BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                                 THIRD READING


          Bill No:  SB 840
          Author:   Yee (D), et al
          Amended:  4/13/10
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 3/23/10
          AYES:  Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,  
            Wright
           
          SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8


           SUBJECT  :    Reporting crimes

           SOURCE  :     Richmond Improvement Association


           DIGEST  :    This bill expands the duty to report the  
          commission of a murder, rape or specified sex offense on a  
          child under the age of 18.

           ANALYSIS  :    Existing law provides that "every person who,  
          after a felony has been committed, harbors, conceals or  
          aids a principal in such a felony, with the intent that  
          said principal may avoid or escape from arrest, trial,  
          conviction or punishment, having knowledge that said  
          principal has committed such a felony or has been charged  
          with such a felony or convicted thereof is an accessory to  
          the felony and is guilty of a wobbler."  (Sections 32 and  
          33 of the Penal Code)
           
          Existing law provides that it is a crime for any person  
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          having knowledge of the actual commission of a crime to  
          take money or property of another, or any gratuity or  
          reward, or any engagement or promise thereof upon any  
          agreement or understanding to compound or conceal a crime  
          or abstain from any prosecution thereof or to withhold any  
          evidence thereof.  The penalty for such crime is a wobbler  
          if the crime being concealed was punishable by death or  
          life in prison or any other felony and a six-month  
          misdemeanor if the crime being concealed was a misdemeanor.  
           (Section 153 of the Penal Code)
           
          Existing law imposes specified requirements on a mandated  
          reporter, as defined, with respect to the observation and  
          reporting of physical abuse of an elder or dependent adult,  
          with failure to report punishable as a misdemeanor.   
          (Sections 15630 and 15634 of the Welfare and Institutions  
          Code)
           
          Existing law, the Elder Abuse and Dependent Adult Civil  
          Protection Act, provides for the reporting of actual or  
          suspected physical or other abuse, as defined, of an elder  
          or dependent adult by specified persons and entities,  
          including care custodians, and imposes various requirements  
          on state and local agencies in processing, investigating,  
          and reporting on these reports.  (Section 15600 et seq. of  
          the Welfare and Institutions Code)
           
          Existing law provides that a health care practitioner,  
          child care provider, child protective agency employee,  
          child visitation monitor, firefighter, animal control or  
          humane society officer who reasonably suspects that a child  
          has been abused must report such suspected child abuse to a  
          child protective agency.  (Section 11166 of the Penal Code)  
            
           
          Existing law provides that any person who reasonably  
          believes that he/she has observed the commission of a  
          murder, rape or lewd act on a child by force, where the  
          victim is a child under the age of 14 years shall notify a  
          peace officer.  Failure to notify is a misdemeanor  
          punishable by a fine of not more than $1,500, up to six  
          months in jail, or both fine and jail.  The duty to report  
          does not apply to a person who is related to either the  
          victim or offender, a person who fails to report because of  







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          a reasonable mistake of fact or a person who fails to  
          report based on a reasonable fear for his/her own  
          reasonable fear for his or her own safety or for the safety  
          of his/her family.  (Section 152.3 of the Penal Code)

          This bill increases the duty to report specified crimes,  
          including infractions,  against a victim who is under the  
          age of 18.

          This bill adds to the offenses that must be reported if  
          committed against a victim under the age of 18 to include  
          sodomy, lewd acts on a child, oral copulation or sexual  
          penetration by an unknown object when any of the offenses  
          are accomplished by use of force, violence, duress, menace,  
          or fear of immediate and unlawful bodily injury on the  
          victim or another person.

          This bill exempts the victim and a person under 12 years of  
          age from the duty to report.

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

           SUPPORT  :   (Verified  4/20/10)

          Richmond Improvement Association (source)
          California Coalition Against Sexual Assault
          California Psychiatric Association
          California State PTA
          California State Sheriffs' Association
          California Statewide Law Enforcement Association 
          Childhelp
          Children Now
          Children's Advocacy Institute
          Childrens Hospital Los Angeles
          Crime Victims Action Alliance
          Crime Victims United
          District Attorney of the City and County of San Francisco
          Peace Officers Research Association of California
          Police Department of the City and County of San Francisco
          San Bernardino County Sheriff's Department
          Stockton Unified School District

           OPPOSITION  :    (Verified  4/20/10)







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          American Civil Liberties Union
          California District Attorneys Association

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          this bill revises this Act in response to the October 24,  
          2009 alleged rape in Richmond, California, when a  
          16-year-old female student of Richmond High School was  
          allegedly raped repeatedly by a group of young males in a  
          courtyard on the school campus while a  homecoming dance  
          was being held.  The existing statutes could not apply  
          since the victim was older than  14 years old.  This bill  
          updates this statute to cover all children. 

          It is unconscionable someone could turn its back to a minor  
          being assaulted; this bill is an attempt to reassert the  
          collective duty to protect our children.   

           ARGUMENTS IN OPPOSITION  :    The California District  
          Attorneys Association opposes this bill, stating:  
             
            "We appreciate what we perceive to be the implicit goal  
            of this bill: to increase the frequency with which  
            terrible crimes are reported to law enforcement.   
            Unfortunately, we are concerned that this bill could  
            jeopardize prosecutions for the underlying crimes that  
            you are seeking to have reported.  It is for this reason  
            that CDAA opposed the creation of Penal Code Section  
            152.3 by AB 1422 (Torlakson, Chapter 477, Statutes of  
            2000) and must now oppose its expansion.

            "Our specific concern lies with the fact that, if a  
            prosecutor needs or wants to use a witness who has failed  
            to report the crime at issue, the prosecutor will likely  
            have to grant the witness immunity from the offense of  
            failing to notify a peace officer.  Conferring immunity  
            can damage the People's case because the immunity  
            agreement will be disclosed to the defense and could be  
            used as the basis for impeachment despite the fact that  
            the jury might not know the nature of the offense for  
            which the witness has been granted immunity.    

            "Additionally, the statute's broad exception from  
            reporting that applies to a witness who fears for his or  







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            her safety or that of his or her family renders this law,  
            as currently written and as proposed to be amended by  
            this bill, essentially toothless.  We fear that this  
            measure will not effectively encourage the reporting of  
            crimes, but could very likely hinder prosecutions of  
            horrific offenses by expanding the breadth of the  
            reporting requirement."


          RJG:mw  4/20/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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