BILL NUMBER: SB 325 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Alquist
FEBRUARY 25, 2009
An act to amend Sections 290.05, 290.06, 290.07, and 1203 of the
Penal Code, and to amend Section 706 of the Welfare and Institutions
Code, relating to sex offenders.
LEGISLATIVE COUNSEL'S DIGEST
SB 325, as introduced, Alquist. Sex offenders: assessments.
Existing law requires every person required to register as a sex
offender to be subject to assessment by the State-Authorized Risk
Assessment Tool for Sex Offenders (SARATSO). Existing law establishes
the SARATSO Review Committee and directs the committee to ensure
that the SARATSO reflects the most reliable, objective, and
well-established protocols for predicting sex offender risk of
recidivism, has been scientifically validated and cross validated,
and is widely accepted by the courts. Existing law also requires the
SARATSO Training Committee to develop a training program for persons
authorized to perform the risk assessments. Under existing law, this
training is required to be conducted by experts in the field of risk
assessment and the use of actuarial instruments in predicting sex
offender risk.
This bill would provide a protocol for an agency that scores the
SARATSO and believes that a score does not represent the person's
true risk level to submit the case to certain experts for possible
override.
Existing law requires the Department of Corrections and
Rehabilitation and the State Department of Mental Health to perform a
risk assessment of every eligible person under their jurisdiction,
as specified.
This bill would require those departments to each maintain a
database to record the risk assessment scores of those persons, and
to send those scores to the Department of Justice, to be maintained
by the Sex Offender Tracking Program.
Existing law requires specified persons who administer the SARATSO
to have access to all relevant records concerning a person on whom a
risk assessment is being performed.
This bill would require any person acting under authority from the
SARATSO Review Committee as an expert to also have access to those
records.
Existing law requires probation officers to include in their
probation reports information on the results of the SARATSO performed
on any person required to register as a sex offender pursuant to
certain provisions of law.
This bill would require probation officers to include that
information on additional persons, including certain juveniles.
By requiring additional SARATSO assessments by county probation
officers, this bill would impose a state-mandated local program.
Under existing law, after adjudging a minor to be a ward of the
court, the court is required to hear evidence on the proper
disposition of the minor. The court is required to receive in
evidence the social study of the minor made by the probation officer,
and other relevant and material evidence, as specified.
This bill would also require the court to receive in evidence the
risk assessment score of the minor, if applicable.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 290.05 of the Penal Code is amended to read:
290.05. (a) The SARATSO Training Committee shall be comprised of
a representative of the State Department of Mental Health, a
representative of the Department of Corrections and Rehabilitation, a
representative of the Attorney General's Office, and a
representative of the Chief Probation Officers of California.
(b) On or before January 1, 2008, the SARATSO Training Committee,
in consultation with the Corrections Standards Authority and the
Commission on Peace Officer Standards and Training, shall develop a
training program for persons authorized by this code to administer
the SARATSO, as set forth in Section 290.04.
(c) (1) The Department of Corrections and Rehabilitation shall be
responsible for overseeing the training of persons who will
administer the SARATSO pursuant to paragraph (1) or (2) of
subdivision (a) of Section 290.06.
(2) The State Department of Mental Health shall be responsible for
overseeing the training of persons who will administer the SARATSO
pursuant to paragraph (3) of subdivision (a) of Section 290.06.
(3) The Correction Standards Authority shall be responsible for
developing standards for the training of persons who will administer
the SARATSO pursuant to paragraph (4) or (5)
or (6) of subdivision (a) of Section 290.06.
(4) The Commission on Peace Officer Standards and Training shall
be responsible for developing standards for the training of persons
who will administer the SARATSO pursuant to subdivision (c)
(b) of Section 290.06.
(d) The training shall be conducted by experts in the field of
risk assessment and the use of actuarial instruments in predicting
sex offender risk. Subject to requirements established by the
committee, the Department of Corrections and Rehabilitation, the
State Department of Mental Health, probation departments, and
authorized local law enforcement agencies shall designate key persons
within their organizations to attend training and, as authorized by
the department, to train others within their organizations designated
to perform risk assessments as required or authorized by law. Any
person who administers the SARATSO shall receive training no less
frequently than every two years.
(e) If the agency responsible for scoring the SARATSO believes an
individual score does not represent the person's true risk level,
based on factors in the offender's record, the agency may submit the
case to the experts retained by the SARATSO Review Committee to
monitor the scoring of the SARATSO. Those experts shall be guided by
empirical research in determining whether to raise or lower the risk
level. Agencies that score the SARATSO shall develop a protocol for
submission of risk level override requests to the experts retained in
accordance with this subdivision.
(e)
(f) The SARATSO may be performed for purposes
authorized by statute only by persons trained pursuant to this
section.
SEC. 2. Section 290.06 of the Penal Code is amended to read:
290.06. Effective on or before July 1, 2008, the SARATSO, as set
forth in Section 290.04, shall be administered as follows:
(a) (1) The Department of Corrections and Rehabilitation shall
assess every eligible person who is incarcerated in state prison.
Whenever possible, the assessment shall take place at least four
months, but no sooner than 10 months, prior to release from
incarceration.
(2) The department shall assess every eligible person who is on
parole if the person was not assessed prior to release from
state prison . Whenever possible, the assessment shall take
place at least four months, but no sooner than 10 months, prior to
termination of parole. The department shall record in a database
the risk assessment scores of persons assessed pursuant to this
paragraph and paragraph (1), and any risk assessment score that was
submitted to the department by a probation officer pursuant to
Section 1203.
(3) The State Department of Mental Health shall assess
every eligible person who is committed to that department. Whenever
possible, the assessment shall take place at least four months, but
no sooner than 10 months, prior to release from commitment. The
State Department of Mental Health shall record in a database the risk
assessment scores of persons assessed pursuant to this paragraph and
any risk assessment score that was submitted to the department by a
probation officer pursuant to Section 1203.
(4) Commencing January 1, 2010, the Department of Corrections and
Rehabilitation and the State Department of Mental Health shall send
the scores obtained in accordance with paragraphs (2) and (3)
respectively, to the Department of Justice Sex Offender Tracking
Program not later than 30 days after the date of the assessment. The
risk assessment score of an offender shall be made part of his or her
file maintained by the Department of Justice Sex Offender Tracking
Program as soon as possible without financial impact, but no later
than January 1, 2012.
(4)
(5) Each probation department shall assess every
eligible person for whom it prepares a report pursuant to Section
1203.
(5)
(6) Each probation department shall assess every
eligible person under its supervision who was not assessed pursuant
to paragraph (4) (5) . The assessment
shall take place prior to the termination of probation, but no later
than January 1, 2010.
(b) If a person required to be assessed pursuant to subdivision
(a) was assessed pursuant to that subdivision within the previous
five years, a reassessment is permissible but not required.
(c) The SARATSO Review Committee established pursuant to Section
290.04, in consultation with local law enforcement agencies, shall
establish a plan and a schedule for assessing eligible persons not
assessed pursuant to subdivision (a). The plan shall provide for
adult males to be assessed on or before January 1, 2012, and for
females and juveniles to be assessed on or before January 1, 2013,
and it shall give priority to assessing those persons most recently
convicted of an offense requiring registration as a sex offender. On
or before January 15, 2008, the committee shall introduce legislation
to implement the plan.
(b) Eligible persons not assessed pursuant to subdivision (a) may
be assessed as follows:
(1) Upon request of the law enforcement agency in the jurisdiction
in which the person is registered pursuant to Sections 290 to
290.023, inclusive, the person shall be assessed. The law enforcement
agency may enter into a memorandum of understanding with a probation
department to perform the assessment. In the alternative, the law
enforcement agency may arrange to have personnel trained to perform
the risk assessment in accordance with subdivision (d) of Section
290.05.
(2) Eligible persons not assessed pursuant to subdivision (a) may
request that a risk assessment be performed. A request form shall be
available at registering law enforcement agencies. The person
requesting the assessment shall pay a fee for the assessment that
shall be sufficient to cover the cost of the assessment. The risk
assessment so requested shall be performed either by the probation
department, if a memorandum of understanding is established between
the law enforcement agency and the probation department, or by
personnel who have been trained to perform risk assessment in
accordance with subdivision (d) of Section 290.05.
(d)
(c) On or before January 1, 2008, the SARATSO Review
Committee shall research the appropriateness and feasibility of
providing a means by which an eligible person subject to assessment
may, at his or her own expense, be assessed with the SARATSO by a
governmental entity prior to his or her scheduled assessment. If the
committee unanimously agrees that such a process is appropriate and
feasible, it shall advise the Governor and the Legislature of the
selected tool, and it shall post its decision on the Department of
Corrections and Rehabilitation's Internet Web site. Sixty days after
the decision is posted, the established process shall become
effective.
(e)
(d) For purposes of this section,"eligible person"
means a person who was convicted of an offense that requires him or
her to register as a sex offender pursuant to Section 290 and who
has not been assessed with the SARATSO within the previous
five years is eligible for assessment, pursuant to the
official Coding Rules designated for use with the risk assessment
instrument by the author of any risk assessment instrument (SARATSO)
selected by the SARATSO Review Committee .
(e) Persons authorized to perform risk assessments pursuant to
this section, Section 1203, and Section 706 of the Welfare and
Institutions Code shall be immune from liability for good faith
conduct under this act.
SEC. 3. Section 290.07 of the Penal Code is amended to read:
290.07. Notwithstanding any other provision of law, any person
authorized by statute to administer the State Authorized Risk
Assessment Tool for Sex Offenders and trained pursuant to Section
290.06 , and any person acting under authority from the SARATSO
Review Committee as an expert to train, monitor, or review scoring by
persons who administer the SARATSO pursuant to Section 290.05 or
1203 of this code or Section 706 of the Welfare and Institutions
Code, shall be granted access to all relevant records
pertaining to a registered sex offender, including, but not limited
to, criminal histories, sex offender registration records, police
reports, probation and presentencing reports, judicial records and
case files, juvenile records, psychological evaluations and
psychiatric hospital reports, sexually violent predator treatment
program reports, and records that have been sealed by the courts or
the Department of Justice. Records and information obtained under
this section shall not be subject to the California Public Records
Act, Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1 of the Government Code.
SEC. 4. Section 1203 of the Penal Code is amended to read:
1203. (a) As used in this code, "probation" means the suspension
of the imposition or execution of a sentence and the order of
conditional and revocable release in the community under the
supervision of a probation officer. As used in this code,
"conditional sentence" means the suspension of the imposition or
execution of a sentence and the order of revocable release in the
community subject to conditions established by the court without the
supervision of a probation officer. It is the intent of the
Legislature that both conditional sentence and probation are
authorized whenever probation is authorized in any code as a
sentencing option for infractions or misdemeanors.
(b) (1) Except as provided in subdivision (j), if a person is
convicted of a felony and is eligible for probation, before judgment
is pronounced, the court shall immediately refer the matter to a
probation officer to investigate and report to the court, at a
specified time, upon the circumstances surrounding the crime and the
prior history and record of the person, which may be considered
either in aggravation or mitigation of the punishment.
(2) (A) The probation officer shall immediately investigate and
make a written report to the court of his or her findings and
recommendations, including his or her recommendations as to the
granting or denying of probation and the conditions of probation, if
granted.
(B) Pursuant to Section 828 of the Welfare and Institutions Code,
the probation officer shall include in his or her report any
information gathered by a law enforcement agency relating to the
taking of the defendant into custody as a minor, which shall be
considered for purposes of determining whether adjudications of
commissions of crimes as a juvenile warrant a finding that there are
circumstances in aggravation pursuant to Section 1170 or to deny
probation.
(C) If the person was convicted of an offense that requires him or
her to register as a sex offender pursuant to Section 290
Sections 290 to 290.023, inclusive, or if the
probation report recommends that registration be ordered at
sentencing pursuant to Section 290.006 , the probation officer'
s report shall include the results of the State-Authorized Risk
Assessment Tool for Sex Offenders (SARATSO) administered pursuant to
Sections 290.04 to 290.06, inclusive, if applicable.
(D) The probation officer shall also include in the report his or
her recommendation of both of the following:
(i) The amount the defendant should be required to pay as a
restitution fine pursuant to subdivision (b) of Section 1202.4.
(ii) Whether the court shall require, as a condition of probation,
restitution to the victim or to the Restitution Fund and the amount
thereof.
(E) The report shall be made available to the court and the
prosecuting and defense attorneys at least five days, or upon request
of the defendant or prosecuting attorney nine days, prior to the
time fixed by the court for the hearing and determination of the
report, and shall be filed with the clerk of the court as a record in
the case at the time of the hearing. The time within which the
report shall be made available and filed may be waived by written
stipulation of the prosecuting and defense attorneys that is filed
with the court or an oral stipulation in open court that is made and
entered upon the minutes of the court.
(3) At a time fixed by the court, the court shall hear and
determine the application, if one has been made, or, in any case, the
suitability of probation in the particular case. At the hearing, the
court shall consider any report of the probation officer, including
the results of the SARATSO, if applicable, and shall make a statement
that it has considered the report, which shall be filed with the
clerk of the court as a record in the case. If the court determines
that there are circumstances in mitigation of the punishment
prescribed by law or that the ends of justice would be served by
granting probation to the person, it may place the person on
probation. If probation is denied, the clerk of the court shall
immediately send a copy of the report to the Department of
Corrections and Rehabilitation at the prison or other institution to
which the person is delivered.
(4) The preparation of the report or the consideration of the
report by the court may be waived only by a written stipulation of
the prosecuting and defense attorneys that is filed with the court or
an oral stipulation in open court that is made and entered upon the
minutes of the court, except that there shall be no waiver unless the
court consents thereto. However, if the defendant is ultimately
sentenced and committed to the state prison, a probation report shall
be completed pursuant to Section 1203c.
(c) If a defendant is not represented by an attorney, the court
shall order the probation officer who makes the probation report to
discuss its contents with the defendant.
(d) If a person is convicted of a misdemeanor, the court may
either refer the matter to the probation officer for an investigation
and a report or summarily pronounce a conditional sentence. If the
person was convicted of an offense that requires him or her to
register as a sex offender pursuant to Section
Sections 290 to 290.023, inclusive, or if the
probation officer recommends that the court, at sentencing, order the
offender to register as a sex offender pursuant to Sect
ion 290.006 , the court shall refer the matter to the probation
officer for the purpose of obtaining a report on the results of the
State-Authorized Risk Assessment Tool for Sex Offenders administered
pursuant to Sections 290.04 to 290.06, inclusive, if applicable,
which the court shall consider. If the case is not referred to the
probation officer, in sentencing the person, the court may consider
any information concerning the person that could have been included
in a probation report. The court shall inform the person of the
information to be considered and permit him or her to answer or
controvert the information. For this purpose, upon the request of the
person, the court shall grant a continuance before the judgment is
pronounced.
(e) Except in unusual cases where the interests of justice would
best be served if the person is granted probation, probation shall
not be granted to any of the following persons:
(1) Unless the person had a lawful right to carry a deadly weapon,
other than a firearm, at the time of the perpetration of the crime
or his or her arrest, any person who has been convicted of arson,
robbery, carjacking, burglary, burglary with explosives, rape with
force or violence, torture, aggravated mayhem, murder, attempt to
commit murder, trainwrecking, kidnapping, escape from the state
prison, or a conspiracy to commit one or more of those crimes and who
was armed with the weapon at either of those times.
(2) Any person who used, or attempted to use, a deadly weapon upon
a human being in connection with the perpetration of the crime of
which he or she has been convicted.
(3) Any person who willfully inflicted great bodily injury or
torture in the perpetration of the crime of which he or she has been
convicted.
(4) Any person who has been previously convicted twice in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony.
(5) Unless the person has never been previously convicted once in
this state of a felony or in any other place of a public offense
which, if committed in this state, would have been punishable as a
felony, any person who has been convicted of burglary with
explosives, rape with force or violence, torture, aggravated mayhem,
murder, attempt to commit murder, trainwrecking, extortion,
kidnapping, escape from the state prison, a violation of Section 286,
288, 288a, or 288.5, or a conspiracy to commit one or more of those
crimes.
(6) Any person who has been previously convicted once in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony, if
he or she committed any of the following acts:
(A) Unless the person had a lawful right to carry a deadly weapon
at the time of the perpetration of the previous crime or his or her
arrest for the previous crime, he or she was armed with a weapon at
either of those times.
(B) The person used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the previous
crime.
(C) The person willfully inflicted great bodily injury or torture
in the perpetration of the previous crime.
(7) Any public official or peace officer of this state or any
city, county, or other political subdivision who, in the discharge of
the duties of his or her public office or employment, accepted or
gave or offered to accept or give any bribe, embezzled public money,
or was guilty of extortion.
(8) Any person who knowingly furnishes or gives away
phencyclidine.
(9) Any person who intentionally inflicted great bodily injury in
the commission of arson under subdivision (a) of Section 451 or who
intentionally set fire to, burned, or caused the burning of, an
inhabited structure or inhabited property in violation of subdivision
(b) of Section 451.
(10) Any person who, in the commission of a felony, inflicts great
bodily injury or causes the death of a human being by the discharge
of a firearm from or at an occupied motor vehicle proceeding on a
public street or highway.
(11) Any person who possesses a short-barreled rifle or a
short-barreled shotgun under Section 12020, a machinegun under
Section 12220, or a silencer under Section 12520.
(12) Any person who is convicted of violating Section 8101 of the
Welfare and Institutions Code.
(13) Any person who is described in paragraph (2) or (3) of
subdivision (g) of Section 12072.
(f) When probation is granted in a case which comes within
subdivision (e), the court shall specify on the record and shall
enter on the minutes the circumstances indicating that the interests
of justice would best be served by that disposition.
(g) If a person is not eligible for probation, the judge shall
refer the matter to the probation officer for an investigation of the
facts relevant to determination of the amount of a restitution fine
pursuant to subdivision (b) of Section 1202.4 in all cases where the
determination is applicable. The judge, in his or her discretion, may
direct the probation officer to investigate all facts relevant to
the sentencing of the person. Upon that referral, the probation
officer shall immediately investigate the circumstances surrounding
the crime and the prior record and history of the person and make a
written report to the court of his or her findings. The findings
shall include a recommendation of the amount of the restitution fine
as provided in subdivision (b) of Section 1202.4.
(h) If a defendant is convicted of a felony and a probation report
is prepared pursuant to subdivision (b) or (g), the probation
officer may obtain and include in the report a statement of the
comments of the victim concerning the offense. The court may direct
the probation officer not to obtain a statement if the victim has in
fact testified at any of the court proceedings concerning the
offense.
(i) No probationer shall be released to enter another state unless
his or her case has been referred to the Administrator of the
Interstate Probation and Parole Compacts, pursuant to the Uniform Act
for Out-of-State Probationer or Parolee Supervision (Article 3
(commencing with Section 11175) of Chapter 2 of Title 1 of Part 4)
and the probationer has reimbursed the county that has jurisdiction
over his or her probation case the reasonable costs of processing his
or her request for interstate compact supervision. The amount and
method of reimbursement shall be in accordance with Section 1203.1b.
(j) In any court where a county financial evaluation officer is
available, in addition to referring the matter to the probation
officer, the court may order the defendant to appear before the
county financial evaluation officer for a financial evaluation of the
defendant's ability to pay restitution, in which case the county
financial evaluation officer shall report his or her findings
regarding restitution and other court-related costs to the probation
officer on the question of the defendant's ability to pay those
costs.
Any order made pursuant to this subdivision may be enforced as a
violation of the terms and conditions of probation upon willful
failure to pay and at the discretion of the court, may be enforced in
the same manner as a judgment in a civil action, if any balance
remains unpaid at the end of the defendant's probationary period.
(k) Probation shall not be granted to, nor shall the execution of,
or imposition of sentence be suspended for, any person who is
convicted of a violent felony, as defined in subdivision (c) of
Section 667.5, or a serious felony, as defined in subdivision (c) of
Section 1192.7, and who was on probation for a felony offense at the
time of the commission of the new felony offense.
SEC. 5. Section 706 of the Welfare and Institutions Code is
amended to read:
706. After finding that a minor is a person described in Section
601 or 602, the court shall hear evidence on the question of the
proper disposition to be made of the minor. The court shall receive
in evidence the social study of the minor made by the probation
officer and any other relevant and material evidence that may be
offered, including any written or oral statement offered by the
victim, the parent or guardian of the victim if the victim is a
minor, or if the victim has died or is incapacitated, the victim's
next of kin, as authorized by subdivision (b) of Section 656.2.
In addition, if the probation officer has recommended that the minor
be transferred to the Department of Corrections and Rehabilitation,
Division of Juvenile Justice pursuant to an adjudication
for an offense requiring him or her to register as a sex offender
pursuant to Section 290.008 of the Penal Code, the SARATSO selected
pursuant to subdivision (d) of Section 290.04 of the Penal Code shall
be used to assess the minor, and the court shall receive that risk
assessment score into evidence. In any judgment and order of
disposition, the court shall state that the social study made by the
probation officer has been read and that the social study and any
statement has been considered by the court.
SEC. 6. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.