Reported GPS problems include loss of signal  
            creating false alarms, high costs, and required technical  
            training.  Lost signals are typical in cars, large buildings,  
            and underground basements.  

          There have also been reports of loss of GPS signals as a result  
            of battery and equipment failure.  Furthermore, in testimony  
            offered before the Assembly Committee on Public Safety in  
            November 2005, a Washington State Corrections representative  
            stated that problems resulted not only from lost signal in  
            urban canyons, but also breaks in the signal because the  
            offender put more than 150 feet between the device and the  
            unit monitor.  This occurred even though the offender was  
            still at home.  Also, frequent problems occurred with battery  
            life.  Offenders are required to recharge a battery every 8 to  
            18 hours depending on the unit, proving very inconvenient and  








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            also resulting in a number of false alarms.  In a discussion  
            of the uses of GPS in California, CDCR and the Department of  
            Mental Health (DMH) representatives speaking before this  
            Committee indicated that GPS is an effective monitoring tool  
            for a small manageable class of offenders.  

          "In Arizona, a 2007 legislative study found more than 35,000  
            false alerts by 140 subjects wearing the GPS-monitoring  
            devices.

          "In California, the percentage of transient parolees, those  
            who've been declared homeless, has increased by 900% since a  
            law was passed that included GPS as part of the solution.   
            Now, officials say, they're guessing about where the offenders  
            are because more have become transient and the GPS monitoring  
            can be unreliable, especially when the offenders lack real  
            housing where they can charge the devices.

          "And in Connecticut, officials are pushing for a state-run  
            monitoring facility to keep track of offenders being monitored  
            by GPS after numerous false alarms involving several subjects,  
            including one whose case prompted action.

          "Though public safety officials typically agree that GPS is a  
            valuable tool, they say it's not a replacement for personal  
            contact with the subject, his co-workers, family and friends  
            that keeps the offender honest . . .

          " . . . GPS is a legitimate tool for law enforcement, but its  
            limitations must be understood, and it must be used correctly.  
             'It's got to be centered in the context of all the other  
            information available to the officer, including the reports  
            from treatment, family and so 
          forth . . .'

          "Policymakers should understand that having a GPS device on  
            subjects doesn't mean they're monitored all the time.  'A lot  
            of people think if you're on GPS somebody is sitting at a  
            computer and they know your whereabouts all the time . . .  
            They're not aware of the influence of weather and other  
            interferences with the system and the cell tower issues . . .  
            parolees can venture out of the satellites' range by entering  
            buildings or a dense urban location.  Places like schools,  
            hospitals, government buildings . . . 









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          "In Washington state, there has been resistance to GPS  
            monitoring. In 2006, the Washington Association of Sheriffs  
            and Police Chiefs opposed proposed legislation - which passed  
            - to expand the use of GPS because of experiences with faulty  
            readings when offenders move inside steel buildings, tunnels  
            or outside when it's snowing, according to Don Pierce, the  
            association's executive director.  'We were concerned, and  
            still are, that GPS monitoring is viewed as a panacea and will  
            prevent future crime. It isn't, and it won't.' "  [McKay, Sex  
            Offenders' GPS Devices Not a Silver Bullet, States Say (Feb.  
            1, 2009) Emergency Management News  
             http://www.govtech.com/em/articles/596099?id=596099&full
          =1&story_pg=1  (as of Apr. 15, 2009].]

              a)   Sex Offender Kills Teen While Under GPS Surveillance  :   
               "Darrin Sanford, 30, was one of several homeless people  
               living near the field in an abandoned home slated for  
               demolition, police said.

             "He was convicted in 1998 of communicating with a minor for  
               immoral purposes and luring minors with sexual motivation;  
               he was sentenced to probation, said a Clark County  
               sheriff's report.  When he was released from jail in  
               January, following a November probation violation, Sanford  
               was fitted with a global positioning tracking unit on his  
               ankle, according to the Washington Department of  
               Corrections. 

             "Sanford was wearing the device seven weeks later when he  
               tried to rape [13 year old, Alicia Nipp] . . . before  
               beating and stabbing her in a field a couple of blocks from  
               the street where she lived, according to police.

             "Authorities said they used GPS to corroborate Sanford's  
               confession.  . . .

             "The slaying rocked the enclave of Hazel Dell in Vancouver, a  
               15-minute drive from Portland, Oregon, and serves as fodder  
               for those who claim GPS is used too broadly and bluntly as  
               a tool for keeping tabs on offenders.

             " 'They can't monitor it live, and even if you could monitor  
               it live, him being in the field wouldn't have told you [if]  
               he was murdering the girl,' said Evan Mayo-Wilson, an  
               Oxford University lecturer who has studied the use of GPS.








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             "There are two types of GPS monitoring:  active, in which the  
               offender's whereabouts are surveyed in real-time, and  
               passive, in which probation or parole officers check an  
               offender's movements after the fact.

             "Sanford was passively monitored, said Anmarie Aylward, the  
               Washington Department of Correction's program  
               administrator. 

             " 'Both types of GPS are important tools for law  
               enforcement', Mayo-Wilson said, 'but the technology must be  
               coupled with other efforts to reduce recidivism, including  
               treatment programs, personal visits and interviews with  
               neighbors, family members and employers
             . . . '

             " . . . 'It's a technology that cannot stand alone,  
               especially if you're thinking about using it with offenders  
               who imperil the public.' 

             " . . . Experts say GPS can create a false sense of security  
               because its capabilities are overestimated.  Jill Levenson,  
               an associate professor of human sciences at Lynn University  
               in Boca Raton, Florida, said many people believe it is  
               'some magic bullet or panacea that prevents crimes.'

             " . . . Because the media focus on the most sensational  
               crimes, politicians often focus their energies on combating  
               the violent incidents rather than the more common  
               occurrences . . ."  [McLaughlin and Oppmann, Sex offender  
               kills teen while under GPS monitoring, police say (Mar. 12,  
               2009) CNN  (as of Apr. 15, 2009).]

             This bill does not indicate whether active or passive GPS  
               surveillance will be used.  The problem with GPS  
               surveillance is that it may not be real time; it may not  
               even be working; it may give false alarms; and - most  
               importantly - it does not prevent future crime.  GPS tracks  
               a person's whereabouts, but it does not give a view of what  
               he or she is doing.  Given all of these factors should  
               California increase the use of GPS surveillance?  Who is  
               going to monitor these persons under surveillance?  Does  
               California have the resources to monitor these persons?








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           5)GPS Monitoring is Costly and This Bill Does Not Specify who  
            will Cover the Costs  :  The CDCR estimates that the cost to  
            track parolees utilizing GPS is $8 to $15 per day, per inmate.  
             The annual contract cost per parolee would be $2,920 to  
            $5,470 per year and does not include supervision costs or the  
            cost of the additional personnel needed to monitor the  
            parolees on GPS.  Also, the use of GPS tracking requires  
            expensive technical training.  The current annual average  
            parolee cost is $2,882.  In addition to tracking parolees,  
            this bill places GPS surveillance on probationers.  

          This bill indicates that the defendant shall not be ordered to  
            pay for GPS surveillance if he or she is not able to.  This  
            bill also institutes a $200 fee upon conviction of violation  
            of a protective order unless the court finds that the  
            defendant does not have the ability to pay this fee.  The $200  
            that is collected is to be deposited into that county's  
            domestic violence surveillance fund which shall be used to pay  
            for the GPS program.  It will be rare that a defendant will be  
            able to pay for the GPS surveillance and it will be rare if he  
            or she will be pay the $200 used to fund the GPS program  
            established under this bill.  As such, there will never be  
            enough money in the domestic violence surveillance fund to  
            subsidize the requirement of placing GPS monitors on all  
            persons required under this bill. 

          This bill also does not specify which agency is responsible for  
            tracking the offenders.  When offenders are on parole, CDCR  
            goes to great lengths to make sure the offender is housed.   
            But once the offender is no longer on parole, CDCR is no  
            longer responsible for the offender.  Hence, the cost of the  
            monitor and the tracking would probably fall on local law  
            enforcement.  Certainly, the offender will not be able to pay  
            the cost of GPS monitoring.  If he or she is not able to  
            afford housing, he or she will obviously not be able to afford  
            a GPS monitor.

           6)GPS Surveillance May Already be Applied as a Term of Probation  
            or Parole  :  Penal Code Section 3004 allows the parole  
            authority to use of electronic monitoring for the purpose of  
            helping to verify a parolee's compliance. GPS surveillance may  
            also already be applied as a term of probation.  In People v.  
            Randolph (2006) 2006 Cal. App. Unpub. LEXIS 9727 (Randolph),  
            the defendant contended that his GPS term was unreasonable.   








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            The court in Randolph stated that "[t]he primary goal of  
            probation is to ensure the safety of the public . . . through  
            the enforcement of court-ordered conditions of probation.   
            Conditions of probation are routinely imposed when the  
            sentencing court determines, in an exercise of its discretion,  
            that a defendant who is statutorily eligible for probation is  
            also suitable to receive it.  In the granting of probation,  
            the Legislature has declared the primary considerations to be:  
             the nature of the offense; the interests of justice,  
            including punishment, reintegration of the offender into the  
            community, and enforcement of conditions of probation; the  
            loss to the victim; and the needs of the defendant.  (Id. at  
            *4-*5.)

          In granting probation, courts have broad discretion to impose  
                                                conditions to foster rehabilitation and to protect public  
            safety pursuant to Penal Code Section 1203.1.  The court may  
            impose and require such reasonable conditions as it may  
            determine are fitting and proper to the end that justice may  
            be done, that amends may be made to society for the breach of  
            the law, for any injury done to any person resulting from that  
            breach, and generally and specifically for the reformation and  
            rehabilitation of the probationer. 

          However, the court in Randolph cautioned that the trial court's  
            discretion, although broad, nevertheless is not without  
            limits: a condition of probation must serve a purpose  
            specified in the statute.  (Id. at *5.)  In addition, Penal  
            Code section 1203.1 requires that probation conditions which  
            regulate conduct "not itself criminal" be "reasonably related  
            to the crime of which the defendant was convicted or to future  
            criminality."  [People v. Carbajal (1995) 10 Cal.4th 1114,  
            1120-1121; see also  1203.1; People v. Welch (1993) 5 Cal.4th  
            228, 233; People v. Warner (1978) 20 Cal.3d 678, 682-683.]

          As with any exercise of discretion, the sentencing court  
            violates the above standard when its determination is  
            arbitrary or capricious or "exceeds the bounds of reason, all  
            of the circumstances being considered."  [People v. Carbajal,  
            supra, 10 Cal.4th 1114 at p. 1121.]  While a probationer  
            retains rights of privacy and liberty under the federal  
            Constitution [People v. Keller (1978) 76 Cal.App.3d 827, 832,  
            overruled on other grounds in People v. Welch, supra, 5  
            Cal.4th at p. 237.], probationary conditions may nevertheless  
            place limits on constitutional rights if reasonably necessary  








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            to meet the goals of probation.  [People v. Bauer (1989) 211  
            Cal.App.3d 937, 940-941; see also Gilliam v. Municipal Court  
            (1979) 97 Cal.App.3d 704, 708 ("[a] condition of probation  
            which requires a defendant to give up a constitutional right  
            is not per se unconstitutional").]

          The California Supreme Court in People v. Lent (1975) 15 Cal.3d  
            481, established the rule on probationary conditions:  "A  
            condition of probation will not be held invalid unless it '(1)  
            has no relationship to the crime of which the offender was  
            convicted, (2) relates to conduct which is not in itself  
            criminal, and (3) requires or forbids conduct which is not  
            reasonably related to future criminality . . . .'  [Id. at p.  
            486, fn. omitted, abrogated by Proposition 8 on another ground  
            as recognized in People v. Wheeler (1992) 4 Cal.4th 284,  
            290-292.]  It is well established that "probation conditions  
            which regulate conduct 'not itself criminal' must be  
            'reasonably related to the crime of which the defendant was  
            convicted or to future criminality.' "  [People v. Welch,  
            supra, 5 Cal.4th 228, 233-234, quoting Lent, at p. 486.]  All  
            three factors must be present for a condition of probation to  
            be invalid.  [People v. Wardlow (1991) 227 Cal.App.3d 360,  
            365-366.]

          In People v. Jungers (2005) 127 Cal.App.4th 698 (Jungers), the  
            defendant pleaded no contest to committing corporal injury  
            upon a cohabitant or child's parent [ 273.5, subd. (a)].  He  
            was granted probation, one of the conditions of which was that  
            he only have "mutual" contact with the victim.  After  
            violating probation by, among other things, contacting or  
            attempting to contact the victim, the court ordered that  
            defendant have no contact with her, stating that the victim  
            could contact defendant, but defendant could not contact her.   
            The defendant later married the victim, Martinez, and sought  
            modification of a probation condition that had restricted  
            association between them.  The court "clarified its ruling" by  
            stating that the order did not preclude any contact between  
            the defendant and his wife but precluded him from initiating  
            the contact.  The defendant complained on appeal that the  
            modified condition violated, inter alia, his rights to  
            association and marital privacy.  (Jungers, supra, 127  
            Cal.App.4th at pp. 700-706.)

          The Jungers court stated, "Probation is a privilege and not a  
            right.  Because probation conditions foster rehabilitation and  








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            protect the public safety, they may infringe the  
            constitutional rights of the defendant, who is 'not entitled  
            to the same degree of constitutional protection as other  
            citizens.  Certain intrusions by government which would be  
            invalid under traditional constitutional concepts may be  
            reasonable at least to the extent that such intrusions are  
            required by legitimate governmental demands.  Consequently,  
            restrictions on a probationer's right of association are  
            permissible if reasonably required to accomplish the needs of  
            the state.  However, probation conditions that restrict  
            constitutional rights must be carefully tailored and  
            'reasonably related to the compelling state interest' in  
            reforming and rehabilitating the defendant."  (Jungers, supra,  
            127 Cal.App.4th at pp. 703-704.)

          The Court of Appeal continued, "Here, Jungers's reasonable  
            expectations of free association and marital privacy have  
            necessarily been reduced by his conviction of a crime  
            specifically, a felony involving domestic violence against  
            Martinez.  Nevertheless, the probation condition restricting  
            Jungers's ability to contact Martinez is valid only if it is  
            reasonably necessary to accomplish the needs of the state and  
            is narrowly tailored to accomplish this goal.  We conclude it  
            is."  (Jungers, supra, 127 Cal.App.4th at p. 704.)

          Consistent with the Legislature's response to the problem of  
            domestic violence, section 273.5 punishes a defendant who  
            inflicts corporal injury on a spouse.  The statute reflects  
            legislative recognition of the high incidence of violence in  
            intimate relationships and the state's interest in encouraging  
            non-violent, intimate relationships.  Further, when a  
            defendant convicted of domestic violence is granted probation,  
            the terms of probation must include '[a] criminal court  
            protective order protecting the victim from further acts of  
            violence, threats, stalking, 
          . . . and harassment, and, if appropriate, containing residence  
            exclusion or stay-away conditions."  (Jungers, supra, 127  
            Cal.App.4th at p. 704.)

          The Jungers court continued, "Here, the court was required to  
            issue a protective order for Martinez when it placed Jungers  
            on probation, despite Martinez's claim she did not fear for  
            her safety.  Although the court's order curtailed Jungers's  
            rights of association and marital privacy, it legitimately and  
            reasonably operated to accomplish the needs of the state in  








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            addressing domestic violence by rehabilitating Jungers and  
            protecting Martinez.  The state's compelling interest in  
            protecting victims of domestic violence justifies the  
            restriction on Jungers's right to initiate contact with  
            Martinez."  (Jungers, supra, 127 Cal.App.4th at p. 705, fn.  
            omitted.)

          Likewise, the court in Randolph held, the GPS term supports the  
            state's compelling interest in preventing future incidents of  
            domestic abuse.  (Randolph, supra, 2006 Cal. App. Unpub. LEXIS  
            9727 at p. *13.)  The court did not prohibit any and all  
            contact or association between defendant and the victim.   
            Instead, the court imposed, as a probation condition, a term  
            that would protect the safety of the defendant's wife.   
            (Ibid.)  The court noted that despite the fact that there is  
            no record of a restraining order against defendant by the  
            victim or a stay-away order prohibiting defendant from contact  
            with the victim, the crime of domestic violence justifies  
            increased surveillance and protection as noted by the  
            Legislature. 

          In furtherance, the Randolph court acknowledge that a GPS term  
            is no different than the probation conditions requiring a  
            defendant to submit to a polygraph examination, requiring a  
            defendant to wear a monitoring ankle bracelet, or requiring  
            defendant to submit to a warrantless search.  [See, e.g.,  
            People v. Ramos (2004) 34 Cal.4th 494, 505-506 (warrantless  
            search); Brown v. Superior Court (2002) 101 Cal.App.4th 313,  
            319-321 (polygraph examination); People v. Zichwic (2001) 94  
            Cal.App.4th 944, 952 (tracking device); People v. Miller  
            (1989) 208 Cal.App.3d 1311, 1314 (polygraph examination).] 

          This bill imposes mandatory placement of GPS surveillance.  This  
            is unnecessary.  As it stands, trial courts and the parole  
            authority may impose such a device as they deem necessary on a  
            case-by-case basis.  No reason has been given to take away  
            such discretion.  Moreover, this bill incorrectly gives trial  
            courts the authority to place GPS surveillance upon a parolee.  
             Trial court judges do not have this ability.  A parolee is  
            under the guise of the parole authority, and it is the parole  
            authority who determines the necessary and proper terms of  
            parole. 

           7)GPS May have an Unintended Disparate Impact Among Minority  
            Communities  :  Legislation meant to provide greater protection  








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            to victims of domestic violence could actually exacerbate the  
            conditions that facilitate its occurrence within minority  
            communities.  While some women terrified by their abusers will  
            seek help from law enforcement as a result of this bill,  
            patterns of domestic violence in the African American  
            community suggest that using GPS to monitor offenders will  
            silence many female victims in that community, where domestic  
            violence is both more prevalent and is more likely to lead to  
            homicide than in Caucasian communities.  The average annual  
            rate of non-fatal, intimate partner violence from 1993 to 2004  
            was higher for African American females than for Caucasian  
            females.  [Catalano, U.S. Dep't of Justice, Bureau of Justice  
            Statistics, Intimate Partner Violence in the United States  
            (2006),   
            [as of Apr. 15, 2009].]  African American women are also more  
            likely to suffer the most severe forms of violence in  
            comparison to most other groups of women.  [Chicago Foundation  
            for Women, What Will It Take? Types of Violence  
             (as of  
            Apr. 15, 2009).]  By failing to build appropriate safeguards  
            into this policy, law enforcement officials with ulterior  
            motives will face an added incentive to determine  
            disproportionately that offenders from targeted racial groups  
            warrant GPS monitoring.  This might include the desire to  
            constantly monitor African American offenders, whom they  
            perceive as more likely to engage in other illicit activities.

          As an initial matter, studies of domestic violence in African  
            American communities have revealed that there are unique  
            factors associated with African American male offenders:  "The  
            situational context in which intimate partner violence occurs  
            among African Americans is, in many ways, a product of the  
            various structural forces (e.g., institutional racism, cycles  
            of chronic underemployment and unemployment, poverty, etc.)  
            that constrict the lives of African Americans."  [Hampton, et  
            al., Domestic Violence in the African American Community:  An  
            Analysis of Social and Structural Factors, Violence Against  
            Women (2003) 533, 542.]  "Frustrated masculinity syndrome" has  
            been used "to describe how some African American men responded  
            to racial prejudice and various institutional barriers that  
            blocked them from having equal access to the designated  
            legitimate means to achieve manhood through conventional,  
            societal avenues."  (Id. at 539.)

          The pressures of an oppressive and socially stratified society  








                                                                  AB 1081
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            have elicited a negative effect on African American women as  
            well.  Many of them feel they cannot subject their partner to  
            an oppressive and racist institution by seeking help through  
            the legal system in a society where many African American men  
            already feel frustrated and emasculated.  Thus, physically  
            imposing a GPS unit on their bodies so that the government can  
            constantly monitor their behavior will only serve to heighten  
            their sense of powerlessness.  Such an effect will not go  
            unnoticed by their partners debating whether to seek help from  
            law enforcement officials, and it may tilt the scale away from  
            pursuing help from official authorities.  Moreover, any  
            reputational harm or difficulty this system creates for  
            offenders in their hunt for gainful employment will only  
            further the conditions that bred abuse in the first place.

          Even where equality in process should be at its apex, there is  
            discrimination.  Justice Scalia, in discussing the death  
            penalty, wrote that "the unconscious operation of irrational  
            sympathies and antipathies, including racial, upon jury  
            decisions, and [hence] prosecutorial decisions, is real,  
            acknowledged in the decisions of this court, and  
            ineradicable."  [Doyle and Hynes, Catholics and the Death  
            Penalty Panel Discussion (2006) 44 J. Cath. Legal Stud. 297  
            (citing Banner, The Death Penalty (2002) 289, 290 (quoting  
            Memorandum from Antonin Scalia, Associate Justice, United  
            States Supreme Court, to the Conference of Supreme Court  
            Justices (Jan. 6, 1987).]  

          Further, dangerousness assessments, which have been proposed as  
            a way to determine whether batterers will qualify for GPS  
            monitoring, risk disparate enforcement and have "repeatedly  
            been shown in the psychological and psychiatric literature" to  
            be "notoriously unreliable."  [See Rosenfeld, Correlative  
            Rights and the Boundaries of Freedom Protecting the Civil  
            Rights of Endangered Women (2008) 43 Harv. C.R.-C.L. L. Rev.  
            261 (discussing dangerousness assessments).] 

          California must ensure that GPS is not unjustly enforced against  
            people of color and that it is actually benefiting the women  
            it is trying to protect.  California must avoid cultural and  
            racial bias and to ensure that the use of the GPS system in  
            protecting against domestic violence does not become the  
            pretext for constant monitoring of minority batterers.

           8)Arguments in Support  :  None submitted 








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           9)Argument in Opposition  : According to the  California  
            Partnership to End Domestic Violence (CPEDV)  , "AB 1081 is part  
            of a nationwide effort to implement GPS monitoring for  
            domestic violence offenders.  While CPEDV has long advocated  
            justice for victims and accountability for offenders, we have  
            major concerns with this legislation, which are listed below.

             a)   "GPS monitoring should not be viewed as a panacea or  
               'quick fix' for threats if future violence.  GPS monitoring  
               is only effective as a part of a larger coordinated system.  
                If not enough trained officers respond quickly when an  
               offender approaches a victim, and if courts lack resources  
               to hold offenders accountable, the monitoring devices will  
               not be effective. 

             b)   "GPS can complicate an already delicate dynamic in  
               communities where relations between law enforcement and  
               advocates are not strong.  In order for a GPS system to be  
               effective, it would be necessary for a community-based  
               advocate to explain to victims how the offender tracking  
               system works, and its benefits and risks.

             c)   "There could be unintended costs to survivors resulting  
               from the bill's stipulation that offenders pay for their  
               tracking devices when possible.  If offenders are required  
               to pay for the technology it could complicate child  
               support, rent or mortgage payments, etc., which can  
               adversely affect the offenders' victims and children.

             d)   "Active monitoring of perpetrators is only effective if  
               an administrator continually monitors the location of  
               offenders, 24/7.  Additionally, perpetual monitoring would  
               require the victim, who has not committed a rime, to be  
               tracked 24 hours a day.  This raises serious safety and  
               privacy risks.  It also creates a risk that the offender or  
               offender's attorney may try to obtain the victim's location  
               records in an effort to intimidate or harass the victim.   
               For safety, a monitoring agency's polices should restrict  
               access to a victim's location to the fewest staff possible,  
               and routinely purge victim location records.  Such best  
               practices are not currently address [sic] in the bill.   
               Additionally, any victim who is considering carrying a GPS  
               device must be fully informed of all risks and benefits,  
               provide consent before being tracked, and must be allowed  








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               to withdraw that consent at any time. 

             e)   "Mandating a statewide 'one size fits all' approach  
               instead of rolling out grant-funded pilot projects in a few  
               counties is problematic.  GPS tracking may not be the most  
               effective way to combat violence in all communities.

             f)   "The bill suggests that a 'risk assessment' will be made  
               to determine the likelihood of a perpetrator to reoffend.   
               However [,] the current bill language does not address the  
               substance of these assessments, or important questions  
               regarding their development and administration.  Who does  
               the assessment? If the probation/parole assesses at a bail  
               hearing and the hearing takes place in the middle of the  
               night, what happens when certain counties don't have a  
               24-hour staff on hand to handle it?  Will advocates and  
               mental health professionals be involved in the development  
               of this assessment?  Is there certainty that victims who  
               violate protective orders or are on parole/probation will  
               not be fitted with a GPS device?

             g)   "It is critical to not divert existing resources, energy  
               and staff time away from other vital community efforts like  
               domestic violence prevention.  GPS monitoring could work  
               will when the entire community is ready for it, but could  
               complicate and/or derail other domestic violence efforts if  
               introduced prematurely.

             h)   "While there are some victims who would be more likely  
               to seek help from law enforcement as a result of this bill,  
               patterns of domestic violence in some communities suggest  
               that using GPS to monitor offenders will silence many  
               others.  This effect is most likely to impact victims of  
               color, who might hesitate to invite such an invasive law  
               enforcement intervention into their families and  
               communities. 

             i)   "GPS tracking should not be used as an excuse to release  
               inmates in overcrowded prisons when budgets are strained.   
               However[,] on the surface if appears to be a good way to  
               reduce jail and prison costs, and could easily be leveraged  
               to this end."

           10)Prior Legislation  :









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             a)   SB 502 (Hollingsworth), of the 2007-08 Legislative  
               Session, would have required any person released  
               unconditionally from the sexually violent predator civil  
               commitment program to be monitored by GPS for life.  SB 502  
               failed passage in the Senate Committee on Public Safety.

             b)   AB 1913 (Cardenas), of the 2005-06 Legislative Session,  
               would have placed GPS surveillance monitors on transient  
               sex offenders.  AB 1913 failed passage in this Committee. 

             a)   AB 231 (Runner), of the 2005-06 Legislative Session,  
               would have required sex offenders to be tracked on GPS for  
               the remainder of his or her life both on and off parole.   
               AB 231 failed passage in this Committee.

             b)   AB 1152 (La Suer), of the 2005-06 Legislative Session,  
               would have required every parolee defined as a "high-risk"  
               sex offender to be monitored by a GPS.  AB 1152 was held on  
               the Assembly Appropriations Committee's Suspense Calendar. 

             c)   AB 1442 (La Suer), of the 2003-04 Legislative Session,  
               would have established a pilot project in San Diego which  
               would require any inmate released on parole for conviction  
               of specified "violent" sex offenses to be monitored by a  
               GPS for the term of the inmate's parole.  AB 1442 failed  
               passage in the Senate Public Safety Committee.

             d)   AB 1450 (Cardenas), of the 2001-02 Legislative Session,  
               would have required the CDCR to use a GPS to track 1% of  
               the state's parole population (1,230 parolees) over the  
               course of 12 months.  AB 1450 was held in the Senate  
               Appropriations Committee's Suspense File and was later  
               amended into an unrelated subject matter.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None

           Opposition 
           
          California Partnership to End Domestic Violence
          Community Overcoming Relationship Abuse
           








                                                                 AB 1081
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          Analysis Prepared by  :    Nicole J. Hanson / PUB. S. / (916)  
          319-3744