BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 324
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 324 (Buchanan)
          As Amended  February 7, 2012
          2/3 vote.  Urgency
           
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          |ASSEMBLY:  |     |(April 25,      |SENATE: |31-0 |(February 17,  |
          |           |     |2011)           |        |     |2012)          |
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                     (vote not relevant)
           
           Original Committee Reference:    B.,P., & C.P.  

           SUMMARY  :  Specifies that juvenile offenders who have been 
          adjudicated for an offense requiring registration as a sex 
          offender may be committed to the California Department of 
          Corrections and Rehabilitation's Division of Juvenile Facilities 
          (DJF). 

          The Senate amendments  delete the Assembly version of this bill, 
          and instead:

          1)Stipulate the court may commit a juvenile to DJF for the 
            commitment of an offense requiring registration as a sex 
            offender, as referenced in Penal Code (PC) Section 290.008.  
            Doing so addresses the December 12, 2011, decision in In re 
            C.H. (2011) 53 Cal.4th 94, wherein the California Supreme 
            Court ruled that current law does not expressly authorize 
            commitment of a juvenile sex offender to the DJF if the 
            offender was not adjudicated for a Welfare and Institutions 
            Code (WIC) 707(b) offense (the citation generally used to 
            identify serious and violent offenses). 

          2)Stipulate that wards ineligible for DJF commitment do not 
            include wards required to register as sex offenders. 

          3)Authorize counties to contract with DJF to house wards who 
            were in DJF custody on December 12, 2011, whose commitment was 
            recalled as a result of the C.H. case. (The state's intent is 
            to not charge the counties for such arrangements.)

           As passed by the Assembly  , this bill required the Department of 
          General Services, when selecting locations for state-owned or 
          -leased buildings exceeding 10,000 square feet, to consider the 
          residential location of the workforce to be housed, and the 








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          availability of transit service.

           FISCAL EFFECT  :

          1)Foregone General Fund (GF) savings in the range of $10 million 
            per year for about two years to continue housing 65 wards 
            prohibited from DJF placement pursuant to the C.H. ruling of 
            December 12, 2011.  (The proposed budget assumes these wards 
            would be housed at DJF.)  

            Since the 65 wards who were in DJF custody as of December 12, 
            2011, are no longer      DJF-eligible, and are in various 
            stages of release to local custody and care, this bill 
            authorizes counties to contract with the state to house these 
            wards.  DJF would not charge the counties for these contracts. 
             Based on a per capita cost of $163,000 and an average of 24 
            months in DJF custody, if counties contracted with the state 
            for all 65 wards, the cost would be about $10 million per year 
            for two years.

          2)Unknown out-year annual GF costs in the range of $7 million to 
            house PC Section 290.008 wards, assuming 22 commitments per 
            year and a two-year average length-of-stay.  (This assumes the 
            budget proposal to not charge the counties $125,000 per DJF 
            commitment, as part of the January 2012 budget trigger cuts, 
            is maintained.) 

          3)Should the bill fail, there will be analogous annual 
            nonreimbursable costs to local governments to place these 
            wards in appropriate local settings/programs if DJF is not an 
            option.

          4)Unknown, likely minor, GF trial court savings to the extent 
            restoring DJF as an option for PC Section 290.008 wards 
            results in fewer adult filings for offenders who, prior to 
            C.H., would have been charged as juveniles and housed in DJF.  


          COMMENTS  :

           Rationale  .  Sponsored by the California District Attorneys 
          Association (CDAA) and the California Probation Officers 
          Association (CPOC), this bill would clarify that a juvenile 
          offender adjudicated for a specified sex offense may be 
          committed to the DJF, regardless of whether the juvenile 








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          has also been adjudicated for a current or prior offense 
          under WIC Section 707(b).  
            
           According to the author, to ensure that juvenile offenders 
          who have committed sex offenses remain eligible for DJF 
          commitment, current law must be amended to clarify the 
          intent of the Legislature in enacting juvenile justice 
          realignment in 2007.  AB 324 clarifies what most 
          stakeholders and practitioners understood to be the law 
          after juvenile realignment:  that a juvenile offender with 
          either a WIC Section 707(b) offense or a PC Section 
          290.008(c) sex offense is eligible for DJF commitment.

           Background  .  In 2007, SB 81 and SB 191 (juvenile offender 
          realignment) were enacted to restrict DJF eligibility to the 
          most serious juvenile offenders, so-called 707(b) offenders. 
          Following enactment of SB 81 and SB 191, WIC Section 731 
          specified that only 707(b) offenses were eligible for DJF 
          commitment, while WIC Section 733 specified who was ineligible 
          for DJF, including wards who have not committed a 707(b) 
          offense, "Unless the offense is a sex offense set forth in 
          subdivision (c) of Section 290.008 of the Penal Code." (PC 
          Section 290.008 references registerable sex offenses.)

          While legislative analyses of SB 81 and SB 191 clearly and 
          explicitly state the Legislature did not intend to exclude any 
          registerable sex offenders from DJF eligibility, the California 
          Supreme Court, reversing the judgment of the Court of Appeal, 
          ruled the grammatical construction of the two sections trumped 
          the contention of the Attorney General that the intent of the 
          Legislature was to include all registerable sex offenses (Penal 
          Code Section 290.008), and that as a result, only a ward who has 
          committed a 707(b) offense may be committed to the DJF.

           Sexual offenses requiring registration as a sex offender that 
          are not included in WIC Section 707(b)  include assault with 
          intent to commit a sexual offense, non-forcible rape, sodomy and 
          oral copulation, continuous sexual abuse of a child, and lewd or 
          lascivious acts with a minor.  Of the 65 juvenile offenders 
          currently housed by DJF who were committed for a non-707(b) 
          offense, 51 were committed for non-forcible lewd and lascivious 
          acts with a minor. 

           In re C.H.  involved a 13-year-old offender who admitted 
          molesting his three-year-old sister and two other siblings.  He 








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          was adjudicated under PC Section 288(a) and placed on probation. 
           After four probation violations for failure to comply with 
          program placement rules, including 90 days in juvenile hall 
          custody, the juvenile court committed C.H. to DJF and its sex 
          offender program.  C.H. appealed the juvenile court order, but 
          the Court of Appeal rejected the claim that C.H. was ineligible 
          for DJF commitment because PC Section 288(a) was not listed in 
          WIC Section 731. 

          The California Supreme Court, however, reversed the Court of 
          Appeal, stating, "The question before us, however, is one of 
          statutory construction of two provisions with a plain meaning - 
          not one of policy choice.  Our holding must be based on how 
          sections 731(a)(4) and 733((c) are written, not on our view of 
          what could or should have been enacted.  Needless to say, the 
          Legislature is free to reconsider the policy set out in the 
          current statutes if it wishes to do so."

           Status of wards affected by the C.H. decision  .  In January, the 
          Division of Juvenile Justice sent letters to presiding judges of 
          the juvenile court advising them of the C.H. decision, providing 
          them with a roster of youth committed to DJF from their 
          respective counties who may have been ineligible for DJF 
          commitment under the decision, and to request that the court 
          take appropriate action for all cases determined by the court to 
          be affected by C.H.  As of February 15, 13 wards have been 
          removed from DJF to their county of commitments.  Of the 65 
          wards currently at issue, 57 are currently over the age of 17.  
          The average age at commitment was 16.  Of 170 sex offenders 
          currently housed in DJF, 38% are subject to C.H. 

           Support  includes, CDAA, CPOC, Service Employees International 
          Union (SEIU) Local 1000 and the Peace Officers Research 
          Association of California (PORAC).

           Opposition  includes the California Public Defenders Association 
          (CPDA) and California Attorneys for Criminal Justice (CACJ), who 
          contend several of the offenses addressed by this bill should 
          not be eligible for DJF commitment. 


           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081 


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