BILL ANALYSIS                                                                                                                                                                                                    



                                                                 AB 1844
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          Date of Hearing:   May 19, 2010

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                  AB 1844 (Fletcher) - As Amended:  April 28, 2010 

          Policy Committee:                              Public  
          SafetyVote:  5-0

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

           SUMMARY  

          This bill, the Chelsea King Child Predator Prevention Act of  
          2010, significantly increases sentences for sexual offenses  
          against minors -doubling current penalties and creating  
          life-without-possibility-of-parole (LWOP) sentences - and  
          requires lifetime parole for most of these offenses. 

           FISCAL EFFECT

           According to an analysis of this bill by the Legislative  
          Analyst's Office (LAO), requested by the chair of this  
          committee, this bill will create annual GF costs in the tens of  
          millions of dollars within the decade, and hundreds of millions  
          of dollars for longer prison terms in the out-years, lifetime  
          parole supervision and increased parole revocations. 

          These estimates may be conservative, as the LAO analysis used  
          the marginal overcrowding figures for inmates and parolees  
          ($23,000 and $2,500, respectively), rather than the budgeted per  
          capita cost ($45,000 and $6,000). 

          Also, the LAO estimates do not include:

          1)How many offenders would receive life terms as a result of  
            this bill. (The Department of Corrections and Rehabilitation  
            (CDCR) was unable to provide sufficient data to make such as  
            estimate.) LAO does state, however, "that the number of  
            offenders affected by the measure could be substantial." LAO  
            specifically notes "the inclusion of a traumatic condition on  
            a victim under age 14, would appear to be broad enough to  
            affect a significant number of offenders." 








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          2)The length-of-stay differential for offenders who would serve  
            a 15 or 25-to-life sentence under current law, but would serve  
            LWOP under this bill. There is insufficient data to determine  
            the length-of-stay for lifers with the possibility of parole,  
            though clearly it will be shorter than LWOP, so out-year costs  
            would be significant.

          3)State trial court costs as a result of more trials. Offenders  
            are not likely to plead to life. These costs could range into  
            the low tens of millions of dollars.

          4)Potential for construction costs to house the increased  
            population. These one-time out-year costs could be in the low  
            hundreds of millions.

           


          SUMMARY CONTINUED  
           
          This bill (1) increases determinate triad sentences for sex  
          offenses against minors, (2) creates LWOP and 25-years-to-life  
          terms for specified sex offenses against minors, (3) requires  
          lifetime parole for sex offenses against minors, and (4)  
          prohibits registered sex offenders to enter any park where  
          children gather. Specifically, this bill:

          1)Triad Sentence Increases

             a)   Assault w/intent to commit mayhem, rape, sodomy, oral  
               copulation, or rape with a foreign object, or lewd and  
               lascivious acts against a minor under the age of 14, is  
               punishable by 2, 4, 6 years.   

                  This bill  increases this penalty, if the assault is  
            committed upon a minor under 18, to 5, 7, or 9 years. 

             b)   Rape (PC 261, 262) is punishable by 3, 6, or 8 years. 

                  This bill  increases this penalty, when the victim is  
            under 14, to 6, 12, or 16 years, and to 6, 9, or 11 years when  
            the victim is 14 to 18. 

             c)   Rape in concert is punishable by 5, 7, or 9 years.








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                  This bill  increases this penalty, when the victim is  
            under 14, to 7, 13, or 17 years, and to 6, 9, or 11 years when  
            the victim is 14 to 18. 

             d)   Anyone who participates in an act of sodomy with a minor  
               under 18 may be punished by up to six months in county  
               jail, or 16 months, 2, or 3 years            in state  
               prison. 

                 Anyone over 21 who participates in an act of sodomy with  
            a minor under 16, may be      punished by 16 months, 2, or 3  
            years.                                                 

                 Anyone who is more than 10 years older than a minor under  
            14 and participates in an act           of sodomy may be  
            punished by 3, 6, or 8 years.                     

                 Anyone who commits a forceful act of sodomy may be  
            punished by 3, 6, or 8 years.

                  This bill  increases the penalty for forceful sodomy with  
            a minor under 14 to 6, 12, or 16 years;  and for forceful  
            sodomy on minor 14 to 18 to 6, 9, or 12 years.

             e)   Anyone who commits an act of sodomy by force in concert  
               may be punished by 5, 7, or 9 years. 

                  This bill  increases the penalty for forceful sodomy in  
            concert to 7,                                          13, or  
            17 years if the                                        victim  
            is under 14, and to 7, 10, or 12 years if the victim is 14 to  
            18.     

             f)   Lewd and Lascivious acts accomplished by force on a  
               minor under 14 is punishable by 3, 6, or 8 years. 

                  This bill  increases this penalty to 3, 12, or 16 years. 

             g)   Lewd and Lascivious acts accomplished by force by a  
               caretaker is punishable by  3, 6, or 8 years. 

                  This bill  increases this penalty to 6, 9, or 11 years.

             h)   Oral copulation with a person under 18 is punishable by  








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               up to six months in county jail or 16 months, 2, or 3 years  
               in state prison. 

                 Oral copulation by a person over 21 with a minor under 16  
            is punishable by 16 months, 2, or 3 years. 

                 Oral copulation with a minor under 14 by a person more  
            than 10 years older is punishable by 3, 6, or 8 years.

                 Oral copulation by force is punishable by 3, 6, or 8  
            years.  

                  This bill  increases the penalty for forceful oral  
            copulation on a minor under 14 to 6, 12, or 16 years, and to  
            6, 9, or 11 years if the minor is 14 to18.

             i)   Oral copulation by force, in concert is punishable by 5,  
               7, or 9 years. 

                  This bill  increases this penalty to 7, 13, or 17 years if  
            the minor is under 14, and to 7, 10, or 12 years if the minor  
            is 14 to 18.

             j)   Forcible rape is punishable by 3, 6, or 8 years.  

                  This bill  increases this penalty to 6, 12, 16 years when  
            the victim is under 14, and to 6, 9, or 11 years if the victim  
            is 14 to 18. 

          2)Life Term Sentence Increases


             a)   Rape, spousal rape, rape in concert, lewd and lascivious  
               acts on a minor, sexual penetration, sodomy, oral  
               copulation, continuous sexual abuse of a child, is  
               punishable by 25-years-to-life with one of the  
               circumstances from group 1, or 2 of the circumstances from  
               group 2, and by 15-years-to-life with one of the  
               circumstances from group 2. 


                 Group 1: 


               i)     The defendant has been previously convicted of a  








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                 specified sex offense.


               ii)                                                    The  
                 defendant kidnapped the victim of the present offense and  
                 the movement of the victim substantially increased the  
                 risk of harm to the victim. 


               iii)                                                   The  
                 defendant inflicted aggravated mayhem or torture on the  
                 victim or another person in the commission of the  
                 offense. 


               iv)                                                    The  
                 defendant committed the offense during a first-degree  
                 burglary.


               v)     The defendant inflicted great bodily injury on the  
                 victim or another person.


               vi)                                                    The  
                 defendant committed rape by a foreign object, sodomy in  
                 concert, oral copulation in concert, with specified  
                 factors. 


                 Group 2:


               i)     The defendant kidnapped the victim, as specified. 


               ii)                                                    The  
                 defendant committed the offense during a burglary.


               iii)                                                   The  
                 defendant used a dangerous weapon in the commission of  
                 the offense.










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               iv)                                                    The  
                 defendant has been convicted of committing the sexual  
                 offense against multiple victims.


               v)     The defendant bound the victim or another person in  
                 the commission of the offense. 


               vi)                                                    The  
                 defendant administered a controlled substance to the  
                 victim.  


               vii)                                                   The  
                 defendant committed rape by a foreign object, sodomy in  
                 concert, oral copulation in concert, with specified  
                 factors. 


               Current law also:

                 Provides that any person who commits any of the following  
            acts upon a child who is under 14 and seven or more years  
            younger than the offender is guilty of aggravated sexual  
            assault of a child, punishable by 15-years-to-life:  rape;  
            rape or sexual penetration, in concert; sodomy; oral  
            copulation, sexual penetration (PC Sec 269).

                 Provides that any person over 18 who engages in sexual  
            intercourse or sodomy with a child under 10 shall be punished  
            by 25-years-to-life, and that any person over 18 who engages  
            in oral copulation or sexual penetration with a child under 10  
            years of age shall be punished by15-years-to-life (PC Sec  
            288.7(a)(b)).

                This bill  specifies that any person convicted of rape,  
               spousal rape, rape in concert, lewd or lascivious acts,  
               sexual penetration, sodomy, oral copulation, or continuous  
               sexual abuse of a child, against a child under the age of  
               14 under one or more of the circumstances in group 1 (plus  
               great bodily injury, which is moved up from group 2 in this  
               bill) or under two or more of the circumstances in group 2,  
               is punishable by LWOP. A conviction of one of these  
               offenses, under one of the circumstances in group 2 is  








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               punishable by 25-to-life.  
           
                This bill  specifies any person convicted of rape, spousal  
               rape, rape in concert, lewd or lascivious acts, sexual  
               penetration, sodomy, oral copulation, or continuous sexual  
               abuse of a child upon a victim who is a child under 14  
               years of age and who, in the commission of the offense,  
               inflicted physical injury resulting in a traumatic  
               condition shall be punished by LWOP.


                This bill  states that any person convicted of rape by force  
               or fear, spousal rape, rape in concert, sexual penetration,  
               sodomy as specified, or oral copulation as specified, with  
               a victim 14 to 18, under one or more of the circumstances  
               in Group 1, or under two or more of the circumstances in  
               Group 2, shall be punished by LWOP.


                This bill  states that any person convicted of rape by force  
               or fear, spousal rape, rape in concert, sexual penetration,  
               sodomy as specified, or oral copulation as specified, with  
               a victim 14 to 18, under one of the circumstances Group 2,  
               shall be punished by 25-to-life.


          3)Lifetime Parole

             a)   Parole is generally for a period of up to 3 years,  
               except for specified sex offenses (rape, sodomy, oral  
               copulation) for which parole is up to 5 years.

                This bill  increases this five-year parole period to 10  
               years, unless a longer period is specified, and adds  
               offenders who received a life term for kidnapping with the  
               intent to commit a sexual offense.  
           
              b)   First and second degree murder results in lifetime  
               parole.  These offenders may be discharged from parole  
               after 7 or 5 years, respectively, unless the parole board  
               determines otherwise.

              c)   This bill  requires lifetime parole (and GPS supervision  
               as a result of current law that requires GPS for registered  
               sex offenders while on parole) with no possibility of  








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               discharge for:
                       
               i)     continuous sexual abuse of a child
               ii)                                                    a  
                 person serving a life term for penetration of a child  
                 under 10
               iii)   a person serving a life term as a habitual sex  
                 offender with a child victim
               iv)    a person serving a life term for aggravated sexual  
                 assault on a child
               v)     a person serving a life term for lewd and lascivious  
                 acts on a child
               vi)    lewd and lascivious acts on a minor under 14
               vii)   rape, spousal rape, sodomy, oral copulation if the  
                 victim is under 14

          4)Sex Offenders May Not Enter a Park

             This bill  makes it a misdemeanor for any person required to  
            register as a sex offender for a felony offense to enter any  
            park "where children regularly gather," without written  
            permission from a parole official, or if the person is not on  
            parole, permission from the chief park official.   

           COMMENTS  

           1)Rationale  . The author and proponents contend the proposed  
            penalty increases, including LWOP and lifetime parole, will  
            deter sex offenders and protect children. 

           2)Opponents  - generally defense bar representatives and the ACLU  
            - counter the proposal is reactionary, over broad and  
            extremely costly.

           3)Chelsea King  was a 17-year-old Poway high school student who  
            disappeared February 25, 2010 after a run in a Rancho Bernardo  
            Park. Law enforcement and volunteers searched for days, until  
            they found her body near Lake Hodges in San Diego.  

            On April 16, registered sex offender John Gardner pled guilty  
            to the murders of Chelsea King and Amber Dubois, a 14-year-old  
            Escondido girl abducted on her way to school in February 2009,  
            with the special circumstance of murder during the course of  
            rape in each case. He also pled guilty to assault with intent  
            to rape a third victim. The parties stipulated that the  








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            maximum punishment allowed by law, other than death, will be  
            imposed for these crimes.

            On May 31, 2000, Gardner was convicted of two counts of lewd  
            and lascivious acts against a child under 14 and one count of  
            false imprisonment. Additional charges of a forcible lewd act  
            against a child under 14 and a misdemeanor count of annoying  
            or molesting a child under 18 were dismissed as part of a plea  
            bargain. 
           
          4)The 13 recommendations from The California Sex Offender  
            Management Board report on Gardner, requested by the governor,  
            did not include longer sentences or parole periods. 
           
            According to the report, "This report examines California laws  
            and practices used to monitor convicted sex offenders to  
            suggest changes that can help such horrific crimes from  
            occurring?. 

            "The focus is not just what could have been done, if anything,  
            to prevent these crimes, but what can be done to prevent any  
            future crimes of sexual assault, with this case being used as  
            a lens through which we can examine that goal. For the victims  
            of crimes which have already occurred, California also needs  
            to invest in victim services, to ensure that victims' needs  
            are met and that they can fully participate in the criminal  
            justice system.

            Unfortunately, there will always be some risk of re-offense by  
            sex offenders, even if California implements the best possible  
            system for dealing with such offenders. However, it is  
            CASOMB's belief that implementation of the recommendations in  
            this report will contribute significantly to reduce  
            reoffending and prevent future victimization."

            With its release of this report May 1, 2010, "The Board is  
            calling on lawmakers to examine and update policies impacting  
            the management, treatment and housing of sex offenders.  
            Specifically, the Board recommends that California focus  
            resources on treatment for sex offenders, rethink the  
            effectiveness of residency restrictions, establish sex  
            offender exclusion zones rather than residence restrictions,  
            implement a better tool to assess sexual predators' risk to  
            reoffend, and combine GPS tracking with lifetime supervision  
            for exceptionally high risk offenders."








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           5)LWOP and proportionality  . The punishment for first-degree  
            murder in California is 25-years-to-life. With special  
            circumstances, the punishment is death or, in the alternative,  
            LWOP. This bill punishes rape, spousal rape, rape in concert,  
            lewd or lascivious acts, sexual penetration, sodomy, oral  
            copulation, or continuous sexual abuse of a child, under  
            specified circumstances with LWOP. For the most part, this  
            bill takes one-strike sex offenses, which are generally  
            punished for 25-years-to-life, and increases the penalty to  
            LWOP if the victim is under the age of 14. 

            Should these offenses, as heinous as they are, be punished  
            more severely than murder?

           6)Is existing one-strike sentencing for sex offenses  
            insufficient?  One-strike sex offenses trigger 25-years-to-life  
            in prison for a specified sex offense with one or more  
            specified circumstances. Rape, spousal rape, rape in concert,  
            lewd and lascivious acts on a minor, sexual penetration,  
            sodomy, oral copulation, continuous sexual abuse of a child,  
            is punishable by 25-years-to-life with one of the  
            circumstances from group 1 (see Summary point (2), above) or  
            two of the circumstances from group 2, and by 15-years-to-life  
            with one of the circumstances from group 2. These penalties  
            currently apply to all individuals, regardless of the victim's  
            age. This bill expands the punishment for one-strike sex  
            offenses to LWOP in most instances for minors under the age of  
            14 years. 

            In addition, any person who commits any of the following acts  
            upon a child under 14 and seven or more years younger than the  
            offender is guilty of aggravated sexual assault of a child,  
            punishable by 15-years-to-life for rape, rape or sexual  
            penetration in concert, sodomy, oral copulation, or sexual  
            penetration.

           7)Suggested Amendments

              a)   This bill punishes rape, spousal rape, rape in concert,  
               lewd or lascivious acts, sexual penetration, sodomy, oral  
               copulation, or continuous sexual abuse of a minor under 14  
               where the victim suffers a "traumatic injury" with LWOP.  
               Traumatic injury is defined as "as a wound or external or  
               internal injury, whether of a minor or serious nature,  








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               caused by a physical force." Therefore a bruise would be  
               sufficient to determine LWOP. The committee may wish to  
               delete this provision, which is a significant out-year cost  
               driver.    

             b)   This bill requires lifetime parole for a series of  
               offenses, including lewd and lascivious acts on a minor  
               under the age of 14 (PC 288(a)) - defined as any acts that  
               appeal to the sexual desires of the offender, which can  
               include touching over clothing. It does not require force  
               or fear. As this offense is the largest cost driver behind  
               the lifetime parole provision (almost 800 of these  
               offenders are paroled annually), the committee may wish to  
               delete this provision.

             c)   Given the significant cost of this measure and the  
               state's ongoing fiscal problems, the committee may wish to  
               acknowledge the need to make to make CDCR budget and inmate  
               population reductions sufficient to at least partially  
               cover these costs, by making this measure contingent upon a  
               subsequent statute that reduces CDCR spending by a  
               specified amount beginning in 2011. This subsequent statute  
               would presumably be developed over the course of 2010-11  
               budget deliberations.

             d)   The language prohibiting registered sex offenders in  
               parks appears vague and over broad. What constitutes a park  
               where children regularly gather? Should this prohibition  
               apply to consensual offenders between teens, misdemeanor  
               sexual batterers, and first-time misdemeanor indecent  
               exposure offenders? The committee may wish to clarify and  
               narrow the focus of this language to registered sex  
               offenders whose victims were minors. 


           
           
           8)Support.   The Peace Officers Research Association of CA  
            (PORAC), the CA State Sheriffs Association, and Crime Victims  
            United. According to PORAC, "Assembly Bill 1844 will institute  
            lifetime parole and GPS monitoring for serious sex offenders,  
            as well as other restrictions for anyone convicted of serious  
            and violent sexual offenses.  

            "In the wake of the recent tragedies in Southern California,  








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            we feel that additional steps must be taken to keep these  
            dangerous offenders off the streets."  

          9)Opposition  . Ca Attorneys for Criminal Justice (CACJ), the  
            ACLU, and the CA Public Defenders (CPDA) Association.  
            According to CPDA, "[t]he death of Chelsea King is a tragedy.  
                                                                                  In her honor, it is incumbent upon California legislators to  
            use scarce resources wisely. Locking up every child molester  
            for life without the possibility of parole will not create a  
            safer California. To the contrary, we believe that this  
            measure will tie up already scarce resources thereby  
            preventing law enforcement from focusing on those individuals  
            who pose a risk to society.  
           
            "Rape and sexual assault are a serious problem and deserve  
            critical and analytical attention. Evidence based research has  
            shown that all sex offenders are not the same, accordingly  
            blanket approaches such as the one envisioned in this measure  
            do not achieve the desired effect of making society safer. Sex  
            offenders need to be treated, assessed, and where appropriate  
            re-integrated into the community so that they will not  
            re-offend.  
           
           



          Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081