BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
1
0
6
SB 1062 (Strickland) 2
As Introduced February 16, 2010
Hearing date: April 20, 2010
Government, Harbors and Navigation, Health and Safety,
Penal, Vehicle, and Welfare and Institutions Codes
AA:mc
PUBLIC SAFETY OMNIBUS BILL
HISTORY
Source: California District Attorneys Association
Prior Legislation: SB 174 (Strickland) - Ch. 35, Stats. 2009
SB 1241 (Margett) - Ch. 699, Stats. 2008
SB 425 (Margett) - Ch. 302, Stats. 2007
SB 1422 (Margett) - Ch. 901, Stats. 2006
SB 1107 (Senate Committee on Public Safety) - Ch.
279, Stats. 2005
SB 1796 (Senate Committee on Public Safety) - Ch.
405, Stats. 2004
SB 851 (Senate Committee on Public Safety) - Ch.
468, Stats. 2003
SB 1852 (Senate Committee on Public Safety) - Ch.
545, Stats. 2002
SB 485 (Senate Committee on Public Safety) - Ch.
473, Stats. 2001
SB 832 (Senate Committee on Public Safety) - Ch.
853, Stats. 1999
SB 1880 (Senate Committee on Public Safety) - Ch.
606, Stats. 1998
Support: Unknown
(More)
SB 1062 (Strickland)
PageB
Opposition:None known
(THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS: SEE COMMENT 2.)
KEY ISSUE
SHOULD TECHNICAL AND CORRECTIVE CHANGES BE MADE IN VARIOUS CODE
SECTIONS RELATING GENERALLY TO CRIMINAL JUSTICE LAWS, AS SPECIFIED?
PURPOSE
The purpose of this bill is to make technical and corrective
changes to various code sections relating generally to criminal
justice laws, as specified.
Disclosure of Financial Records
Current law generally restricts the disclosure of financial
records by "financial institutions," the definition of which
includes lenders, as specified. (Government Code 7460 et
seq.)
This bill would make an amendment consistent with existing law
to allow for the dissemination of records pursuant to procedures
for the production of records concerning fraudulent escrow and
financial transactions to mortgage fraud investigations dealing
with lenders and brokers, as specified.
"Pimping" of Minors
Current law imposes criminal penalties for deriving support from
the earnings of another's prostitution, as specified. The law
provides in part that, "(i)f the person engaged in prostitution
is a minor over the age of 16 years, the offense is punishable
by imprisonment in the state prison for three, four, or six
years." (Penal Code 266h (b)(1).)
(More)
SB 1062 (Strickland)
PageC
This bill rewords this provision to state it as applying where
the minor is 16 years of age or older.
Current law imposes criminal penalties for deriving support from
the earnings of another's prostitution, with specified penalties
if the other person is a minor over the age of 16 years, or
under 16 years of age. (Penal Code 266h.)
This bill clarifies the application of these penalties when a
minor is 16 years old.
"Pandering" of Minors
Current law imposes criminal penalties for pandering, including
enhanced penalties for pandering a person who is a minor child
over the age of 16 years, or under 16 years of age, as
specified. (Penal Code 266i.)
This bill clarifies the application of these penalties when a
minor is 16 years old.
Possession of Firearm While Subject to a Protective Order
Current law generally prohibits the possession of a firearm
while subject to a protective order, as specified. (Penal Code
273.6.)
This bill makes technical amendments to add cross-references to
these provisions which are consistent with recently-enacted
laws.<1>
Service of Subpoenas
Current law provides that a subpoena may be delivered by mail or
messenger, and specifies that service "shall be effected when
---------------------------
<1> SB 188 (Runner, Chapter 566, Statutes of 2009) permits
certain educational institutions to seek restraining orders on
behalf of students who have been threatened. The proposed
change to this section includes an omitted cross-reference to
the new section created by SB 188.
(More)
SB 1062 (Strickland)
PageD
the witness acknowledges receipt of the subpoena to the sender,
by telephone, by mail, or in person, . . . ." (Penal Code
1328d.)
This bill would add that service also would be effected when the
witness acknowledges receipt of the subpoena to the sender "by
any form of electronic communication, including the Internet, .
. ."
Purely Technical Corrections
This bill additionally makes purely technical corrections to the
following provisions of law:
Harbors and Navigation Code 668 (k);
Penal Code 786;
Repeal of Chapter 3 (commencing with Section 1228) of
Title 8 of Part 2 of the Penal Code, as added by Section 36
of Chapter 28 of the 3rd Extraordinary Session of the
Statutes of 2009, and the related Section 58 of Chapter 28,
Statutes of the 2009-10 Third Extraordinary Session;<2>
--------------------------
<2> Both SBx3 18 and SB 678 (Chapter 608, Statutes of 2009)
enact the California Community Corrections Performance
Incentives Act of 2009. The only substantive difference between
the two is that SB 678 included a victim representative on a
local advisory panel created by the act. Because both bills
enacted new law, they both will become law. To avoid
unnecessary cluttering of the codes, the duplicative language
contained in SBx3 18 should be eliminated, leaving the language
contained in SB 678 intact.
(More)
SB 1062 (Strickland)
PageE
Penal Code 1417.6;<3>
Penal Code 12021 s(g);<4>
Penal Code 13821; and
Vehicle Code 40000.7.
Deferral Language
This bill expressly provides that any section of any other act
enacted by the Legislature during the 2010 calendar year that
takes effect on or before January 1, 2011, and that amends,
amends and renumbers, adds, repeals and adds, or repeals a
section that is amended, amended and renumbered, added, repealed
and added, or repealed by this act shall prevail over this act,
whether that act is enacted prior to or subsequent to the
enactment of this act.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
---------------------------
<3> Penal Code sections 1417 et seq. deals with the
disposition of evidence in criminal cases. Penal Code section
1417.6 (b)(4) speaks to the disposal of property that has been
declared a nuisance and references paragraphs "(2) or (3) of
subdivision (b) of Section 1417.5. There is no paragraph (3) of
subdivision (b) of Section 1417.5, and the reference to
paragraph (2) makes no sense. It appears that the reference to
"subdivision (b)" is a typographical error; the reference should
be to subdivision (c).
<4> See fn.1, supra.
(More)
SB 1062 (Strickland)
PageF
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
(More)
SB 1062 (Strickland)
PageG
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<5>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Purpose of This Bill
This is the annual omnibus bill. In past years, the omnibus
bill has been introduced by all members of the Committee on
Public Safety. This year, like last year, Senator Strickland is
carrying the bill. This bill is similar to the ones introduced
as Committee bills in the past in that it has been introduced
with the following understanding:
The bill's provisions make only technical or minor
changes to the law; and
There is no opposition by any member of the Legislature
or recognized group to the proposal.
--------------------------
<5> Three Judge Court Opinion and Order, 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 (August 4, 2009).
(More)
SB 1062 (Strickland)
PageH
This procedure has allowed for introduction of fewer minor bills
and has saved the Legislature time and expense.
2. Amendments
This bill is proposed consent with the following amendments
deleting provisions from the bill as introduced:
delete section 4 of the bill, amending Health and Safety
Code 11370.2;
delete section 5 of the bill, amending Penal Code 171b
(a);
delete section 6 of the bill, amending Penal Code
171.5 (c);
delete section 7 of the bill, amending Penal Code
245.5 (c);
delete section 11 of the bill, amending Penal Code
626.10 (a);
delete section 16 of the bill, amending Penal Code
11160;
delete section 18 of the bill, amending Penal Code
13540;
delete section 19 of the bill, amending Penal Code
13542;
delete section 22 of the bill, amending Welfare and
Institutions Code section 12301.6; and
delete section 23 of the bill, amending Welfare and
Institutions Code section 12305.86.
This bill also will be amended to add the following additional
provisions:
Sex Offender Risk Assessment
These amendments would clarify Penal Code section 290.06 as
follows:
290.06. (a)(5) Each probation department shall, prior to
sentencing, assess every eligible person, for whom as defined in
(More)
SB 1062 (Strickland)
PageI
subdivision (d), whether or not it prepares a report pursuant to
Section 1203.
Explanation: Clarifies law regarding risk assessment of sex
offenders with current law in subdivision (d), which was amended
effective January 1, 2010. Clarification was suggested by an
article by a judge noting the need for a technical amendment
regarding whether risk assessment is required even if probation
does not prepare a report pursuant to Penal Code section 1203.
High Risk Sex Offender Program
These amendments would update a name in Penal Code section
1203e:
1203e. (c) The probation officer shall send a copy of the Facts
of Offense Sheet to the Department of Justice Sex Offender
Tracking Program High Risk Sex Offender Program within 30 days
of the person's sex offense conviction, and it shall be made
part of the registered sex offender's file maintained by the
Department of Justice Sex Offender Tracking Program. . . .
Explanation: Conforms name of the Department of Justice program
maintaining these records to its current name.
These amendments would make the following change to Penal Code
section 13885:
13885. . . . In enacting this chapter, the Legislature
intends to support efforts of the criminal justice community
through a focused effort by law enforcement and prosecuting
agencies to identify, locate, apprehend, and prosecute high risk
sexual habitual sex offenders.
Explanation Conform statute to current name of program at DOJ
receiving and storing the required information.
These amendments would update terminology in Penal Code section
13885.1 as follows:
(More)
SB 1062 (Strickland)
PageJ
13885.1. . . . The Sexual Predator Apprehension Team force
shall be comprised of California Bureau of Investigation special
agent teams throughout California. The teams shall focus on
repeat sex offenders, and perform the following activities: (a)
Coordinate state and local investigative resources to apprehend
sexual habitual high risk sex offenders and persons required to
register under Section 290 who violate the law or conditions of
probation or parole. (b) Target and monitor chronic repeat
violent sex offenders before the commission of additional sexual
offenses. (c) Develop profiles in unsolved sexual assault
cases.
Explanation: Replace the term "sexual habitual offender," which
is outdated in light of the state risk assessment statutory
scheme set out in Penal Code sections 290.03-290.08, and
replaces it with the term "high risk sex offender."
These amendments would update terminology as follows, and make
an additional clarification:
13885.2. The Attorney General, subject to the availability of
funds, shall establish in the Department of Justice the Sexual
Habitual High Risk Sex Offender Program, which is hereby
created, which shall evaluate the number of arrests and
convictions for sex offenses and the length of sentences for
repeat offenders. receive the Facts of Offense Sheets, pursuant
to Section 1203e. The Program shall use the scores of sex
offenders reported on the Facts of Offense Sheets for the
purpose of identifying, assessing, monitoring, and containing
those sex offenders at high risk of re-offending. . . .
Explanation: Replace outdated title with the correct title for
the program at the Department of Justice charged with
identifying high risk sex offenders and collecting risk
assessment scores. The program is now the "High Risk Sex
Offender Program."
These amendments would revise Penal Code section 13885.4
concerning high risk sex offenders to reflect current practice,
as follows:
(More)
SB 1062 (Strickland)
PageK
13885.4. As used in this chapter, " sexual habitual high risk
sex offenders" means those persons who are required to register
as a sex offender pursuant to Section 290, et seq., who have
been either of the following :
(a) Convicted of two or more violent offenses
against a person involving force or violence which
include at least one sex offense.
(b) Convicted of an offense listed in Section 290 and also
meet one of the following
criteria:
(1) Have three or more felony arrests for sex
offenses specified in Section 290 on
their criminal record.
(2) Have five or more felony arrests for
any type of offense on their criminal record.
(3) Have 10 or more arrests, either felony
or misdemeanor, for any type of offense
on their criminal record.
(4) Have five or more arrests, either felony or
misdemeanor, for any type of offense,
including either of the following:
(A) At least one conviction for multiple sex
offenses which shall mean a
conviction arising from the commission of two or
more offenses listed in
subdivision (a) of Section 290 in one transaction.
(B) At least two arrests for a single sex
offense listed in subdivision (a) of
Section 290.
assessed with a score equivalent to "High Risk" on the SARATSO
identified for that person's specific population as set forth in
Section 290.04, or who are identified as being at high risk of
re-offense by the Department of Justice, based on the person's
SARATSO score when considered in combination with other,
empirically-based risk factors.
Explanation: Replace outmoded, non-evidence based definition of
a "sexual habitual offender" with the current definition of a
high risk sex offender, in conformance with the state's risk
(More)
SB 1062 (Strickland)
PageL
assessment scheme set out in Penal Code sections 290.03-290.08.
These amendments would update Penal Code section 13885.6
concerning information about high risk sex offenders as follows:
13885.6. The Department of Justice shall establish and maintain
a comprehensive file of existing information maintained by law
enforcement agencies, the Department of Corrections and
Rehabilitation , the Department of Mental Health , Probation, the
Department of Motor Vehicles, and the Department of Justice.
The Department of Justice may request the Department of
Corrections and Rehabilitation, the Department of Mental Health,
the Department of Motor Vehicles, Probation, and law enforcement
agencies to provide existing information from their files
regarding persons identified by the Department of Justice as
sexual habitual high risk sex offenders pursuant to Section
13885.4 . The Department of Corrections and Rehabilitation , the
Department of Mental Health , Probation, the Department of Motor
Vehicles, and law enforcement agencies, when requested by the
Department of Justice, shall provide copies of existing
information to include but not be limited to: criminal
histories, Facts of Offense Sheet(s), sex offender registration
records, police reports, probation and pre-sentencing reports,
judicial records and case files, juvenile records, psychological
evaluations and psychological hospital reports, Sexually Violent
Predator treatment reports, and records that have been sealed ,
maintained in their files regarding persons identified by the
Department of Justice as sexual habitual high risk sex
offenders, and shall provide follow-up information to the
Department of Justice as it becomes available. This information
shall be provided to the Department of Justice in a manner and
format jointly approved by the submitting department and
Department of Justice. This sexual habitual high risk sex
offender file shall be maintained by the Department of Justice
High Risk Sex Offender Program and shall contain a complete
physical description and method of operation of the sexual
habitual high risk sex offender, information describing his or
her interaction with criminal justice agencies, and his or her
prior criminal record. The Department of Justice also shall
prepare a summary profile bulletin of for each sexual habitual
(More)
SB 1062 (Strickland)
PageM
high risk sex offender for distribution to law enforcement
agencies.
Explanation: Conform statute on collection of information about
high risk sex offenders by the Department of Justice with the
current statutory scheme regarding records used in sex offender
risk assessment, Penal Code section 290.08.
These amendments would update Penal Code section 13885.8
concerning the sharing of information about high risk sex
offenders between DOJ and other law enforcement agencies:
(More)
13885.8. The Department of Justice shall provide electronically ,
a summary profile bulletin of for each sexual habitual high risk
sex offender to each law enforcement agency agencies via the
when the individual registers in, or moves to, the area in which
the law enforcement agency is located California sex offender
registry database and the California Law Enforcement Web (CLEW) .
Upon request, the department shall provide the complete file of
information on a sexual habitual high risk sex offender to law
enforcement agencies, district attorneys, and the courts for the
purpose of identifying, apprehending, prosecuting, and
sentencing sexual habitual high risk sex offenders.
Explanation: Conforms statute on profiling sex offenders to
current definition of high risk sex offenders and clarifies that
the Department of Justice may disseminate the profiles on high
risk sex offenders to law enforcement agencies via electronic
means.
Community Corrections Performance Incentives Act of 2009
These amendments would make a clarifying amendment to Penal Code
section 1233.1 concerning calculating the formula relevant to
this act:
1233.1. . . . (b) The statewide probation failure rate. The
statewide probation failure rate shall be calculated as the
total number of adult felony probationers statewide sent to
prison in the previous year as a percentage of the average
statewide adult felony probation population as of June 30 of
that year .
(c) A probation failure rate for each county. Each county's
probation failure rate shall be calculated as the number of
adult felony probationers sent to prison from that county in the
previous year as a percentage of the county's average adult
felony probation population as of June 30 of that year .
Explanation: The Community Corrections Performance Incentives
Act of 2009 requires among other things that the Department of
Finance calculate, in consultation with specified others, the
(More)
SB 1062 (Strickland)
PageO
state's avoided costs resulting from reduced probation
revocations, the statewide probation failure rate, and the
probation failure rate for each county. (See SB 678 (Leno),
Stats. 2009, Ch. 608.) Penal Code section 1233.1, as enacted by
SB 678, requires use of a point-in-time probation population
figure to calculate the state and county probation failure
rates. The proposed amendments would specify that the statewide
and county probation failure rates shall be based on the average
adult felony probation population, rather than the point-in-time
population.
These amendments additionally would make a purely technical
correction to Penal Code section 13821.
3. Disclosure of Financial Records
SB 239 (Pavley, Chapter 174, Statues of 2009) applies existing
procedures for the production of records in investigations
concerning fraudulent escrow and financial transactions to
mortgage fraud investigations dealing with lenders and brokers.
However, the California Right to Financial Privacy Act
Government Code Section 7460 et seq. generally restricts the
disclosure of financial records by "financial institutions," the
definition of which includes lenders. The proposed change would
make an exception in Government Code section 7480 to allow for
the dissemination of records pursuant to the procedures
described in SB 239 to clarify the Legislature's intent in
enacting SB 239.
4. Penal Code Sections Regarding Child Prostitution
This bill amends Penal Code section 266h (b)(1), which now
provides for penalties to derive income from a person engaged in
prostitution who is a minor over the age of 16 years. This bill
changes this language to 16 years of age or older .
This language clarifies the crime of pimping a minor to specify
the punishment that applies when the victim is exactly 16 years
of age. Currently, paragraph (1) of PC 266h (b) references
minors over the age of 16 years and paragraph (2) references
SB 1062 (Strickland)
PageP
minors under 16 years of age, but neither explicitly references
minors who are exactly 16 years of age.
This bill makes an identical clarification to the crime of
pandering a person who is a minor. (Penal Code 266i.)
5. Subpoenas
Penal Code section 1328d currently provides that a subpoena
served by mail or messenger is legally served when the witness
acknowledges receipt to the sender by telephone, by mail, or in
person, and provides the sender with certain identifying
information. This bill would add electronic communications to
this provision. This section was last amended in 1986.
***************