BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1844|
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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
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