BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 324
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          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.)








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           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).  








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             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 








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            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 








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            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