BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
5
4
SB 54 (Runner)
As Amended April 12, 2011
Hearing date: April 26, 2011
Penal Code
AA:mc
SEX OFFENDERS:
RESIDENCY RESTRICTIONS
HISTORY
Source: Author
Prior Legislation: SB 1203
(G. Runner) - 2008, related provisions amended out of the bill
in this Committee; remaining provisions failed
passage in Assembly Public
Safety Committee
Proposition 83, November 2006 General Election
Support: Crime Victims United of California
Opposition:California Public Defenders Association
KEY ISSUES
SHOULD THE RESIDENCY RESTRICTION NOW APPLICABLE TO REGISTERED SEX
OFFENDERS BE MEASURED BY "THE SHORTEST PRACTICAL PEDESTRIAN OR
VEHICLE PATH"?
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SHOULD A JUDICIAL PROCESS WHEREBY REGISTERED SEX OFFENDERS COULD BE
RELIEVED OF THIS RESTRICTION BE CREATED, AS SPECIFIED, BY THIS BILL?
PURPOSE
The purpose of this bill is to make the following two changes to
the residency restrictions now applicable to registered sex
offenders: 1) provide that the residency restriction of 2,000
feet of any public or private school or park where children
regularly gather shall be measured by the shortest practical
pedestrian or vehicle path; and 2) provide a judicial process
whereby registered sex offenders could be relieved of this
restriction, as specified.
Current law generally requires persons convicted of enumerated
sex offenses to register within five working days of coming into
a city or county, with specified law enforcement officials in
the city, county or city and county where he or she is
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domiciled, as specified.<1> (Penal Code § 290.) Registration
generally must be updated annually, within five working days of
a registrant's birthday. (Penal Code § 290.012(a).) In some
instances, registration must be updated once every 30 or 90
days, as specified. (Penal Code §§ 290.011, 290.012.)
Residency Restrictions for Sex Offenders: Measuring "2,000
Feet"
Existing law provides it "is unlawful for any person for whom
registration is required pursuant to the Sex Offender
Registration Act to reside within 2,000 feet of any public or
private school, or areas of a park where children regularly
gather." (Pen. Code § 3003.5 (b).)
Existing law explicitly authorizes municipal jurisdictions to
enact local ordinances that further restrict the residency of
any person required to register as a sex offender. (Penal Code
§ 3003.5(c).)
This bill would provide that the "2,000 feet shall be measured
by the shortest practical pedestrian or vehicle path."
---------------------------
<1> Penal Code section 290(b) provides: "Every person
described in subdivision (c) for the rest of his or her life
while residing in, or, if he or she has no residence, while
located within California, or while attending school or working
in California, as described in section 290.002 and 290.01, shall
be required to register with the chief of police of the city in
which he or she is residing, or if he or she has no residence,
is located, or the sheriff of the county if he or she is
residing, or if he or she has no residence, is located, in an
unincorporated area or city that has no police department, and,
additionally, with the chief of police of a campus of the
University of California, the California State University, or
community college if he or she is residing, or if he or she has
no residence, is located upon the campus or in any of its
facilities, within five working days of coming into, or changing
his or her residence or location within, any city, county, or
city and county, or campus in which he or she temporarily
resides, or, if he or she has no residence, is located."
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This bill additionally would provide that any person subject to
the residency restriction imposed pursuant to the provisions of
this section "may, if compliance is not reasonably possible
within his or her county, seek relief," as would be provided in
this bill (see below).
This bill also would make a purely technical change to this
section.
Residency Restrictions for Sex Offenders: Process for Relief
This bill would provide a judicial process through which
registered sex offenders subject to the residency restrictions
noted above with the following features and requirements:
Applicability
This bill would provide that any registered sex offender
prohibited by current statute, as specified, from living within
2,000 feet of any public or private school, or park where
children regularly gather, "may seek relief from those
restrictions if he or she cannot comply with the restriction
because of the unavailability of compliant housing within his or
her county of domicile."
Process
This bill would provide that any person seeking relief "may file
a petition with the superior court of the county in which he or
she resides. Notice of the petition shall be timely served on
the state parole authority or other entity enforcing the subject
sex offender residency restrictions."
This bill would provide that, "(n)otwithstanding any other law,
original jurisdiction for any petition filed pursuant to this
section shall lie with the appellate division of the superior
court in which the petition is filed."
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Elements Required to Grant Relief; Standard for Review
This bill would authorize the appellate division of the superior
court in which the petition is filed to "grant the petition if
the petitioner establishes by clear and convincing evidence, and
the court finds, both of the following:
(1) There is a pervasive lack of compliant housing within
the petitioner's county of domicile.
(2) As a result of the pervasive lack of compliant housing,
a substantial percentage of sex offenders subject to the
2,000-foot residency restriction have, despite good faith
efforts, been unable to find compliant housing within the
county."
Scope of Relief Granted
This bill would provide that if relief is granted, it "shall
apply uniformly to all sex offenders for whom registration is
required . . . in all communities within the county that are
subject to the 2,000-foot residency restriction and shall
therefore be narrowly crafted in order to substantially comply
with the intent of the people in approving the residency
requirements of Section 3003.5."
Limitations on Subsequent Petitions
This bill would provide that if "relief is granted or denied . .
. , no subsequent petition shall be heard, unless the petitioner
or petitioners establish in the petition, to the satisfaction of
the court, both of the following:
(1) There has been a change of circumstances based upon a
substantial decline in the availability of compliant
housing.
(2) There has been a corresponding increase in the
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percentage of sex offenders who are unable to comply with
the residency restrictions due to the change of
circumstances described in paragraph (1) since the court
ruling on the prior petition."
2/3 Vote
Legislative Counsel's Digest for this bill states that this bill
would require a 2/3 vote because "Proposition 83 permits the
Legislature, by a vote of 2/3 of the membership of each house
and in accordance with specified procedures, to amend the
provisions of the act."
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 Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
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early as this spring.
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.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Stated Need for This Bill
The author states in her fact sheet on this bill that, "The
California Supreme Court ruled last year In Re E. J et. al.
(2/1/10) that questions regarding the availability of compliant
housing for sex offenders is best addressed at the county court
level. () SB 54 seeks to ease the compliance definition and
to create an efficient judicial review process."
2. What This Bill Would Do
As explained in detail above, this bill would make the following
two changes to the residency restrictions applicable to
registered sex offenders: 1) the bill would provide that the
residency restriction of 2,000 feet of any public or private
school, or park where children regularly gather, shall be
measured by the shortest practical pedestrian or vehicle path;
and 2) the bill would provide a judicial process whereby
registered sex offenders could be relieved of this restriction.
3. Current Litigation
A number of issues relating to the residency restrictions are
before the California Supreme Court in People v. Mosley
(S187965). Last September, the Fourth Appellate District held
that the residency restriction is punitive and therefore
registration and the residency restriction cannot be imposed
without the trier of fact making the supporting findings beyond
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a reasonable doubt. That decision was superseded by a grant of
review by the California Supreme Court in January of this year,
where the case now is pending. In March, the Court ordered the
parties in this case to brief and argue the following additional
issues relating to this case:
(1) Does Penal Code section 3003.5, subdivision (b), validly
create a misdemeanor offense subject to violation by all persons
required to register for life pursuant to Penal Code section 290
et seq., regardless of their parole status?
(2) If Penal Code section 3003.5, subdivision (b), is not
separately enforceable as a misdemeanor offense, does that
section nevertheless operate to establish the residency
restrictions contained therein as a valid condition of sex
offender registration pursuant to Penal Code section 290 et
seq.?
4. Measuring 2,000 Feet for Purposes of the Residency Restriction
In its January 2008 initial report, the California Sex Offender
Management Board noted that some of the terms in the existing
residency restrictions are not defined by the initiative, and
are not clear:
Proposition 83 added Section (b) to Penal Code Section
3003.5 which makes it unlawful for any person required
to register pursuant to Penal Code Section 290 to live
within 2,000 feet of any "public or private school, or
park where children regularly gather."
The term "park where children regularly gather" is
not defined by the initiative.
o It is unclear if this term refers to the
entire grounds of a park (sizeable portions in
which children may not routinely gather) or the
portion (such as location where a play structure
is located) where children are intended to be
present.
o It is unclear how often children need to
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be present at a park to meet the threshold of the
phrase "regularly gather."
Proposition 83 does not prescribe a method for
determining how to measure the 2,000 residency
restriction.
o It is unclear what physical point on a
site should be used to begin measurement. For
example, some localities measure from the
center-point of a property and some measure from
the border edges of the property.
o It is unclear how the 2,000 foot distance
should be measured. Should practitioners determine
the distance by roads or routes a car would
travel? Should the distance be determined using
straight lines or 'as the crow flies'?<2>
This bill would provide that the 2,000 feet "shall be measured
by the closest practical pedestrian or vehicle path." This
language would appear to provide clarity in terms of how to
identify restricted areas. This standard arguably might reduce
the reach of the existing restriction to the extent it employs
pathways and thoroughfares instead of a simple circumference
drawn around the prohibited area. For example, a residence may
be sited directly behind a fenced school campus but not be
within 2,000 feet - less than half a mile - of the school as
measured by the road or pathway.
WOULD THIS BILL ADD CLARITY TO THE APPLICATION OF CURRENT LAW,
AS ENACTED BY JESSICA'S LAW?
COULD THIS PROVISION MATERIALLY REDUCE THE SCOPE OF THE
RESIDENCY RESTRICTIONS OF JESSICA'S LAW?
WOULD THIS PROVISION IMPROVE THE PRACTICAL APPLICATION AND
ENFORCEMENT OF JESSICA'S LAW?
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<2> An Assessment of Current Management Practices of Adult Sex
Offenders in California (January 2008), California Sex Offender
Management Board, at 134-135.
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WOULD THIS PROVISION IMPROVE STATE LAW WITH RESPECT TO
MONITORING SEX OFFENDERS AND PREVENTING SEX CRIMES?
5. Background: Limiting Where Registered Sex Offenders Can Reside
The residency restrictions this bill addresses have been the
subject of much discussion since the enactment of Jessica's Law
by the voters in 2006. Last year, as the Legislature was
considering further restrictions on the movements of registered
sex offenders, the California Sex Offender Management Board
("CASOMB") urged revising the residency restrictions in
Jessica's Law:
. . . CASOMB . . . recommends the adoption of more
narrowly targeted residency restrictions. The
unintended effect of the current residence restriction
. . . has been to dramatically increase the number of
sex offenders registered as transients, which is the
most serious issue facing California today in the
field of sex offender management. CASOMB has noted
that research shows that sex offenders who live near
schools or parks do not have a greater likelihood of
reoffending. Therefore, residence restrictions should
be limited to offenders who have committed violent sex
offenses against children, sexually violent offenders,
and repeat sex offenders.<3>
The concerns about the residency restrictions of Jessica's Law
expressed by CASOMB also were underscored in a June 1, 2010,
editorial of the San Diego Union Tribune:
(The residency) requirement seems absolutely
reasonable - and deeply reassuring to any parent or
school official. But after discussions with academic
experts, public defenders and others who deal with sex
offenders, and a review of the real-word effects of
----------------------
<3>
http://www.cce.csus.edu/conferences/cdcr/casomb/docs/CASOMB%20Let
ter%20to%20Assemblyman%
20Fletcher.pdf.
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residence-restriction laws around the United States,
our view is that it is an ongoing public policy
disaster. . . .
(E)specially in more densely packed low-income
communities, the 2,000-foot rule keeps many registered
sex offenders from living with their immediate
families, relatives and loved ones or from finding
affordable housing of any kind. This makes offenders'
lives far less stable by promoting homelessness,
joblessness, hopelessness and despair - all of which
increases the likelihood of new sex crimes. . . .
In other words, California has a state law in place
that has the likely practical effect of turning some
relatively minor sex offenders into far worse and of
spurring paroled violent sex offenders into acting
again on their dark impulses. The word for this is
grotesque.
Researchers cite several other flaws in the
residence-restriction approach. One has particular
resonance for San Diegans - the seeming presumption
that sexual predators attack those very near where
they live. That certainly wasn't true of John Gardner
III in his fatal assaults on Chelsea King and Amber
Dubois. Another problem is the false sense of security
the rules promote among parents and anyone with
responsibilities for children.
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Yet many victims' rights groups - and many individuals
appalled by sex offenders - applaud when they hear of
how difficult life becomes for sex offenders because
of the residency restrictions. Those who make the
case that the rules are counterproductive face
accusations that they are coddling rapists, as
Tewskbury said in a telephone interview.
This emotional reaction may be understandable. But if
the goal is reducing violent sex crimes, it is not at
all helpful.
. . . The terrible flaw in Jessica's Law needs to be
removed in a new initiative. Otherwise, California
will continue to enforce a formal policy that makes
violent sex crimes more likely. . . .
The present policy is madness. It must change.<4>
Members may wish to discuss whether this bill would effectively
address the concerns described above.
WOULD THIS BILL BE AN EFFECTIVE SOLUTION TO THE PUBLIC SAFETY
CONCERNS RAISED ABOUT THE CURRENT RESIDENCY RESTRICTIONS FOR SEX
OFFENDERS?
6. Practical Considerations for the Relief Process Proposed by
This Bill
As described in detail above, this bill would provide a judicial
process for registered sex offenders to be relieved of the
residency requirements in current law. The key features of the
process proposed by this bill are:
To obtain relief, the registrant must establish, by
clear and convincing evidence , both of the following:
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<4> Jessica's Law's Huge Flaw, San Diego Union Tribune
Editorial Board, June 1, 2010.
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(1) A "pervasive lack of
compliant housing" in the county where the
registrant is domiciled; and
(2) As a result of the pervasive lack of compliant
housing, a substantial percentage of sex offenders
subject to the residency restriction have, despite
good faith efforts, been unable to find compliant
housing within the county.
If relief is granted, it would apply uniformly to all
registered sex offenders in the county.
If relief is granted or denied, no subsequent petition
shall be heard unless the court is satisfied that there has
been a substantial decline in available compliant housing
or an increase in the number of registered sex offenders
who cannot find compliant housing.
As members of the Committee consider the process proposed by
this bill, they and the author may wish to discuss the following
practical considerations:
How could a registered sex offender establish, by clear
and convincing evidence<5>, a "pervasive<6> lack of
compliant housing"? Is this an attainable element for
relief?
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<5> "The key element of clear and convincing evidence is that
it must establish a high probability of the existence of the
disputed fact, greater than proof by a preponderance of the
evidence." People v. Mabini (2001) 92 Cal. App. 4th 654;
"Certain facts must be proved by clear and convincing evidence,
which is a higher burden of proof. This means the party must
persuade you that it is highly probable that the fact is true. I
will tell you specifically which facts must be proved by clear
and convincing evidence." (California Civil Jury Instructions
(CACI - 201).)
<6> Merriam-Webster defines "pervasive" as "existing in or
spreading through every part of something." (http://www.merriam
-webster.com/dictionary /pervasive?show=0&t=1301863245.)
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How could a registered sex offender establish by clear
and convincing evidence that as a result of the pervasive
lack of compliant housing, a substantial percentage of sex
offenders subject to the residency restriction have,
despite good faith efforts, been unable to find compliant
housing within the county? Is this an attainable element
for relief?
Should all persons subject to the residency restriction
be constrained from future judicial relief under the
process proposed by this bill by a prior petition,
regardless of the competency of the prior petitioner's
effort? Could future petitions be obstructed by the
simplest of ineffective petitions being filed and
dismissed, or filed and denied? Could this concern be
addressed by expressly allowing for the consolidation of
petitions under this procedure?
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