BILL ANALYSIS AB 1844 Page 1 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." AB 1844 Page 2 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. AB 1844 Page 3 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 AB 1844 Page 4 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 AB 1844 Page 5 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. AB 1844 Page 6 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 AB 1844 Page 7 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 AB 1844 Page 8 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 AB 1844 Page 9 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." AB 1844 Page 10 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, AB 1844 Page 11 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, AB 1844 Page 12 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