BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          SB 1253 (Strickland)                                       3
          As Introduced February 19, 2010
          Hearing date: April 20, 2010
          Penal Code
          AA:dl

                                    SEX OFFENDERS:

                               CONDITIONS OF PROBATION  


                                       HISTORY

          Source:  Author

          Prior Legislation: SB 586 (Joint Committee for Revision of the  
          Penal Code) - Ch. 1064, Stats. 1981

          Support: California State Sheriffs' Association

          Opposition:Taxpayers for Improving Public Safety; California  
          Public Defenders Association
           


                                         KEY ISSUE
           
          SHOULD COURTS BE PROHIBITED FROM ALLOWING THE NARROW CATEGORY OF SEX  
          OFFENDERS CURRENTLY ELIGIBLE FOR PROBATION FROM BEING PLACED OR  
          RESIDING WITHIN ONE-HALF MILE OF A CHILD VICTIM'S RESIDENCE, AS  
          SPECIFIED?






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                                                       SB 1253 (Strickland)
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                                       PURPOSE

          The purpose of this bill is to prohibit the narrow category of  
          sex offenders currently eligible for probation from being placed  
          or residing, for the duration of the probation term, within  
          one-half mile of the child victim's residence, as specified.  

           Current law  generally prohibits probation for certain sex  
          crimes, as specified.  (Penal Code  1203.066.)

           Current law  authorizes an exception to this general rule and  
          allows probation to be granted in specified intrafamilial sex  
          crimes,<1> only if the following terms and conditions are met:

             1.   If the defendant is a member of the victim's household,  
               the court finds that probation is in the best interest of  
               the child victim.
             2.   The court finds that rehabilitation of the defendant is  
               feasible and that the defendant is amenable to undergoing  
               treatment, and the defendant is placed in a recognized  
               treatment program designed to deal with child molestation  
               immediately after the grant of probation or the suspension  
               of execution or imposition of sentence.
             3.   If the defendant is a member of the victim's household,  
               probation shall not be granted unless the defendant is  
               removed from the household of the victim until the court  
               determines that the best interests of the victim would be  
               served by his or her return.  While removed from the  
               household, the court shall prohibit contact by the  
               defendant with the victim, with the exception that the  
               court may permit supervised contact, upon the request of  
               the director of the court-ordered supervised treatment  
               program, and with the agreement of the victim and the  
               victim's parent or legal guardian, other than the  
               defendant.
             4.   The court finds that there is no threat of physical harm  
               to the victim if probation is granted.  (Penal Code   
             --------------------------
          <1>   The statutory provisions are Penal Code section 288 and  
          288.5, to the extent the case is eligible under the criteria set  
          forth above.



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                                                       SB 1253 (Strickland)
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               1203.066(d)(emphasis added).)<2>

           This bill  would revise (3) above to delete the authority of the  
          court to allow a defendant who is a member of the victim's  
          household to return to the household if the court determines  
          that the best interests of the victim would be served by his or  
          her return.


           This bill  would add to these provisions a requirement that the  
          court prohibit the defendant from being placed or residing, for  
          the duration of the probation term, within one-half mile of the  
          child victim's residence.
           
              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,  
          ---------------------------
          <2>    Current law  further requires the following in these  
          circumstances:  the court shall state its reasons on the record  
          for whatever sentence it imposes on the defendant; the court  
          shall order the psychiatrist or psychologist who is appointed as  
          specified to include a consideration of specified factors in  
          making his or her report to the court; the court shall order the  
          defendant to comply with all probation requirements, including  
          the requirements to attend counseling, keep all program  
          appointments, and pay program fees based upon ability to pay;  
          and no victim shall be compelled to participate in a program or  
          counseling, and no program may condition a defendant's  
          enrollment on participation by the victim.  ( Penal Code   
          1203.066(d)(2).)




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          2009, that court stated in part:

               "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  




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                                                       SB 1253 (Strickland)
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               postponed indefinitely.  The convergence of  
               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.<3>

          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 appear to aggravate the prison overcrowding  
          crisis described above.


                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:

               Current law prohibits specified defendants who are  
               convicted of lewd or lascivious acts on a child or  
               continuous sexual abuse of child from being granted  
               probation.  If the defendant is eligible for  
               probation, then probation is granted only if certain  
               terms and conditions are met.  These terms and  
               conditions do not currently prohibit the defendant  
               ----------------------
          <3>   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).




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               from living near their child victim.

               If this same defendant is convicted and granted  
               parole, current law does allow for a residence  
               restriction to be imposed.  An offender, who is found  
               to be a high risk by the Department of Corrections,  
               shall not be placed or reside within  mile of any  
               school.
                
               These children have already suffered unimaginable  
               harm, regardless of whether the offender is convicted  
               of a misdemeanor or a felony.  The children should not  
               be further traumatized and forced to live near their  
               attacker.  We should do everything possible to ensure  
               the safety of the victim and restore their sense of  
               security in the neighborhood. . . .
                
               Prohibits a defendant convicted of lewd or lascivious  
               acts on a child or continuous sexual abuse of a child  
               from being placed or residing, for the duration of the  
               probation term, within  mile of the child victim's  
               residence.

          2.  What This Bill Would Do


           As explained above, current law generally prohibits probation in  
          sex crime cases.  Current law also imposes specified residency  
          restrictions concerning where serious and violent parolees,  
          including sex offenders, can be placed in terms of proximity to  














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          a victim.<4>



          For the very narrow category of sex offenders who may receive  
          probation, this bill would require courts to prohibit the  
          defendant from being placed or residing, for the duration of the  
          probation term, within one-half mile of the child victim's  
          residence.  This proscription would include offenders who are  
          members of a victim's household.



          3.   Potential Inadvertent Consequences; Suggested Revision


           The basis for these provisions - probation eligibility for sex  
          offenders -- are recounted in People v. Groomes (1993) 14  
          Cal.App.4th 84, which quoted and paraphrased the California  
          Supreme Court in People v. Jeffers (1987) 43 Cal.3d 984:   
                
               Section 1203.066 was enacted in 1981 upon passage of  
               the Roberti- Imbrecht-Rains-Goggin Child Sexual Abuse  
               Prevention Act (Stats. 1981, ch. 1064,  1-6, pp.  
               4093-4096).  In People v. Jeffers (1987) 43 Cal.3d  
               984. . .  the Supreme Court examined and extensively  
               ----------------------
          <4> See Penal Code section 3003(f):  "Notwithstanding any other  
          provision of law, an inmate who is released on parole shall not  
          be returned to a location within 35 miles of the actual  
          residence of a victim of, or a witness to, a
          violent felony as defined in paragraphs (1) to (7), inclusive,  
          and paragraph (16) of subdivision (c) of Section 667.5 or a  
          felony in which the defendant inflicts great bodily injury on  
          any person other than an accomplice that has been charged and  
          proved . . . if the victim or witness has requested additional  
          distance in the placement of the inmate on parole, and if the  
          Board of Parole Hearings or the Department of Corrections and  
          Rehabilitation finds that there is a need to protect the life,  
          safety, or well-being of a victim or witness."




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               discussed the act's legislative history.  The court  
               referred to testimony before the Joint Committee for  
               Revision of the Penal Code (1979-1980 Reg. Sess.)  
               (hereafter Joint Committee) on the subject of child  
               sexual abuse.  The court noted that several witnesses  
               distinguished pedophile offenders from those  
               characterized as intrafamilial regressive offenders. .  
               .  .  The Joint Committee was told that attempts at  
               rehabilitating pedophile offenders had not been  
               successful, and mandatory prison terms were needed.   
               On the other hand, attempts at rehabilitating  
               regressive offenders, incestuous or intrafamily  
               offenders, had been successful.   In addition to  
               successful rehabilitation programs, there were other  
               reasons why mandatory prison terms for regressive  
               offenders are not desirable.  Witnesses and victims  
               were less likely to testify against close family  
               members or household members and risk destruction of  
               the family unit  .  As the court in Jeffers recognized: 

               "If an intrafamily molester is imprisoned there could  
               be a loss of financial support for the family, the  
               victim could be blamed by other family members, and  
               the victim's mother might abandon the victim in favor  
               of the molester.  If a prison sentence is mandatory,  
               there could also be a reluctance of prosecuting  
               authorities to file charges, knowing the consequences  
               for the family.  The authorities might prefer to treat  
               the problem as a juvenile or family law matter rather  
               than as a criminal matter, even though criminal  
               prosecution, without a mandatory prison term, would be  
               preferable. ([Hgs. on Child Molestation Legislation]  
               Hg. of Apr. 24, 1981, pp. 56-57.) Effective  
               rehabilitation is more difficult in prison because the  
               other family members cannot participate. (Id. at pp.  
               60-61.)" (People v. Jeffers, supra, 43 Cal.3d at p.  
               995, fn. omitted.)<5> 
                

               ----------------------
          <5>    People v. Groomes, supra, at 89-90 (some footnotes  
          omitted)(emphasis added).  



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          For the narrow category of sex crimes where probation is  
          permissible, in cases where the defendant is a member of the  
          victim's household probation is allowed if the court finds that  
          probation would be in the best interest of the child victim.   
          Current law further provides that if the defendant is a member  
          of the victim's household, probation shall not be granted unless  
          the defendant is removed from the household of the victim until  
          the court determines that the best interests of the victim would  
          be served by his or her return.   


































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          As currently drafted, this bill would repeal the authority of a  
          court to allow a defendant who is a member of the victim's  
          household to move back into the household if the court finds his  
          or her return would be in the best interest of the child.  This  
          change links to the bill's principal goal of prohibiting sex  
          offender probationers from living within one-half mile of the  
          child victim's residence during the term of the probation.   
          These provisions would apply this residency restriction on any  
          offender subject to these provisions, regardless of the  
          individual circumstances of a case or requirements of a victim.   


          As explained in the background materials provided by the  
          author's office and supporters like the California State  
          Sheriffs' Association, this bill is intended to protected  
          children "who have already experienced unimaginable hardships .  
          . . ."  In light of the historical purposes for current law,  
          members may wish to discuss whether as drafted this bill may  
          inadvertently discourage the reporting of intra-familial  
          molestation.   Members also may wish to consider whether there  
          may be instances where this residency restriction might not be  
          in the best interests of a child.  For example, there may be  
          cases of intra-familial abuse where the court determines a  
          return to the home would be in the best interests of the child,  
          or cases where the defendant is a relative who lives nearby and  
          limiting his or her residence would be adverse to the best  
          interests of the victim.  

          Recasting the provisions of this bill to require the imposition  
          of this condition unless the court finds, on the record, that  
          the residency restriction would not be in the best interest of  
          the child may fulfill the purposes of this bill without risking  
          these or other unintended consequences.  Specifically, the  
          author and/or the Committee may wish to consider refining this  
          bill as follows:


               (C) If the defendant is a member of the victim's  
               household, probation shall not be granted unless the  




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               defendant is removed from the household of the  victim  
               until the court determines that the best interests of  
               the victim would be served by his or her return.     
                victim  .  While removed from the household, the court  
               shall prohibit contact by the defendant with the  
               victim, with the exception that the court may permit  
               supervised contact, upon the request of the director  
               of the court-ordered supervised treatment program, and  
               with the agreement of the victim and the victim's  
               parent or legal guardian, other than the defendant.  



               (D  ) If the defendant is not a member of the victim's  
               household  ,  the court shall prohibit the defendant from  
               being placed or residing within one-half mile of the  
               child victim's residence for the duration of the  
               probation term unless the court, on the record, states  
               its reasons for finding that this residency  
               restriction would not serve the best interest of the  
               victim.    The court prohibits the defendant from being  
               placed or residing, for the duration of the probation  
               term, within one-half mile of the child victim's  
               residence.
           


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