BILL ANALYSIS                                                                                                                                                                                                    Ó




                                                                           


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

                                                                     1
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          SB 1264 (Vargas)                                           4
          As Introduced  February 23, 2012 
          Hearing date: April 17, 2012
          Penal and Welfare and Institutions Codes
          AA:dl

                      MANDATED CHILD ABUSE AND NEGLECT REPORTERS:

                              COLLEGE ATHLETIC COACHES  



                                       HISTORY

          Source:  Author

          Prior Legislation: None

          Support: The Child Abuse Prevention Center; Crime Victims United 
                   of California; American Academy of Pediatrics, 
                   California; California State Sheriffs' Association; 
                   California Probation, Parole, and Correctional 
                   Association

          Opposition:Legal Services for Prisoners with Children
           


                                        KEY ISSUES
           
          SHOULD ANY "ATHLETIC COACH, INCLUDING, BUT NOT LIMITED TO, AN 
          ASSISTANT COACH OR A GRADUATE ASSISTANT INVOLVED IN COACHING, AT 
          PUBLIC OR PRIVATE POSTSECONDARY INSTITUTIONS," BE A MANDATED CHILD 




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          ABUSE AND NEGLECT REPORTER?

          SHOULD PENALTIES RELATING TO FAILURE TO REPORT BE RAISED, INCLUDING 
          FINE INCREASES AND MAKING AN EXISTING MISDEMEANOR A FELONY 
          PUNISHABLE BY STATE PRISON?  


                                          
                                       PURPOSE

          The purpose of this bill is to add any "athletic coach, 
          including, but not limited to, an assistant coach or a graduate 
          assistant involved in coaching, at public or private 
          postsecondary institutions," as a mandated child abuse and 
          neglect reporter, and to raise penalties relating to failure to 
          report, including fine increases and making an existing 
          misdemeanor a felony punishable by state prison.  

           Current law  generally requires any person who reasonably 
          believes that he or she has observed the commission of a murder, 
          rape or forcible molestation against a child under the age of 14 
          years to notify a peace officer, as specified.  These provisions 
          do not apply to a person who is related to either the victim or 
          the offender, including a husband, wife, parent, child, brother, 
          sister, grandparent, grandchild, or other person related by 
          consanguinity or affinity; a person who fails to report based on 
          a reasonable mistake of fact; or a person who fails to report 
          based on a reasonable fear for his or her own safety or for the 
          safety of his or her family.  Violation of this provision is a 
          misdemeanor punishable by a fine of not more than $1,500, by 
          imprisonment in jail for not more than six months, or by both 
          that fine and imprisonment.  (Penal Code § 152.3.)
              
          Current law  establishes the Child Abuse and Neglect Reporting 
          Act ("CANRA"), which generally is intended to protect children 
          from abuse and neglect.  (Penal Code § 11164.)

           Current law  requires "mandated reporters" to make reports of 
          suspected child abuse or neglect, as specified.  (Penal Code § 
          11165.9.)




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           Under current law  the term "child abuse or neglect" for purposes 
          of CANRA "includes physical injury inflicted by other than 
          accidental means upon a child by another person, sexual abuse as 
          defined . . . , neglect as defined . . . , the willful harming 
          or injuring of a child or the endangering of the person or 
          health of a child, as defined . . . , and unlawful corporal 
          punishment or injury as defined . . . .  'Child abuse or 
          neglect' does not include a mutual affray between minors.  
          'Child abuse or neglect' does not include an injury caused by 
          reasonable and necessary force used by a peace officer acting 
          within the course and scope of his or her employment as a peace 
          officer."  (Penal Code § 11165.6.)

           Current law  provides that, except as specified, "a mandated 
          reporter shall make a report  . . . whenever the mandated 
          reporter, in his or her professional capacity or within the 
          scope of his or her employment, has knowledge of or observes a 
          child whom the mandated reporter knows or reasonably suspects 
          has been the victim of child abuse or neglect."  (Penal Code § 
          11166(a).)

           Current law  enumerates 40 categories of persons who are mandated 





















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          child abuse and neglect reporters. <1>   (Penal Code § 11165.7 
          (a).)  Except as specified, current law provides that 
          "volunteers of public or private organizations whose duties 
          require direct contact with and supervision of children are not 
          mandated reporters . . . ."  (Penal Code § 11165.7(b).)

           This bill  would make "(a)ny athletic coach, including, but not 
          limited to, an assistant coach or a graduate assistant involved 
          in coaching, at public or private postsecondary institutions," a 
          mandated child abuse and neglect reporter under these 
          provisions.
           
          Current law  provides that any mandated reporter who fails to 
          report an incident of known or reasonably suspected child abuse 
          or neglect as required by this section is guilty of a 
          ---------------------------
          <1>  Mandatory child abuse and neglect reporters under Penal 
          Code Section 11165.7:  (1) A teacher.  (2) An instructional 
          aide.  (3) A teacher's aide or teacher's assistant employed by 
          any public or private school.  (4) A classified employee of any 
          public school.  (5) An administrative officer or supervisor of 
          child welfare and attendance, or a certificated pupil personnel 
          employee of any public or private school.  (6) An administrator 
          of a public or private day camp.  (7) An administrator or 
          employee of a public or private youth center, youth recreation 
          program, or youth organization.  (8) An administrator or 
          employee of a public or private organization whose duties 
          require direct contact and supervision of children.  (9) Any 
          employee of a county office of education or the California 
          Department of Education, whose duties bring the employee into 
          contact with children on a regular basis.  (10) A licensee, an 
          administrator, or an employee of a licensed community care or 
          child day care facility.  (11) A Head Start program teacher.  
          (12) A licensing worker or licensing evaluator employed by a 
          licensing agency as specified.  (13) A public assistance worker. 
           (14) An employee of a child care institution, including, but 
          not limited to, foster parents, group home personnel, and 
          personnel of residential care facilities.  (15) A social worker, 
          probation officer, or parole officer.  (16) An employee of a 
          school district police or security department.  (17) Any person 
          who is an administrator or presenter of, or a counselor in, a 
          child abuse prevention program in any public or private school.  
          (18) A district attorney investigator, inspector, or local child 
          support agency caseworker unless the investigator, inspector, or 
          caseworker is working with an attorney appointed pursuant to 
          Section 317 of the Welfare and Institutions Code to represent a 
          minor.  (19) A peace officer, as specified.  (20) A firefighter, 
          except for volunteer firefighters.  (21) A physician, surgeon, 
          psychiatrist, psychologist, dentist, resident, intern, 
          podiatrist, chiropractor, licensed nurse, dental hygienist, 
          optometrist, marriage, family and child counselor, clinical 
          social worker, or any other person who is currently licensed 
          under Division 2of the Business and Professions Code.  (22) Any 
          emergency medical technician I or II, paramedic, or other person 
          certified pursuant to Division 2.5 of the Health and Safety 
          Code.  (23) A psychological assistant, as specified.  (24) A 
          marriage, family, and child therapist trainee, as specified.  
          (25) An unlicensed marriage, family, and child therapist intern, 
          as specified.  (26) A state or county public health employee who 
          treats a minor for venereal disease or any other condition.  
          (27) A coroner.  (28) A medical examiner, or any other person 
          who performs autopsies.  (29) A commercial film and photographic 
          print processor, as specified.  As used in this article, 
          "commercial film and photographic print processor" means any 
          person who develops exposed photographic film into negatives, 
          slides, or prints, or who makes prints from negatives or slides, 
          for compensation.  The term includes any employee of such a 
          person; it does not include a person who develops film or makes 
          prints for a public agency.  (30) A child visitation monitor, as 
          specified.  (31) An animal control officer or humane society 
          officer, as specified.  (32) A clergy member, as specified.  
          (33) Any custodian of records of a clergy member, as specified.  
          (34) Any employee of any police department, county sheriff's 
          department, county probation department, or county welfare 
          department.  (35) An employee or volunteer of a Court Appointed 
          Special Advocate program, as specified.  (36) A custodial 
          officer, as specified.  (37) Any person providing services to a 
          minor child under Section 12300 or 12300.1 of the Welfare and 
          Institutions Code. (38) An alcohol and drug counselor, as 
          specified.  (39)  A clinical counselor trainee, as specified.  
          (40)  A clinical counselor intern, as specified.



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          misdemeanor punishable by up to six months confinement in a 
          county jail or by a fine of $1000 or by both that imprisonment 
          and fine, as specified.  (Penal Code § 11166 (c).)

           This bill  would increase this penalty by raising the county jail 
          time to up to 12 months, and by raising the fine from $1000 to 
          $5,000.
           
          Current law  provides that any mandated reporter who willfully 
          fails to report abuse or neglect, or any person who impedes or 
          inhibits a report of abuse or neglect where that abuse or 
          neglect results in death or great bodily injury, shall be 
          punished by not more than one year in a county jail, by a fine 
          of not more than $5000, or by both that fine and imprisonment. 
           (Penal Code § 11166.01 (b).)

           This bill  would increase this penalty by making it a felony of 
          one-to-five years in state prison, a fine of not more than 
          $25,000, or by both that fine and imprisonment.
           
          This  bill makes additional non-substantive technical amendments 
          to conform specified sections to the proposed changes described 
          above.
                                          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                      ("ROCA")
          
          In response to the unresolved prison capacity crisis, since 
          early 2007 it has been the policy of the chair of the Senate 
          Committee on Public Safety and the Senate President pro Tem to 
          hold legislative proposals which could further aggravate prison 
          overcrowding through new or expanded felony prosecutions.  Under 
          the resulting policy known as "ROCA" (which stands for 
          "Receivership/Overcrowding Crisis Aggravation"), the Committee 
          has held measures which create a new felony, expand the scope or 
          penalty of an existing felony, or otherwise increase the 
          application of a felony in a manner which could exacerbate the 
          prison overcrowding crisis by expanding the availability or 
          length of prison terms (such as extending the statute of 
          limitations for felonies or constricting statutory parole 




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          standards).  In addition, proposed expansions to the 
          classification of felonies enacted last year by AB 109 (the 2011 
          Public Safety Realignment) which may be punishable in jail and 
          not prison (Penal Code section 1170(h)) would be subject to ROCA 
          because an offender's criminal record could make the offender 
          ineligible for jail and therefore subject to state prison.  
          Under these principles, ROCA has been applied as a 
          content-neutral, provisional measure necessary to ensure that 
          the Legislature does not erode progress towards reducing prison 
          overcrowding by passing legislation which could increase the 
          prison population.  ROCA will continue until prison overcrowding 
          is resolved.

          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           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.  Design capacity is the number of inmates a 
          prison can house based on one inmate per cell, single-level 
          bunks in dormitories, and no beds in places not designed for 
          housing.  Current design capacity in CDCR's 33 institutions is 
          79,650.




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          On January 6, 2012, CDCR announced that California had cut 
          prison overcrowding by more than 11,000 inmates over the last 
          six months, a reduction largely accomplished by the passage of 
          Assembly Bill 109.  Under the prisoner-reduction order, the 
          inmate population in California's 33 prisons must be no more 
          than the following:

                 167 percent of design capacity by December 27, 2011 
               (133,016 inmates);
                 155 percent by June 27, 2012;
                 147 percent by December 27, 2012; and
                 137.5 percent by June 27, 2013.
               
          As proposed to be amended in Committee by the author (See 
          Comment 1), this bill will not aggravate the prison overcrowding 
          crisis described above under ROCA.


                                      COMMENTS

          1.  Author's Amendments

           The author's office has advised Committee staff that the author 
          will amend this bill in Committee to remove all of its penalty 
          provisions.  Specifically, the author will delete sections 2 and 
          3 of the bill, and in section 4 of the bill the author will 
          delete the change proposed in subdivision (b) of the bill.  The 
          intent of these amendments is to remove all penalty provisions 
          from the bill, and in that way not change current penalties 
          related to this issue.

          2.  Stated Need for This Bill    

          The author states:

               Abuse and (neglect) inflicted upon children is 
               something that our state has many laws and provisions 
               against. According to the California Department of 
               Social Services, the first child abuse reporting law 




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               in California was enacted in 1963. The early laws 
               mandated only physicians to report physical abuse. 
               Over the years, numerous amendments have expanded the 
               definition of child abuse and the persons required to 
               report. Procedures for reporting categories of child 
               abuse have also been clarified through legislation 
               over the last fifty years. This bill proposes 
               necessary changes to the mandated reporter laws in 
               order to be sure that those who work in close 
               proximity with children are ultimately responsible for 
               the well-being of those children.

               At the end of 2011, prosecutors filed criminal charges 
               against Jerry Sandusky,  the assistant football coach 
               at Penn State for nearly fifteen years, for alleged 
               sexual abuse charges. In the case against Sandusky, 
               the Grand Jury found that there had been at least 
               eight victims of sexual assaults throughout his career 
               at Penn State. The head coach of the Penn State 
               football team, Joe Paterno, allegedly knew of 
               instances of sexual abuse but failed to report these 
               directly to Child Welfare Services. Instead, he 
               reported to a supervisor who also failed to report to 
               Child Welfare Services. According to the author, 
               "these men protected their football team rather than 
               the innocent boys? and Ýthis] should never happen 
               again." 
                
               According to the American Academy of Pediatrics, "A 
               child is abused every 7 minutes in California.  
               Existing California law requires mandated reporters to 
               report when he/she has knowledge of, or has observed a 
               child whom, the mandated reporter know or reasonably 
               suspects has been the victim of child abuse or 
               neglect.  Passing the bill would extend mandated 
               reporters of child abuse and neglect to include 
               postsecondary coaches and employees, at public or 
               private institutions, serving in a coaching capacity.

               In (light) of recent events, it is imperative that the 




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               net of mandated reporters and the penalties for 
               failure to report be re-evaluated. This amendment to 
               the current Child Abuse and Neglect Reporting Act 
               (CANRA) serves as a means to hold institutions 
               accountable if there is any impedance to reporting or 
               any cover-up surrounding any abuse. The proposed 
               legislation would insure that athletic coaches of all 
               capacities be held responsible for reporting instances 
               of child sexual abuse or neglect, and would also 
               increase the penalties for failure to report.

          3.  What This Bill Would Do; Current Mandated Reporter Law
           

          This bill would add any "athletic coach, including, but not 
          limited to, an assistant coach or a graduate assistant involved 
          in coaching, at public or private postsecondary institutions," 
          as mandated child abuse and neglect reporters.  Under current 
          law, there are 40 enumerated categories of mandated reporters, 
          including teachers, instructional aides and others, which 
          already may include the athletic coaching staff covered by this 
          bill; however, current statute does not clearly specify higher 
          education personnel or volunteers.  

           

          4.  Existing California Law - Penal Code Section 152.3

           

          Historically, in common law there is no general legal duty to 
          aid others.  In 2000, the Legislature passed the "Sherrice 
          Iverson Child Victim Protection Act." Reflected in Penal Code 
          section 152.3, this law imposes criminal liability for failing 
          to report the kind of crimes against children described by the 
          author.  This Committee's analysis of AB 1422, which enacted 
          that law, provides background with respect to the duty to aid 
          others:

               Citing LaFave and Scott, a Dayton Law Journal article 




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               notes that generally speaking:


                    One has no legal duty to aid another person 
                    in peril, even when that aid can be rendered 
                    without danger or inconvenience to himself.  
                    He need not shout a warning to a blind man 
                    headed for a precipice or to an 
                    absent-minded one walking into a gunpowder 
                    room with a lighted candle in hand.  He need 
                    not pull a neighbor's baby out of a pool of 
                    water . . .  though the baby is drowning . . 
                    . A moral duty to take affirmative actions 
                    is not enough to impose a legal duty to do 
                    so. (fn.)


               However, the law review article goes on to say that 
               while LaFave and Scott are technically correct 
               "Ýc]riminal law is filled with obligations ascribing 
               legal duties to all of us based upon the consensus of 
               our elected officials as to what they believe is 
               morally appropriate." (fn.)  Seven major areas where a 
               duty to aid are discussed.  They are:  A duty to act 
               based upon a relationship of the parties; a duty to 
               act based upon contract; a duty based upon a voluntary 
               assumption of care; a duty may arise from the fact 
               that the person created the risk from which the need 
               for protection arose.; a duty can arise from a special 
               relationship that makes a non-acting partner 
               criminally responsible for the actor's criminal 
               action; a duty can arise from the fact that one owns 
               the real property upon which the victim is injured; 
               and the duty to act and the resulting criminal 
               liability for failing to act, based upon statute. 
               (fn.)<2>

               ----------------------
          <2>  Analysis of AB 1422 (Torlakson), June 13, 2000, Senate 
          Committee on Public Safety (footnotes omitted).
                                     



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          The Sherrice Iverson Act (AB 1422) was described by its author 
          as "needed to help avoid future scenarios such as the 1997 
          tragedy where the young girl . . . was assaulted and killed by a 
          young man whose companion did not feel the responsibility to 
          report the crime."  Current California law requires any person 
          (except as specified) who reasonably believes that he or she has 
          observed the commission of a murder, rape or forcible 
          molestation against a child under the age of 14 years to notify 
          a peace officer.  Arguably, had this been the law in 
          Pennsylvania at the time the alleged Sandusky assaults were 
          witnessed, it may have applied to those witnesses.


          DOES CALIFORNIA LAW ALREADY COVER THE KIND OF CIRCUMSTANCES 
          DESCRIBED BY THE AUTHOR?


          IF SO, IS THIS BILL NECESSARY? 





          5. Scope of This Bill



           This bill would apply to college and university athletic 
          coaches, assistant coaches, and graduate assistant coaches 
          involved in coaching.  Members and the author may wish to 
          discuss whether students or volunteers - who may be 
          participating as coaching assistants or graduate assistants - 
          should be included as mandated reporters.  Many categorical 
          reporters are provided with information about identifying child 
          abuse and neglect either through professional training or 
          through their employers.<3>  In addition, many are engaged in 
          professions where protocols have been developed and implemented 

          ---------------------------
          <3>  See, for example, California School Employees website page, 
          "Child Abuse Reporting," (http://www.csea.com). 



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          to ensure compliance with the law.<4>  Members may wish to 
          discuss whether students, or volunteers to the extent they may 
          be within the scope of this bill, should be mandated child abuse 
          and neglect reporters.  Members also may wish to discuss whether 
          narrowing this bill to coaching employees of public or private 
          postsecondary institutions would make sense.



          SHOULD COLLEGE STUDENT COACHES BE MANDATED CHILD ABUSE AND 
          NEGLECT REPORTERS?



          SHOULD VOLUNTEER COLLEGE COACHES BE MANDATED CHILD ABUSE AND 
          NEGLECT REPORTERS?



          SHOULD THIS BILL BE NARROWED TO COACHING EMPLOYEES?

          6.  Several Bills in This Area
           
          Several bills have been introduced this session which propose to 
          expand the obligation to report suspected child abuse or 
          neglect.  Members may wish to consider how these bills relate to 
          one another and how they could be reconciled to the extent they 
          may be redundant or inconsistent.  
                                          
          
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          |        Bill         | What the Bill Does  |       Status        |
          |---------------------+---------------------+---------------------|
          |SB 1264 (Vargas)     |Makes any "athletic  |Before this          |
          |(this bill)          |coach, including,    |Committee            |
          |                     |but not limited to,  |                     |
          |                     |an assistant coach   |                     |
          ---------------------------
          <4>  See, e.g., Physical Therapy Board of California, Mandatory 
          Reporting Obligations (  http://www.ptbc.ca.gov/ 
          laws_regs  /report_injuries.html.)



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          |                     |or a graduate        |                     |
          |                     |assistant involved   |                     |
          |                     |in coaching, at      |                     |
          |                     |public or private    |                     |
          |                     |postsecondary        |                     |
          |                     |institutions," a     |                     |
          |                     |mandated reporter,   |                     |
          |                     |and increases        |                     |
          |                     |specified related    |                     |
          |                     |penalties.           |                     |
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          |        Bill         | What the Bill Does  |       Status        |
          |---------------------+---------------------+---------------------|
          |AB 1434 (Feuer)      |Makes an "employee   |Assembly Floor       |
          |                     |of a public or       |                     |
          |                     |private institution  |                     |
          |                     |of higher education, |                     |
          |                     |as to child abuse or |                     |
          |                     |neglect occurring on |                     |
          |                     |that institution's   |                     |
          |                     |premises or at an    |                     |
          |                     |official activity    |                     |
          |                     |of, or program       |                     |
          |                     |conducted by, the    |                     |
          |                     |institution," a      |                     |
          |                     |mandated  reporter.  |                     |
          |---------------------+---------------------+---------------------|
          |AB 1435 (Dickinson)  |Makes an "athletic   |Assembly             |
          |                     |coach, athletic      |Appropriations       |
          |                     |administrator, or    |(suspense)           |
          |                     |athletic director    |                     |
          |                     |employed by a public |                     |
          |                     |or private           |                     |
          |                     |organization,        |                     |
          |                     |including, but not   |                     |
          |                     |limited to, schools  |                     |
          |                     |and institutions of  |                     |
          |                     |higher education," a |                     |
          |                     |mandated reporter;   |                     |
          |                     |and requires         |                     |
          |                     |training, as         |                     |
          |                     |specified.           |                     |
          |---------------------+---------------------+---------------------|
          |AB 1438 (Bradford)   |Expands the existing |Assembly Floor       |
          |                     |crime for failing to |                     |
          |                     |notify a peace       |                     |
          |                     |officer of a         |                     |
          |                     |specified violent    |                     |












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          |                     |crime against a      |                     |
          |                     |child under 14 to    |                     |
          |                     |include non-forcible |                     |
          |                     |child molestation    |                     |
          |                     |(PC 152.3)           |                     |
          |---------------------+---------------------+---------------------|
          |AB 1564 (Lara)       |Makes "volunteers of |Assembly Public      |
          |                     |public or private    |Safety               |
          |                     |organizations,       |                     |
          |                     |including nonprofit  |                     |
          |                     |organizations, whose |                     |
          |                     |duties require       |                     |
          |                     |direct contact with  |                     |
          |                     |and supervision of   |                     |
          |                     |children," mandated  |                     |
          |                     |reporters.           |                     |
          |---------------------+---------------------+---------------------|
          |AB 1713 (Campos)     |Expands existing     |Assembly             |
          |                     |definition of        |Appropriations       |
          |                     |commercial film and  |                     |
          |                     |photographic print   |                     |
          |                     |processers who are   |                     |
          |                     |mandated reporters   |                     |
          |                     |to include several   |                     |
          |                     |enumerated types of  |                     |
          |                     |computer-related     |                     |
          |                     |data and imagery.    |                     |
          |---------------------+---------------------+---------------------|
          |AB 1817 (Atkins)     |Makes "commercial    |Assembly Public      |
          |                     |computer             |Safety               |
          |                     |technicians," as     |                     |
          |                     |specified, mandated  |                     |
          |                     |reporters            |                     |
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