BILL ANALYSIS Ó AB 324 Page 1 Date of Hearing: February 21, 2012 ASSEMBLY COMMITTEE ON APPROPRIATIONS Felipe Fuentes, Chair AB 324 (Buchanan) - As Amended: February 7, 2012 Policy Committee: Not ApplicableVote: Urgency: Yes State Mandated Local Program: No Reimbursable: SUMMARY 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 availability of transit service. As passed by the Senate (31-0), this bill specifies that juvenile offenders who have been adjudicated for an offense requiring registration as a sex offender may be committed to the CA Department of Corrections and Rehabilitation's Division of Juvenile Facilities (DJF). Specifically this bill: 1)Stipulates 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., 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)Stipulates that wards ineligible for DJF commitment do not include wards required to register as sex offenders. 3)Authorizes counties to contract with DJF to house wards who were in DJF custody on Dec. 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.) AB 324 Page 2 FISCAL EFFECT 1)Foregone 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 Dec. 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 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 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 1)Rationale . Sponsored by the CA District Attorneys Association (CDAA) and the CA 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 has also been adjudicated for a current or prior offense under WIC section 707(b). AB 324 Page 3 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. 2)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 731 specified that only 707(b) offenses were eligible for DJF commitment, while WIC 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 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 CA 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 290.008), and that as a result, only a ward who has committed a 707(b) offense may be committed to the DJF. 3)Sexual offenses requiring registration as a sex offender that are not included in WIC 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. 4)In re C.H. involved a 13-year-old offender who admitted molesting his three-year-old sister and two other siblings. He was adjudicated under PC 288(a) and placed on probation. After AB 324 Page 4 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 288(a) was not listed in WIC 731. The CA 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." 5)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. 6)Support includes, CDAA, CPOC, SEIU Local 1000 and the Peace Officers Research Association of California (PORAC). 7)Opposition includes the CA Public Defenders Association (CPDA) and CA Attorneys for Criminal Justice (CACJ), who contend several of the offenses addressed by this bill should not be eligible for DJF commitment. According to CPDA, "We contend that there are two categories of offenses, which are included in the list of 290.008 registrable offenses which should not subject a juvenile to commitment at DJF. The first is Penal Code section 647.6, a misdemeanor which prohibits annoying or molesting a person under 18. The second is Penal Code section 288(a) which most often involves minor touching between either siblings, or intermarital families, or relatives. Violations of Penal Code section 288(a) can occur based on hugging, if the intent is to arouse that person or child and includes AB 324 Page 5 touching over clothing. It is important to note that there is no force involved in 288(a) offenses, for similar actions involving force are charged as violating Penal Code section 288(b)(1). There are myriad emotional, psychological, and behavioral distinctions between juveniles with sexual behavior problems and adult sex offenders. Accordingly, vastly different treatment is recommended and proves successful for juvenile offenders, who, it should be noted, are much less likely to reoffend than adult offenders. Specifically, evidence has shown that community based treatment is far more successful for juvenile offenders than institutional treatment (such as they would receive at DJF)." Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081