BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                                 THIRD READING


          Bill No:  AB 1844
          Author:   Fletcher (R), et al
          Amended:  8/17/10 in Senate
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE :  7-0, 6/29/10
          AYES:  Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,  
            Wright

           SENATE APPROPRIATIONS COMMITTEE  :  11-0, 8/12/10
          AYES:  Kehoe, Ashburn, Alquist, Corbett, Emmerson, Leno,  
            Price, Walters, Wolk, Wyland, Yee
           
          ASSEMBLY FLOOR  :  71-0, 6/3/10 - See last page for vote


           SUBJECT  :    Sex offenses:  penalties

           SOURCE  :     Author


           DIGEST  :    This bill change numerous statutes governing sex  
          offenses and sex offenders, as well as other crimes.  This  
          bill (1) increases the punishment for various sex offenses,  
          as specified; (2) prohibits a person on parole for  
          specified sex offenses to enter any park where children  
          regularly gather without express permission from his/her  
          parole agent; (3) requires lifetime parole for certain  
          habitual sex offenders, and increase the length of parole,  
          as specified, for all sex offenders; (4) requires the  
          State-Authorized Risk Assessment Tool for Sex Offenders  
          (SARATSO) Review Committee, on or before January 1, 2012,  
                                                           CONTINUED





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          to select an actuarial instrument that measures dynamic  
          risk factors, and another that measures risk of future  
          sexual violence to be administered as specified; (5)  
          requires that with respect to persons convicted of  
          specified sex offenses, the Department of Justice make  
          available to the public via the department's website, the  
          static SARATSO score and information on risk level based on  
          the SARATSO future violence tool; (6) imposes specified  
          conditions of probation, including participation in an  
          approved sex offender management program (SOMP), on persons  
          released on formal supervised probation for an offense  
          requiring registration as a sex offender, as specified.   
          This bill similarly requires participation in an approved  
          SOMP, as a condition of parole, for specified persons  
          released on parole; and (7) changes the punishment for  
          certain existing "wobblers" that are not sex offenses.

           ANALYSIS  :    This bill enacts the Chelsea King Child  
          Predator Prevention Act of 2010, making numerous changes to  
          statutes governing sex offenses and sex offenders.  The  
          full range of fiscal implications for the State of  
          California cannot be determined, because many costs will be  
          driven by the future actions of numerous individuals who  
          will interact with these provisions.  Local law  
          enforcement, district attorneys and public defenders, the  
          Department of Corrections and Rehabilitation (CDCR),  
          probation officers, parole agents, mental health  
          professionals, the SARATSO Review Committee, actuarial risk  
          assessment instrument vendors, the Department of Justice  
          (DOJ), and individual sex offenders, will all make  
          decisions that will affect the costs of implementing this  
          bill. 

          Under existing law, an assault with the intent to commit  
          mayhem, rape, sodomy, oral copulation, or with the intent  
          to commit, by force, rape, spousal rape, or sexual  
          penetration in concert with another, is punishable by  
          imprisonment in the state prison for two, four, or six  
          years, except as specified.

          This bill provides that an assault of a person under 18  
          years of age with the intent to commit rape, sodomy, oral  
          copulation, or with the intent to commit, by force, rape,  
          spousal rape, or sexual penetration in concert with  







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          another, would be punishable by imprisonment in state  
          prison for five, seven, or nine years.

          This bill provides that in addition to the penalty  
          specified above, any person who commits human trafficking  
          involving a commercial sex act where the victim of the  
          human trafficking was under 18 years of age at the time of  
          the commission of the offense shall be punished by a fine  
          of not more than $100,000.

          As used in this bill, "commercial sex act" means any sexual  
          conduct on account of which anything of value is given or  
          received by any person.

          This bill provides that every fine imposed and collected  
          pursuant to this section shall be deposited in the  
          Victim-Witness Assistance Fund to be available for  
          appropriation to fund services for victims of human  
          trafficking.  At least 50 percent of the fines collected  
          and deposited, pursuant to this section, shall be granted  
          to community-based organizations that serve victims of  
          human trafficking.

          Under existing law, rape, sodomy accomplished against the  
          victim's will, oral copulation accomplished against the  
          victim's will, and sexual penetration accomplished against  
          the victim's will is punishable by imprisonment in state  
          prison for three, six, or eight years.  Rape, sodomy, and  
          oral copulation committed in concert with another is  
          punishable by imprisonment in the state prison for five,  
          seven, or nine years.

          This bill provides that the punishment for these specified  
          crimes upon a child who is under 14 years of age is  
          punishable by imprisonment in state prison for nine, 11, or  
          13 years, and if committed upon a minor who is 14 years of  
          age or older is punishable by imprisonment in state prison  
          for seven, nine, or 11 years.  This bill provides that if  
          these crimes are committed in concert with another person  
          upon a child who is under 14 years of age they are  
          punishable in state prison for 10, 12, or 14 years and if  
          committed in concert upon a minor who is 14 years of age or  
          older by imprisonment for seven, nine, or 11 years.  By  
          increasing the punishment for crimes, this bill would  







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          impose a state-mandated local program.

          Under existing law, a person who commits an act of rape,  
          rape or sexual penetration in concert, sodomy, oral  
          copulation, or sexual penetration, when the act is  
          committed upon a child who is under 14 years of age and  
          seven or more years younger than the person, is guilty of  
          aggravated sexual assault of a child.  Aggravated sexual  
          assault of a child under these circumstances is punishable  
          by imprisonment in state prison for 15 years to life.

          This bill provides that it does not preclude prosecution  
          under this existing law.

          Under existing law, a person who commits any lewd or  
          lascivious act upon a child who is under 14 years of age by  
          use of force or fear is guilty of a felony punishable by  
          imprisonment in state prison for three, six, or eight  
          years.

          This bill increases the punishment for this crime to  
          imprisonment in the state prison for five, eight, or 10  
          years.
           
          Under existing law, a person who commits any lewd or  
          lascivious act upon a dependent person, as defined, by use  
          of force or fear is guilty of a felony punishable by  
          imprisonment in state prison for three, six, or eight  
          years.

          This bill increases the punishment for this crime to  
          imprisonment in the state prison for five, eight, or 10  
          years.  

          Existing law, as amended by Proposition 83 of the November  
          7, 2006, statewide general election, requires a person  
          convicted of certain felonies under specified circumstances  
          to be committed to prison for a term of years to life.

          This bill provides that these felonies committed under the  
          above-specified circumstances upon a victim who is a child  
          under 14 years of age shall be punished by imprisonment in  
          state prison for life without the possibility of parole if  
          the offender is 18 years of age or older or 25 years to  







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          life if the offender is under 18 years of age.  This bill  
          adds as a circumstance the infliction of bodily harm, as  
          defined, on a victim who is a child under 14 years of age  
          to the list of specified circumstances that would result in  
          this imprisonment.

          This bill provides that when rape, spousal rape, rape in  
          concert, or sexual penetration, sodomy, or oral copulation  
          committed against the victim's will are committed under two  
          of a specified list of circumstances, upon a minor 14 years  
          of age or older, the punishment shall be imprisonment in  
          state prison for life without the possibility of parole if  
          the offender is 18 years of age or older or 25 years to  
          life if the offender is under 18 years of age, or for 25  
          years to life if committed under one of the specified  
          circumstances.
          Under existing law, a person convicted of certain felony  
          sex offenses shall be committed to prison for a term of 15  
          years to life if during the commission of the felony the  
          defendant inflicted great bodily injury on the victim.

          This bill provides that any person who is convicted of  
          certain sex offenses under specified circumstances, upon a  
          victim who is a child under 14 years of age, shall be  
          punished by imprisonment in the state prison for 25 years  
          to life.  This bill provides a life term of imprisonment  
          for any person convicted of a lewd or lascivious act where  
          he/she inflicted bodily harm.

          Existing law makes it unlawful for a person who is required  
          to register as a sex offender to reside within 2,000 feet  
          of a public or private school, or park where children  
          regularly gather.  Existing law also provides that any  
          person required to register as a sex offender who comes  
          into any school building or upon any school ground without  
          lawful business and written permission is guilty of a  
          misdemeanor.

          This bill makes it a misdemeanor for a person who is on  
          parole for specified sex offenses to enter any park where  
          children regularly gather without express permission from  
          the person's parole agent.

          Under existing law a prisoner is generally released on  







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          parole for a period not exceeding three years, except that  
          inmates sentenced for certain enumerated violent felonies  
          are released on parole for a period not exceeding five  
          years.  

          Under existing law, the period of parole for an inmate who  
          has received a life sentence for certain specified sex  
          offenses is for a period not exceeding 10 years.

          This bill requires lifetime parole for habitual sex  
          offenders , persons convicted of kidnapping a child under  
          14 years of age with the intent to commit a specified  
          sexual offense, and persons convicted of other specified  
          sex crimes, including, among others, aggravated sexual  
          assault of a child.  This bill, unless a longer period of  
          parole applies, imposes a 10-year parole period on inmates  
          sentenced for kidnapping with the intent to commit  
          specified sex offenses, specified lewd or lascivious acts ,  
          and other specified sexual offenses.  This bill imposes a  
          20-year parole period on inmates convicted and required to  
          register as sex offenders for rape, sodomy, lewd or  
          lascivious acts, continuous sexual abuse of a child, and  
          other specified sex crimes, in which one or more of the  
          victims of the offense was a child under 14 years of age,  
          as specified.

          Existing law provides that every person who, having been  
          convicted of petty theft, grand theft, auto theft,  
          burglary, carjacking, robbery, or receiving stolen  
          property, is subsequently convicted of petty theft, is  
          punishable by imprisonment in the county jail not exceeding  
          one year, or in the state prison.

          This bill requires that most persons be convicted three or  
          more times of a qualifying offense to be subject to  
          imprisonment in the state prison for petty theft.  Persons  
          required to register as sex offenders, or with a prior  
          serious or violent felony conviction, or who have been  
          previously sentenced under the Three Strikes Law would  
          remain subject to imprisonment in the state prison with one  
          prior qualifying offense.

          Existing law provides that the sex offender risk assessment  
          tool for use with selected populations shall be known as  







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          the SARATSO.  Existing law provides that the SARATSO for  
          adult males required to register as sex offenders shall be  
          the STATIC-99 risk assessment scale.  Existing law requires  
          the SARATSO Review Committee to determine whether the  
          STATIC-99 should be supplemented with an actuarial  
          instrument that measures dynamic risk factors or whether it  
          should be replaced with a different risk assessment tool.

          This bill provides that the STATIC-99 shall be the SARATSO  
          static tool for adult males.  This bill requires the  
          SARATSO Review Committee, on or before January 1, 2012, to  
          select an actuarial instrument that measures dynamic risk  
          factors and an actuarial instrument that measures risk of  
          future sexual violence to be administered as specified.   
          This bill provides that persons who administer the dynamic  
          SARATSO and the future violence SARATSO shall be trained,  
          as specified.  This bill makes other conforming changes.

          Existing law provides that with respect to a person who has  
          been convicted of specified sex crimes, DOJ shall make  
          available to the public via the department's Internet Web  
          site certain identifying and criminal history information.

          This bill requires DOJ to also make available the person's  
          static SARATSO score and information on an elevated risk  
          level based on the SARATSO future violence tool.

          Existing law requires that persons convicted of certain sex  
          crimes be evaluated by the county probation department and  
          requires that if a defendant is granted probation, the  
          court shall order the defendant to be placed in an  
          appropriate treatment program designed to deal with child  
          molestation or sexual offenders, if an appropriate program  
          is available in the county.

          This bill removes the requirement that the defendant be  
          placed in an appropriate treatment program but instead  
          imposes specified conditions, including participation in an  
          approved sex offender management program, on persons  
          released on formal supervised probation for an offense  
          requiring registration as a sex offender, as specified.   
          This bill similarly requires participation in an approved  
          sex offender management program, as a condition of parole,  
          for persons released on parole for an offense that requires  







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          registration as a sex offender, as specified.

          Existing law requires that, as a condition of parole,  
          prisoners who meet specified criteria be treated by the  
          Department of Mental Health.  Existing law requires that  
          prior to release on parole, these prisoners be evaluated,  
          as specified.  Existing law provides that only if both  
          independent professionals who evaluate the prisoner, as  
          required, concur with the chief psychiatrist's  
          certification shall treatment by the department be  
          required.

          This bill instead makes these provisions applicable to the  
          prisoner if at least one of the independent professionals  
          concurs with the chief psychiatrist's certification.

          Under the Personal Income Tax Law, individual taxpayers are  
          allowed to contribute amounts in excess of their tax  
          liability for the support of specified funds or accounts,  
          including, among others, the California Sexual Violence  
          Victim Services Fund.  Existing law provides for the  
          appearance of this fund on the tax return until January 1,  
          2011, unless a later enacted statute deletes or extends  
          that date.

          This bill deletes the January 1, 2011 repeal date.

          Existing law requires that any person who applies for  
          certification to provide sex offender management services  
          or provide fingerprints and other information.

          This bill requires the California Sex Offender Management  
          Board (Board) to submit to DOJ fingerprint images and  
          related information required by DOJ of alls ex offender  
          management applicants for the purposes of obtaining  
          information as to the existence and content of a record of  
          sate or federal convictions and sate or federal arrests or  
          federal arrests for which DOJ establishes that the person  
          is free on bail or on his/her own recognizance pending  
          trial or appeal.

          When received, DOJ shall forward to the Federal Bureau of  
          Investigation (FBI) requests for federal summary criminal  
          history information received pursuant to this section.  DOJ  







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          shall review the information returned from the FBI and  
          compile and disseminate a response to the Board.

          DOJ shall provide a state and federal response to the Board  
          pursuant to paragraph (1) of subdivision (l) of Section  
          11105 of the Penal Code (PEN).

          The Board shall request from DOJ subsequent arrest  
          notification service, as provided pursuant to PEN Section  
          11105.2, for persons described in subdivision (a).

          The Board shall require any person who applies for  
          certification under this section to submit information  
          relevant to the applicant's fitness to provide sex offender  
          management services.

          The Board shall assess a fee to the applicant not to exceed  
          $180 per application.  The Board shall pay a fee to DOJ  
          sufficient to cover the cost of processing the criminal  
          background request specified in this section.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

                         Fiscal Impact (in thousands)

           Major Provisions       2010-11     2011-12    2012-13         Fund  

          Increases "triad" sentencing   Substantial new costs,  
          beginning in 2013-14           General

          Increases "one strike"         Potentially substantial  
          costs beginning in 2026        General
          sentencing

          Increases parole length/scope            
          ------------Substantial ongoing costs-------------     
          General

          New risk assessment policies   Substantial  
          development/equipment/staff costs;      General
                                                                  







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          potentially low tens of millions

          Requires SOMP programs         Substantial  
          development/implementation costs;       General    
                                 potentially substantial future  
          incarceration cost 
                                 avoidance

          DOJ website information        $0       $35            
          Minor/absorbable     General

          Mandate: County probation      Likely millions annually in  
          reimbursable activities        General

          Wobbler reductions                           General

          Human Trafficking fines        Unknown, potentially  
          significant revenue  Special*

          * Victim-Witness Assistance Fund

           SUPPORT  :   (Verified  8/17/10)

          California State PTA
          California State Sheriffs' Association
          Child Abuse Prevention Center
          Cities of Encinitas, La Mesa, Poway, San Marcos, and Vista
          County of San Diego
          Crime Victims United of California
          District Attorney City and County of San Francisco
          Grossmont Union High School District
          La Mesa Chamber of Commerce
          Lakeside Union School District
          Los Angeles County Board of Supervisors
          Los Angeles County District Attorney
          Mayor of the City of San Diego
          Office of the Attorney General 
          Peace Officers Research Association of California
          Ramona Chamber of Commerce
          San Bernardino County District Attorney
          San Bernardino County Sheriff-Coroner
          San Diego County District Attorney
          Senator Dianne Feinstein







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          State Public Affairs Committee of the Junior Leagues of  
          California
          Superintendent of Public Instruction


           ARGUMENTS IN SUPPORT  :    The author states:

            "While there are seemingly tough laws on the books for  
            sex offenders, current California law does not  
            acknowledge or adjust for the true nature of the sexual  
            violent predator that attacks children.  Chelsea's law  
            isolates this uniquely dangerous predator and takes  
            disciplined steps to keep them away from our communities  
            in a variety of ways.  

            "Beginning with Sentencing,

            "Our office believes that those have committed the most  
            serious and heinous sex crimes against children are not  
            able to be rehabilitated.  Which is why under our  
            proposal, those who commit these crimes against children  
            will be locked up for life without the possibility of  
            parole.  

            "This will ensure that victims do not have to live in  
            terror that their attacker will be freed one day, and  
            potential victims will not be needlessly harmed by those  
            who we know to be extremely dangerous.  

            "Also under our proposal those offenders who have  
            committed a forcible sex crime against a child, signaling  
            an appetite to prey on children, will be locked up for  
            much longer than in current law.  In most cases twice as  
            long.  

            "We believe this is an important change because there  
            currently is no distinction between forcible and  
            non-forcible sex crimes on a child.  A forcible sex  
            crime, such as forcible child molestation, involves  
            'violence, duress, menace, or fear of immediate and  
            unlawful bodily injury'.  And while all sex crimes are  
                       awful, these crimes are a red flag that the perpetrator  
            is capable of much, much worse.  The legislature should  
            acknowledges that.  







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            "This is why under Chelsea's Law these offenders will  
            serve a lifetime on parole if released, including  
            effective GPS monitoring of their whereabouts.  

            "Chelsea's Law will also create 'safe zones'.   
            Specifically, it will now be a misdemeanor for a felony  
            sex offender to loiter in parks where children congregate  
            - where they could otherwise wait and target new victims.  
             

            "Testimony from corrections officials has stated that the  
            combination of these safe zones with GPS monitoring will  
            allow law enforcement officials to be immediately  
            notified if the most dangerous sex offenders have entered  
            a park covered under our law.  And steps can be taken to  
            remove them.  

            "We believe this combination of increased sentencing,  
            enhanced oversight, and the creation of safe zones will  
            provide increased safety for children and comfort for  
            parents. 

            "AB 1844 ensures that those who commit a crime of this  
            nature are effectively kept from engaging in even more  
            atrocious crimes upon release, and that those who commit  
            the worst violent sex crimes against children are put  
            away for life."

           ARGUMENTS IN OPPOSITION  :    Opponents, such as the American  
          Civil Liberties Union, argue that "current law imposes  
          stiff criminal penalties for the crimes referenced in this  
          legislation.  The additional sentence increases will  
          exacerbate the already severe overcrowding of our state  
          prison system and impose an enormous additional fiscal cost  
          to the state."
           
           As members consider the sentence increases proposed by this  
          bill, it may be useful to consider these sentencing issues  
          in the context of California's sentencing laws generally.   
          The expansion and development of California's Determinate  
          Sentencing Law since its enactment in 1976 has been  
          continuous.  Some legal scholars and others have severely  
          criticized California's determinate sentencing laws.







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            "Criminal sentencing in California is without a coherent  
            penal theory, which is in part a result of multiple  
            layers of criminal sentencing that have come about over  
            almost thirty years of legislative changes to sentencing  
            laws.
            ?

            "The numerous 'drive by' sentencing laws have eroded  
            whatever coherence was achieved in 1976.  That is, when  
            the media have reported particularly heinous crimes or  
            trends in criminal behavior, the Legislature has often  
            enacted enhancement provisions.  Multiple enhancement  
            statutes erode the principle articulated in Penal Code  
            Section 1170.

            "From 1984 to 1991, over 1,000 crime bills passed.   
            Virtually none of them reduced sentences and many of them  
            imposed sentence enhancements.  Often, the crime bill was  
            a reaction to the 'crime of the month,' a crime that was  
            hyped in the media.  For example, in 1987 the Legislature  
            enhanced an offender's sentence for a murder that occurs  
            when the shooter is inside a car.  Other legislation has  
            enhanced sentences for a variety of crimes committed  
            against certain classes of victims or committed under  
            specific circumstances.

            "California courts have been no less disapproving of  
            California's sentencing laws, referring to them in  
            various published opinions as 'labyrinthine procedures,'  
            'mind-numbing complicated,' and a 'legislative  
            monstrosity, which is bewildering in its complexity.'

            "Similarly, in 1991 the California District Attorneys  
            Association sponsored a bill 'to reform, simplify, and  
            revamp California's sentencing law.'  As explained in the  
            Senate Judiciary Committee analysis of that bill:

               Existing law contains over 30 possible sentencing  
               triads for felony offenses.  The sentencing formulas  
               are complex, inconsistent and confusing.  A judge is  
               often required to complete a worksheet which can be  
               more complicated than an IRS form in order to  
               calculate the proper sentence.  When mathematical  







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               errors or other mistakes are made, the case is often  
               reversed on appeal. ?"


           ASSEMBLY FLOOR  : 
          AYES:  Adams, Anderson, Arambula, Bass, Beall, Bill  
            Berryhill, Blakeslee, Block, Blumenfield, Bradford,  
            Brownley, Buchanan, Caballero, Charles Calderon, Carter,  
            Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,  
            DeVore, Emmerson, Eng, Feuer, Fletcher, Fong, Fuentes,  
            Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore,  
            Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber,  
            Huffman, Jeffries, Jones, Knight, Lieu, Logue, Bonnie  
            Lowenthal, Ma, Mendoza, Miller, Nava, Nestande, Niello,  
            Nielsen, Norby, V. Manuel Perez, Portantino, Ruskin,  
            Salas, Silva, Smyth, Solorio, Swanson, Torlakson, Torres,  
            Torrico, Tran, Villines, John A. Perez
          NO VOTE RECORDED:  Ammiano, Tom Berryhill, Evans, Monning,  
            Saldana, Skinner, Audra Strickland, Yamada, Vacancy


          RJG:mw  8/17/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

                                ****  END  ****