BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 886 (Cook)                                               
          As Introduced February 17, 2011
          Hearing date:  June 14, 2011
          Penal Code
          MK:mc

                                   VICTIM'S RIGHTS: 

                               VICTIM IMPACT STATEMENT  


                                       HISTORY

          Source:  More Kids

          Prior Legislation: None

          Support: California State Sheriffs' Association; Crime Victims 
                   United of California; California Catholic Conference, 
                   Inc.; California Peace Officers' Association; 
                   California Narcotic Officers' Association; California 
                   Police Chiefs Association

          Opposition:None known

          Assembly Floor Vote:  Ayes 73 - Noes 0



                                         KEY ISSUE
           
          SHOULD THE LAW PROHIBIT A COURT FROM RELEASING STATEMENTS FROM A     
           CRIME VICTIM TO THE PUBLIC PRIOR TO THE STATEMENT BEING HEARD IN 




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                                                              AB 886 (Cook)
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          COURT?


                                       PURPOSE

          The purpose of this bill is to prohibit a court from releasing 
          statements from a crime victim to the public prior to the 
          statement being heard in court.
          
           Existing law  provides that it is the right of a crime victim, as 
          specified, to be notified of all sentencing proceedings, and of 
          the right to appear, to reasonably express his or her views, 
          have those views preserved by audio or video means, as 
          specified, and to have the court consider his or her statements, 
          as specified.  (Penal Code  679.02(a)(3).)

           Existing law  states that it is the right of a crime victim, as 
          specified, to be notified of all juvenile disposition hearings 
          in which the alleged act would have been a felony if committed 
          by an adult, and of the right to attend and to express his or 
          her views, as specified.  (Penal Code  679.02(a)(4).) 

           Existing law  declares that a victim of any crime, as specified, 
          has the right to attend all sentencing proceedings under this 
          chapter and shall be given adequate notice by the probation 
          officer of all sentencing proceedings concerning the person who 
          committed the crime.  Existing law further provides that the 
          victim, as specified, has the right to appear, personally or by 
          counsel, at the sentencing proceeding and to reasonably express 
          his, her, or their views concerning the crime, the person 
          responsible and the need for restitution and states that the 
          court in imposing sentence shall consider the statements of 
          victims, parents or guardians, and next of kin made pursuant to 
          this section and shall state on the record its conclusion 
          concerning whether the person would pose a threat to public 
          safety, if granted probation.  (Penal Code  1191.1.)

           This bill  prohibits the court from releasing victim or witness 
          statements prior to the statements being heard in court.




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                                                              AB 886 (Cook)
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                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  
            
          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     







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           This bill  does not appear to aggravate the prison overcrowding 
          crisis described above.


                                      COMMENTS

          1.    Need for This Bill  

          According to the author:

              Under current California law, a victim must submit a 
              victim impact statement in writing to the court before 
              sentencing.  This allows the court to review the 
              statement to ensure that it complies with state law.  It 
              also allows defendants the chance to review the 
              statement in accordance with their right to refute 
              materials used against them at trial.

              When the victim impact statement is submitted in writing 
              to the court, it becomes a public document.  This means 
              that the media is able to request and gain access to it. 
              This has led to situations where the victim impact 
              statement ends up being published in the newspaper 
              before the victim has the opportunity to read it in 
              court.  This can diminish the power of the statement 
              when read in court, which undermines the rights of the 
              victim.

              This bill would change the California Public Records Law 
              to prevent the release of a victim impact statement to 
              the public before it is read in court.  This change 
              would prevent the release of victim impact statements to 
              the public before they are read in court, while still 
              guaranteeing the court's right to review the statement 
              in advance. This will not infringe upon the defendant's 
              right to have access to materials used against them in 
              court.

          2.    Victim Impact Statements at Sentencing  




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          A sentencing court may consider "the testimony of witnesses 
          examined in open court" (Penal Code  1204) and any facts 
          supplied by the trial record.  The victim of the crime, the 
          parents or guardians of the victim if the victim is a minor, or 
          the next of kin of the victim if the victim has died have the 
          right to be notified of the sentencing hearing and to appear and 
          be heard concerning the crime, the defendant and the need for 
          restitution.  (Penal Code  1191.1.)  The court must consider 
          these statements when imposing sentence.  (Penal Code  1191.1.) 
           Statements can be made in writing or on a recording medium 
          accepted by the court.  Victims who give statements at 
          sentencing do not need to take an oath, are not subject to 
          cross-examination and are permitted to relate hearsay 
          information.  (People v. Birmingham (1990) 217 Cal.App.3d 180, 
          184.)

          When the victim submits a letter to the court, instead of 
          testifying, due process requires that the defendant be permitted 
          to read the letter in advance and respond to that letter at the 
          sentencing hearing.  (People v. Mockel (1990) 226 Cal.App.3d 
          581, 587; See generally Penal Code  1191.1 to 1191.3; See also 
          Penal Code  1204 (testimony in aggravation or mitigation must 
          usually be in person).)

          3.   Prohibits Early Release of the Victim Statement  

          This bill would prohibit the release of the victim impact 
          statement prior to the statement being heard in court.  It does 
          not change the release of such written statement to the 
          defendant.


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