BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 748 (Leno)
As Amended April 1, 2009
Hearing date: April 14, 2009
Penal Code
MK:br
WITNESS RELOCATION AND ASSISTANCE PROGRAM: ADDRESS
HISTORY
Source: San Francisco District Attorney, Kamala Harris
Prior Legislation: SB 594 (Romero) - Ch. 455, Stats. 2008
SB 1739 (Morrow) - Ch. 210, Stats. 2002
AB 856 (Hertzberg/Leslie) - Ch. 507, Stats. 1997
AB 270 (Kuykendall) - 1995, died in Assembly
Appropriations Committee
Support: Crime Victims United of California; AFSCME, AFL-CIO;
California District Attorneys Association
Opposition:None known
KEY ISSUES
SHOULD IT BE A MISDEMEANOR FOR A PERSON OR ENTITY TO KNOWINGLY POST
THE HOME ADDRESS OR TELEPHONE NUMBER OF ANY WITNESS OR WITNESS'
FAMILY MEMBER PARTICIPATING IN THE WITNESS RELOCATION AND ASSISTANCE
PROGRAM?
SHOULD CIVIL REMEDIES BE AVAILABLE AGAINST A BUSINESS OR ASSOCIATION
THAT SELLS, SOLICITS OR TRADES ON THE INTERNET THE HOME ADDRESS OR
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TELEPHONE NUMBER OF A PERSON THEY KNOW IS IN THE WITNESS RELOCATION
AND ASSISTANCE PROGRAM?
PURPOSE
The purpose of this bill is to give further protection to people
participating in the Witness Relocation and Assistance Program
by prohibiting their addresses and telephone numbers from being
posted on the Internet.
Existing law establishes the Witness Relocation and Assistance
Program (WRAP) administered by the Attorney General. The
Witness Relocation and Assistance Program provides that in any
criminal proceeding within this state, when the action is
brought by local or state prosecutors, where credible evidence
exists of a substantial danger that a witness may suffer
intimidation or retaliatory violence, the Attorney General may
reimburse state and local agencies for the costs of providing
witness protection services. (Penal Code 14020 and 14022.)
Existing law provides that in the WRAP the Attorney General
shall give priority to matters involving organized crime, gang
activities, drug trafficking, human trafficking, and causes
involving a high degree of risk to the witness. Special regard
shall be given to the elderly, the young, battered, victims of
domestic violence, the infirm, the handicapped and victims of
hate incidents. (Penal Code 14023.)
Existing law provides that the Attorney General shall coordinate
the efforts of state and local agencies to secure witness
protection services and then reimburse those state and local
agencies for the costs of services that he or she determines to
be necessary to protect a witness from bodily injury and
otherwise to assure the health, safety, and welfare of the
witness. The Attorney General may reimburse the state or local
agencies that provide witnesses with any of the following:
Armed protection or escort by law enforcement officials
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or security personnel before, during, or subsequent to,
legal proceedings.
Physical relocation to an alternate residence.
Housing expense.
Appropriate documents to establish a new identity.
Transportation or storage of personal possessions.
Basic living expenses, including, but not limited to,
food, transportation, utility costs, and health care.
Support advocacy, and other services to provide for
witnesses' safe transition into a new environment.
Other services as needed and approved by the Attorney
General. (Penal Code 14024.)
Existing law provides that a witness protection agreement shall
be in writing and sets forth what the agreement shall contain.
(Penal Code 14025)
Existing law provides that no state or local agency shall post
the home address or telephone number of any elected or appointed
official on the Internet without first obtaining the written
permission of that individual. (Government Code 6254.21 (a).)
Existing law provides that no person shall knowingly post the
home address or telephone number of any elected or appointed
official, or of the official's residing spouse or child on the
Internet knowing the person is an elected or appointed official
and intending to cause imminent great bodily harm that is likely
to occur or threatening to cause imminent great bodily harm to
that individual. A violation is a misdemeanor and a violation
that causes actual harm is a wobbler. (Government Code 6254.21
(b).)
Existing law provides that no person, business, or association
shall publicly post or publicly display on the Internet the home
address or telephone number of any elected or appointed official
if that official has made a written demand of that person,
business or association to not disclose his or her home address
or telephone number. (Government Code 6254.21 (c)(1).)
Existing law provides that an official whose home address is
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made public as a result of a violation of the above may bring an
action seeking injunctive or declarative relief, and may be
awarded court costs and reasonable attorney's fees. (Government
Code 6254.21 (c)(2).)
Existing law provides that no person, business, or association
shall solicit, sell, or trade on the Internet the home address
or telephone number of an elected or appointed official with the
intent to cause imminent great bodily harm to the official or
any person residing at the official's home address. (Government
Code 6254.21 (d)(1).)
Existing law provides notwithstanding any other provision of
law, an official whose home address or telephone number is
solicited, sold or traded in violation of the above, may bring
an action and shall be awarded up to three times actual damages
but in no case less than $4000. (Government Code 6254.21
(d)(2).)
Existing law provides that an interactive computer service or
access software provider, as defined, shall not be liable unless
the service or provider intends to abet or cause imminent great
bodily harm to an elected or appointed official. (Government
Code 6254.21 (c).)
This bill provides that no person, state, or local public
agency, or private entity shall knowingly post the home address
or telephone number of any witness or witness' family member
participating in the WRAP on the Internet. A violation of this
subdivision is a misdemeanor punishable by a fine of up to $2500
and/or imprisonment in the county jail up to 6 months. A
violation that leads to the bodily injury of the witness, or
family member of the witness who is participating in the program
is a misdemeanor punishable by up to $5000 and/or up to one year
in the county jail.
This bill provides that upon admission to the WRAP program,
local or state prosecutors shall give each participant a written
opt-out form for submission to relevant Internet search engine
companies or entities. This form shall notify entities of the
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protected person and prevent the inclusion of participants'
addresses and telephone numbers in public Internet search
databases.
This bill provides that a witness whose home address or
telephone number is made public as a result of a violation of
its provisions, as specified, may bring an action seeking
injunctive or declaratory relief in any court of competent
jurisdiction. If a jury or court finds that a violation has
occurred, it may grant injunctive relief and shall award the
witness court costs and reasonable attorney's fees.
This bill provides that no person, business or association shall
solicit, sell, or trade on the Internet the home address or
telephone number of a witness with the intent to cause imminent
great bodily harm to the witness or to any person residing at
the witness' home address.
This bill provides that notwithstanding any other provision of
law, a witness whose home address or telephone number is
solicited, sold or traded in violation of paragraph (1) may
bring an action in any court of competent jurisdiction. If a
jury or court finds that a violation has occurred, it shall
award damages to that witness in an amount up to maximum of
three times the actual damages, but in no case less than $4000.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28,
United States Code (Feb. 9, 2009).
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According to the author:
Across California, witnesses to violent crime heroically
take risks to testify against their perpetrators and
bring justice forward. These witnesses deserve the
fullest protection of the law.
With the continual expansion and advancement of
technology, gang, drug, and interpersonal violence is no
longer limited to the streets. Increasingly, gang
members and violent offenders are using technology to
search for witnesses or victims who may testify or have
testified against them. Gang members have used Internet
search engines that specialize in finding people to
locate witnesses who may not be aware their personal
information is available.
The California Witness Relocation and Assistance Program
(WRAP) is a statewide relocation program for witnesses
who testify against some of the state's most violent
offenders. WRAP participants have stood up against
intensely violent perpetrators responsible for
terrorizing neighborhoods. By cooperating with
prosecutors, these witnesses courageously risk their
lives to stop the violence and protect their
communities. WRAP participants must uproot their
families and move out of their neighborhoods, change
homes, jobs, schools, and start all over. These are
truly the heroes among us.
As of today, there is no prohibition on posting
information about WRAP participants on the numerous
people search websites available to the general public.
This places a significant risk to WRAP participants if
information about their new whereabouts can be so
readily discovered.
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SB 748 seeks to protect WRAP participants from public
disclosure through people search Internet databases.
2. Witness Relocation and Assistance Program
The California Witness Relocation and Protection Program (WRAP)
provides protection of witnesses and their families, friends, or
associates who are endangered due to ongoing or anticipated
testimony in gang, organized crime, or narcotic trafficking
cases or in other cases that have a high degree of risk to the
witness. WRAP reimburses California's district attorneys for
expenses incurred by agencies during the protection of
witnesses. The witnesses are moved out of neighborhoods or
their city and relocated with help to find jobs, schools etc.
There are cases of witnesses who did not stay hidden who have
been killed or injured including a 22 year old man in San
Francisco who was shot to death after returning to his
neighborhood despite the warnings of prosecutors to stay away.
The 2008 Annual Report to the Legislature for California Witness
Protection Program (CWPP now known as WRAP) covers July 1, 2006
to June 30, 2007. According to the report
During this reporting period, the CWPP approved and
funded 383 new cases for 433 witnesses testifying in
criminal proceedings. The program also approved and
reimbursed agency claims totaling $2,885,918 for
authorized expenditures to protect threatened
witnesses, averaging $240,493 in approved
reimbursement claims per month.
The 383 new cases provided protection for 433
witnesses and 667 family members who testified
against 636 defendants. Of these new cases, 293 were
gang-related (77 percent), 8 involved narcotics
trafficking (2 percent), 70 were for other types of
high-risk cases (18 percent), and 12 were related to
domestic violence (3 percent). Charges of homicide
and attempted homicide were the precipitating events
on 69.8 percent of the cases and assault accounted
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for 9.9 percent of the cases. The remaining 20.3
percent involved rape or sexual assault-related
crimes, kidnapping, robbery, threats, narcotic
charges, fraud, and criminal conspiracy.
3. Prohibition against Publication on the Internet
Under existing law, it is a crime for a person to publish the
address of certain public officials on the Internet with the
intent of causing the official or his or her family great bodily
harm. This bill creates a similar protection for those in WRAP.
a. Crime for posting with intent to do harm
This bill would make it a misdemeanor for a person to post
the name, address and telephone number of a person they know
to be a witness protected under WRAP with the intent to
cause harm to the person. It is a misdemeanor punishable by
up to 6 months in jail and a fine up to $2500 (plus
approximately 280% penalty assessments for a total fine of
up to $9500) or both jail and fine to just post the
information. If actual harm occurs then the penalty would
be up to one year in jail and a fine of up to $5000 ($19,000
with penalty assessments.). The concern is that a person
who discovers the location of a witness in WRAP may publish
that location knowing there are those who seek to do harm to
the witness. The person who puts the information on the
Internet may not be liable for actions taken by others under
current law even though he or she knew that the posting of
the information could lead to the harm against the witness.
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SHOULD IT BE A MISDEMEANOR TO POST THE ADDRESS AND TELEPHONE
NUMBER OF A PERSON IN WRAP WITH THE INTENT TO CAUSE THE PERSON
INJURY?
b. Civil injunction
There is also concern that if an Internet search type
company posts the address of a person in WRAP, not knowing
the person is involved in WRAP, this too could lead to the
person being harmed. The intent of this bill is to allow
for a civil action to be brought against a company that
fails to remove an address once they are notified that the
person is in WRAP. A person may seek an injunction against
the company or bring an action for damages. If an action is
brought and a court finds that violation has occurred it
shall award damages to the witness up to a maximum of three
times actual damages or $4000 whichever is greater.
The bill provides that the prosecutor shall make an opt-out
form available to each WRAP participant so that he or she
can send it to any companies listing the information on the
Internet to notify them that the person's information is
protected.
SHOULD THERE BE A CIVIL REMEDY IF AN ENTITY DOES NOT REMOVE THE
WRAP PARTICIPANT'S NAME AFTER NOTIFICATION?
4. Amendments in Judiciary Committee
This bill is double referred to Judiciary Committee which plans
to hear the bill on April 21. The author will take some
technical amendments in that Committee to reorganize the bill in
a way to make the intent clearer. The author will also add a
"savings clause" so that if a more appropriate crime with a
higher penalty can be charged, this bill will not prevent a
district attorney from prosecuting the greater crime.
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