BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1253
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          Date of Hearing:   June 15, 2010
          Counsel:               Nicole J. Hanson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  SB 1253 (Strickland) - As Amended:  April 27, 2010


           SUMMARY  :   Prohibits a person convicted of lewd or lascivious  
          acts upon or with the body of a child, or of continuous sexual  
          abuse of a child, from being placed or residing within one-half  
          mile of the child victim's residence for the duration of his or  
          her 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.

           EXISTING LAW :

          1)Provides that probation shall not be granted to, nor shall the  
            execution or imposition of sentence be suspended for, any of  
            the following persons [Penal Code Section 1203.066(a)]:

             a)   A person who is convicted of violating Penal Code  
               Section 288 (lewd or lascivious act) or 288.5 (continuous  
               sexual abuse of a child) when the act is committed by the  
               use of force, violence, duress, menace, or fear of  
               immediate and unlawful bodily injury on the victim or  
               another person.

             b)   A person who caused bodily injury on the child victim in  
               committing a violation of Penal Code Section 288 or 288.5.

             c)   A person who is convicted of a violation of Penal Code  
               Section 288 or 288.5 and who was a stranger to the child  
               victim or befriended the child victim for the purpose of  
               committing an act in violation of Penal Code Section 288 or  
               288.5, unless the defendant honestly and reasonably  
               believed the victim was 14 years of age or older.

             d)   A person who used a weapon during the commission of a  
               violation of Penal Code Section 288 or 288.5.

             e)   A person who is convicted of committing a violation of  








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               Section 288 or 288.5 and who has been previously convicted  
               of a violation of rape, rape of a spouse, rape or  
               penetration of genital or anal openings by a foreign  
               object, inveiglement or enticement of an unmarried female  
               under 18 for purposes of prostitution, unlawful sexual  
               intercourse when consent is procured by false or fraudulent  
               representation with intent to create fear, abduction of a  
               person under 18 for the purpose of prostitution, incest,  
               sodomy, lewd or lascivious act, continuous sexual abuse of  
               a child, oral copulation, or forcible acts of sexual  
               penetration, or of assaulting another person with intent to  
               commit a crime with the intent to commit mayhem, rape,  
               sodomy, oral copulation, or who has been previously  
               convicted in another state of an offense which, if  
               committed or attempted in this state, would constitute an  
               offense enumerated in this paragraph.

             f)   A person who violated Penal Code Section 288 or 288.5  
               while kidnapping the child victim.

             g)   A person who is convicted of committing a violation of  
               Penal Code Section 288 or 288.5 against more than one  
               victim.

             h)   A person who, in violating Penal Code Section 288 or  
               288.5, has substantial sexual conduct with a victim who is  
               under 14 years of age.

             i)   A person who, in violating Penal Code Section 288 or  
               288.5, used obscene matter, or matter depicting sexual  
               conduct.

          2)States that if a person is convicted of a violation of Penal  
            Code Section 288 or 288.5, and the factors listed in the  
            aforementioned subdivision (a) are not pled or proven,  
            probation may be granted only if the following terms and  
            conditions are met [Penal Code Section 1203.066(d)]:

             a)   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.

             b)   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  








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               treatment program designed to deal with child molestation  
               immediately after the grant of probation or the suspension  
               of execution or imposition of sentence.

             c)   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.

             d)   The court finds that there is no threat of physical harm  
               to the victim if probation is granted.

          3)Mandates 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 or a felony in which the  
            defendant inflicts great bodily injury on any person other  
            than an accomplice that has been charged and, 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 (CDCR) finds  
            that there is a need to protect the life, safety, or  
            well-being of a victim or witness.  [Penal Code Section  
            3003(f).]

          4)Requires an inmate who is released on parole for a violation  
            of Penal Code Section 288 or 288.5 whom the CDCR determines  
            poses a high risk to the public shall not be placed or reside,  
            for the duration of his or her parole, within one-half mile of  
            any public or private school including any or all of  
            Kindergarten and Grades 1 to 12, inclusive.  [Penal Code  
            Section 3003(g).]

          5)Requires any inmate convicted of a felony registerable sex  
            offense and who is committed to prison and released on parole  
            shall be monitored by global positioning system for the term  
            of his or her parole.  [Penal Code Section 3000.07(a).]








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          6)States that any person who commits lewd and lascivious acts  
            upon the body, or any part thereof, of a child under the age  
            of 14 years, with the intent of arousing, appealing to, or  
            gratifying the lust, passions, or sexual desires of that  
            person or the child is punishable by imprisonment in the state  
            prison for three, six or eight years.  [Penal Code Section  
            288(a).]

          7)Defines "continuous sexual abuse of a child" as three or more  
            acts of substantial sexual conduct with a child under the age  
            of 14 years, or three or more acts of lewd and lascivious  
            conduct with a child under the age of 14 years, over a period  
            of not less than three months in duration.  Continuous sexual  
            abuse of a child is punishable by imprisonment in the state  
            prison for 6, 12, or 16 years.  [Penal Code Section 288.5(a).]

          8)Provides for the "one-strike" sex crime sentencing law that  
            provides sentences of 15-years or 25-years-to-life in certain  
            sex crimes if specified circumstances in aggravation are found  
            to be true.  (Penal Code Section 667.61.)

          9)Specifies that the qualifying sex crimes under the one-strike  
            sex law are punishable by imprisonment in the state prison for  
            life, and the defendant shall not be eligible for release on  
            parole for 15 years or 25 years, as specified.  These crimes  
            are forcible rape, forcible spousal rape, rape by a foreign  
            object, forcible sodomy, forcible oral copulation, lewd and  
            lascivious acts with a child under the age of 14 accomplished  
            by force or duress, and lewd and lascivious acts with a child  
            under the age of 14 accomplished by other than force or duress  
            where the defendant is not eligible for probation.  [Penal  
            Code Section 667.61(a) and (c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author of this bill,  
            "Child or continuous sexual abuse of a 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 from living near their child  
            victim.








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            "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 CDCR,  
            shall not be placed or reside within one-half mile of any  
            school.

            "These children have 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."

           2)Background  :  According to information provided by the author,  
            "Current law prohibits specified defendants who are convicted  
            of lewd or lascivious acts on a child or continuous sexual  
            abuse of a 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 from living  
            near their child victim."

           3)Is this Bill Necessary  ?  Under Penal Code Section 1203.066, a  
            prison sentence is presumed to be the correct sentence.  Penal  
            Code Section 1203.066 states that, notwithstanding any other  
            provision of law, "probation shall not be granted to, nor  
            shall the execution or imposition of sentence be suspended for  
            [specified child sexual offenders.]"  Thus, a grant of  
            probation must be consistent with that presumption.  A 1993  
            case held that prison is presumed to be the correct sentence  
            for lewd conduct regardless of the probation provisions in  
            Penal Code Section 1203.066(c):  "[T]he Legislature has  
            declared that imprisonment is the normal sentence if a  
            defendant has engaged in substantial sexual conduct with a  
            child under the age of 14 years . . .  Only when a defendant  
            can establish he or she meets all the criteria of . . .  
            Section 1203.066[(c)] can probation be ordered.  This court  
            has previously held that a defendant has the burden to present  
            evidence showing that he is entitled to consideration for  
            probation under subdivision (c) of Section 1203.066."  [People  
            v. Groomes (1993) 14 Cal.App.4th 84, 89.]

          Further, the "one-strike" law enacted in September 1994  
            increased the length of the prison terms to which sex  








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            offenders will be sentenced by adding a new section to the  
            California Penal Code and amending two other sections. (See  
            Penal Code Sections 667.61, 667.71 and 1203.066.)   
            Specifically, the one-strike law mandates that a person  
            convicted of a sex offense listed in Penal Code Section  
            667.61(c) will be sentenced under certain circumstances to  
            life in prison without the possibility of parole (LWOP) for 25  
            years and includes lewd and lascivious acts with a child under  
            14 years of age.  A person convicted of a sex offense under  
            other circumstances will be sentenced to LWOP for 15 years.   
            The law further denies the convicted offender the possibility  
            of probation or the suspension of his or her sentence if the  
            offense is one of the first six offenses enumerated in Penal  
            Code Section 667.61(c).  For a first-time sex offender, the  
            opportunity for parole is expressly prohibited until the  
            offender has served at least 85% of the minimum prison term.   
            [Penal Code Section 667.61(j).]

              a)   Restrictions on Paroled Sex Offenders  :  As outlined  
               above, Penal Code Section 1203.066, subdivision (d), leaves  
               a very few circumstances where a defendant would be granted  
               probation.  Thus, the majority of offenders will be given  
               prison time.  If and when such an offender is paroled,  
               there are multiple provisions under current law that  
               protect minor victims of sex crimes.  

             On November 8, 2006, California voters passed Proposition 83,  
               "The Sexual Predator Punishment and Control Act:  Jessica's  
               Law".  Proposition 83 requires any inmate convicted of a  
               felony registerable sex offense and committed to prison and  
               released on parole to be monitored by global positioning  
               system (GPS) for the term of his or her parole.  [Pen. Code  
               Section 3000.07(a).]  Essentially, GPS monitoring provides  
               information to probation and parole officials about the  
               whereabouts of sex offenders.  Theoretically, monitoring  
               prohibits sex offenders from certain areas (e.g., schools,  
               day care centers, etc.) by making those areas exclusion  
               zones.  Entrance into these exclusion zones can result in a  
               violation of an offender's parole status.

             At present, Penal Code Section 3003(f) also states "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 or a felony in  
               which the defendant inflicts great bodily injury on any  








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               person other than an accomplice that has been charged and,  
               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 CDCR finds that there is a need to  
               protect the life, safety, or well-being of a victim or  
               witness." 

             Lastly, Penal Code Section 3003(g) states "an inmate who is  
               released on parole for a violation of lewd and lascivious  
               acts with a child, or continuous sexual abuse of a child,  
               whom the CDCR has determined poses a high risk to the  
               public shall not be placed or reside, for the duration of  
               his or her parole, within one-half mile of any public or  
               private school including any or all of Kindergarten and  
               Grades 1 through 12, inclusive."  [Penal Code Section  
               3003(g).]

              b)   Restrictions on Paroled Sex Offenders and Sex Offenders  
               Granted Probation  :  In 2006, under "Jessica's Law,"  
               California prohibited any registerable sex offender from  
               residing within 2,000 feet of any public or private school,  
               or park where children regularly gather regardless of  
               whether or not his or her underlying crime involved a minor  
               victim.  [Penal Code Section 3003.5(b).]  Municipal  
               jurisdictions were also afforded the ability to adopt any  
               additional local ordinances which further restrict the  
               residency of any person for whom registration as a sex  
               offender is required.  [Penal Code Section 3003.5(c).]   
               Current law also allows information about certain sex  
               offenders to be made available to the public via the  
               Internet and includes the name, known aliases, a  
               photograph, a physical description, date of birth, and the  
               address at which the person resides for specified sex  
               offenses.  [Penal Code Section 290.46(b).]

              c)   Is an Additional One-Half Mile Restriction a Reasonable  
               Means to an End  :  Current sex offender restrictions affect  
               one's residence, employment, family, and even freedom if he  
               or she fails to register accordingly.  Understanding the  
               costs and benefits of a law is crucial to determining its  
               rationality.  The benefits of residency restrictions are  
               two-fold.  At one level, communities benefit from knowing  
               that they do not have sex offenders living in specified  
               areas.  This provides security.  Theoretically, the second  
               benefit of residency laws would be that they prevent some  








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               sex offenses from occurring.  However, empirical evidence  
               demonstrates that these laws do not prevent a majority of  
               sex crimes.  "Ninety percent of child victims know their  
               offender, with almost half of the offenders being a family  
               member.  Of sexual assaults against people age 12 and up,  
               approximately 80% of the victims know the offender."   
               [Office of the Attorney General, Facts About Sex Offenders  
                (as  
               Jan. 7, 2010).]  These findings not only undermine the  
               stated purpose of residency restrictions, but also render  
               false the sense of security.

             The perceived "benefits" of residency restrictions come with  
               monetary, psychological, and ethical costs.  [See Levenson  
               (2005) Sex Offender Residence Restrictions:  A Report to  
               the Florida Legislature.]  The obvious costs include those  
               associated with identifying, monitoring, arresting,  
               prosecuting, and imprisoning sex offenders who violate  
               broad residency laws.  There are also other less obvious  
               social costs.  Perhaps the most compelling of these costs  
               is that police resources will be spread thin by voluminous  
               monitoring obligations, leaving fewer resources.  Other  
               costs include a potential loss of labor from sex  
               registrants unable to obtain jobs upon disclosing their  
               status as registrants.  Additionally, communities incur  
               other subtle costs by disenfranchising a substantial sector  
               of their population.  Feelings of disenfranchisement,  
               rejection, hatred, and neglect negatively affect the mental  
               states of those individuals forced to live on the fringes  
               of society.  [See Pinard & Thompson, Offender Reentry and  
               the Collateral Consequences of Criminal Convictions:  An  
               Introduction (2006) 30 N.Y.U. Rev. L. & Soc. Change 585.]   
               This large-scale rejection often causes the sex offender to  
               harbor reciprocal feelings towards society, sometimes to  
               the point where the offender's feelings of civic  
               responsibility - including the duty to follow laws -  
               dissipate.  (Ibid.)  When people are denied the rights of  
               citizens, some may feel like they have proportionally fewer  
               duties of citizenship.  (Ibid.)  As sex offenders are  
               forced farther and farther from densely populated areas and  
               required to find housing from an increasingly small number  
               of options that comply with residency restrictions, they  
               are more likely to become homeless and transient.   
               Homelessness and transience increase the risks of  
               psychological and treatment problems and the costs of  








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               monitoring and tracking the sex offenders.  (Ibid.)

             According to the California Sex Offender Management Board  
               (SOMB) January 2009 report:

             "The vast majority evidence and research conducted to date  
               does not demonstrate a connection between where an offender  
               lives and recidivism.  Since the expansion of residency  
               restrictions in California in 2006, the availability of  
               suitable housing for sex offenders has plummeted.  As a  
               result, the number of sex offenders registering transient  
               has dramatically increased.  The body of literature and  
               research to date indicates that a lack of stable and  
               appropriate housing can contribute to recidivism."  [SOMB,  
               Progress Report (Jan. 2009) p. 8  
                (as of Feb. 19, 2010).]

             Given the current residency restrictions and information  
               available via the Internet concerning registered sex  
               offenders it is questionable whether another one-half mile  
               restriction is necessary.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California State Sheriffs' Association
          San Bernardino County Sheriff's Department
          One private individual
           
            Opposition 
           
          California Public Defenders Association
          Taxpayers for Improving Public Safety


           Analysis Prepared by  :    Nicole J. Hanson / PUB. S. / (916)  
          319-3744