BILL ANALYSIS                                                                                                                                                                                                    Ó







          
                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 20 (Waldron)                                             
          As Amended May 29, 2013 
          Hearing date:  June 4, 2013
          Penal Code
          JM:mc


             FINE FOR USE OF A GOVERNMENT COMPUTER FOR CHILD PORNOGRAPHY:

                  BAR ON EXPUNGEMENT OF A CHILD PORNOGRAPHY OFFENSE

                                           
                                       HISTORY

          Source:  Author

          Prior Legislation: AB 729 (Bowler) - Ch. 61, Stats.  1997

          Support: California Police Chiefs Association; California  
                   Probation, Parole, and Correctional Association;  
                   Concerned Women for America of California; League of  
                   California Cities; Peace Officers Research Association  
                   of California; San Bernardino County Sheriff; City of  
                   San Marcos; Valley Center-Pauma Unified School  
                   District; Southwest California Legislative Council;  
                   Fallbrook Union High School District

          Opposition:None known

          Assembly Floor Vote:  Ayes 74 - Noes  0






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                                                            AB 20 (Waldron)
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                                        KEY ISSUES
           
          SHOULD A SENTENCING COURT BE REQUIRED TO IMPOSE A SPECIAL FINE OF UP  
          TO $2,000 ON A DEFENDANT WHO USED A GOVERNMENT COMPUTER IN A CHILD  
          PORNOGRAPHY CRIME, AND SHOULD THIS FINE BE USED FOR VICTIM SERVICES,  
          LAW ENFORCEMENT TRAINING, AND FUNDING HIGH-TECHNOLOGY CRIME TASK  
          FORCES?

          SHOULD ANY PERSON WHO SUCCESSFULLY COMPLETES PROBATION FOR A CHILD  
          PORNOGRAPHY OFFENSE BE BARRED FROM OBTAINING DISMISSAL OF THE  
          CONVICTION AND UNDERLYING CHARGES?



                                       PURPOSE

          The purposes of this bill are to 1) require the sentencing court  
          to impose a special fine of up to $2,000 upon a defendant who  
          used a government computer or network in a child pornography  
          offense, or who used government property to produce or  
          distribute such material; 2) provide that 25% of the fine shall  
          be paid to each of the following recipients: sexual assault  
          investigator training programs, high-technology crime task  
          forces, public and private agencies providing services to human  
          trafficking victims and multidisciplinary teams; and 3) prohibit  
          any person who has successfully completed probation for a  
          specified child pornography or obscenity crime to obtain  
          dismissal of the conviction and underlying charges.

          Production, Distribution and Possession of Child Pornography and  
          Related Offenses
           
          Existing law  provides that any person possessing or importing  
          into California any obscene matter for sale or distribution is  
          guilty of a misdemeanor for a first conviction.  A second or  
          subsequent conviction is a felony, with increased fines.  (Pen.  
          Code §§ 311.2, subd. (a) and 311.9.)
          
          Existing law  provides that every person who sends, brings,  




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                                                            AB 20 (Waldron)
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          possesses, prepares, publishes, produces, duplicates or prints  
          any obscene matter depicting a person under the age of l8 years  
          engaging in or simulating sexual conduct, with the intent to  
          distribute, exhibit, or exchange such material, is guilty of an  
          alternate felony-misdemeanor, punishable by imprisonment in the  
          county jail for up to one year or in the state prison for 16  
          months, 2 or 3 years, and a fine not to exceed $10,000.  (Pen.  
          Code § 311.1.)

           Existing law  specifies that every person who sends, brings,  
          possesses, prepares, publishes, produces, duplicates or prints  
          any obscene matter depicting a person under the age of l8 years  
          engaging in or simulating sexual conduct for commercial purposes  
          is guilty of a felony, punishable by imprisonment in the state  
          prison for two, three, or six years and a fine up to $100,000.   
          (Pen. Code § 311.2, subd. (b).)

           Existing law  provides that possession of material that depicts a  
          person under 18 years of age engaged in actual or simulated  
          sexual conduct is an alternate felony-misdemeanor punishable by  
          imprisonment in the county jail for up to 1 year, or by  
          imprisonment in state prison for 16 months, 2 years or 3 years,  
          or by a fine of up to $2,500, or both.  (Pen. Code § 311.11, 
          subd. (a).)  

           Existing law  provides that if a criminal defendant is convicted  
          of possession of material that depicts a person under the age of  
          18 engaged in actual or simulated sexual conduct and the  
          defendant has been previously convicted of any crime for which  
          the defendant must register as a sex offender, the defendant is  
          guilty of a felony, punishable by a term of 2, 4, or 6 years in  
          prison and a fine of up to $10,000.  (Pen. Code § 311.11, subd.  
          (b).)  

           Existing law  provides that any person who hires or uses a minor  
          to assist in the preparation or distribution of obscene matter  
          is guilty of a misdemeanor.  If the person has a prior  
          conviction, the crime is a felony.  (Pen. Code § 311.4, subd.  
          (a).)





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           Existing law  provides that any person who hires or uses a minor  
          to assist in the possession, preparation or distribution of  
          obscene matter for commercial purposes is guilty of a felony,  
          punishable by imprisonment in the state prison for three, six,  
          or eight years.  (Pen. Code § 311.4, subd. (b).)
           
           High Technology Crime Task Forces
          
           Existing law  (Pen. Code § 13848, subd. (b)) defines high  
          technology crime as follows:

          ] White collar crime committed by electronic or computer-related  
            media or means.
          ] Hacking into, destruction of, et cetera, computer networks and  
            systems.
          ] Computer assisted money laundering.
          ] Theft of telecommunications services.
          ] Software piracy.
          ] Computer, computer component, et cetera, theft and  
            counterfeiting.
          ] Theft of trade secrets.

           Existing law  establishes the High Technology Crime Advisory  
          Committee (HTCAC) for the purpose of formulating a comprehensive  
          strategy for addressing high technology crime throughout  
          California and to advise the overseeing agency on the  
          appropriate disbursement of funds to regional task forces.   
          (Pen. Code §§ 13848.2, 13848.4 and 13848.6.)

           Existing law  has established the HTTAPP Trust Fund into which  
          all funds for the HTTAPP shall be deposited.  (Pen. Code §  
          13848.4.)

           Existing law  requires HTCAC strategy to include the following  
          goals:

          § Prosecute criminal organizations, networks, and groups engaged  
            in the theft of computer components, high technology products,  
            and telecommunications services; apprehend and prosecute those  
            who counterfeit negotiable instruments with computer  




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            technology and who create and distributed counterfeit  
            software.
          § Prosecute groups engaged in the unlawful access, destruction,  
            or unauthorized entry into and use of private, corporate, or  
            government computers and networks and the theft, destruction  
            or unauthorized disclosure of the data stored in those  
            computers.
          § Prosecute individuals engaged in the theft of trade secrets.
          § Investigate and prosecute high technology crime cases  
            requiring cooperation and coordination between regional task  
            forces and local, state, and federal law enforcement agencies.  
             (Pen. Code § 13848.6.) 

           This bill  provides that where a defendant is convicted of a  
          child pornography offense that was committed through use of a  
          government computer or network, or where the production,  
          transportation, or distribution of the material involved  
          government-owned property, the court shall impose a fine not  
          exceeding $2,000, unless the court determines that the defendant  
          does not have the ability to pay.  The fine shall be imposed in  
          addition to any other punishment, including imprisonment or any  
          other fine or fee.  

           This bill  states that revenue from the fine shall be transferred  
          into a specific county fund and allocated equally the following  
          entities or purposes: 1) sexual assault investigator training;  
          2) high technology crime task forces; 3) public agencies and  
          nonprofit corporations that provide direct services for victims  
          of human trafficking; and 4) multidisciplinary teams involved in  
          the prosecution of child abuse cases, as specified.

           This bill  provides that the special fine for use of government  
          computers or networks for child pornography shall not be subject  
          to penalty assessments. 

          Probation and the Dismissal of a Conviction and Underlying  
          Charge for a Person Who Successfully Completes Probation
           
          Existing law  defines probation as the suspension of the  
          imposition or execution of a sentence and the order of  




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          conditional and revocable release in the community under the  
          supervision of a probation officer.  Typically, felony probation  
          involves a period of jail incarceration as a   condition of  
          probation, along with numerous other conditions.  (Pen. Code §  
          1203.)    

           Existing law  declares that probation is an essential element in  
          the administration of criminal justice.  The safety of the  
          public, the nature of the offense, the interests of justice,  
          including punishment, reintegration of the offender into the  
          community, the loss to the victim and the needs of the defendant  
          shall be the primary considerations in the granting of  
          probation.  The safety of the public is the most important  
          consideration among these.  (Pen. Code § 1202.7.)    

           
          Existing law  provides that in any case where the defendant has  
          fulfilled the conditions of probation, or in any other case in  
          which a court, in its discretion and the interests of justice,    
               determines that a defendant should be granted the  
          prescribed relief, and where the defendant is not serving a  
          sentence on probation or charged with any offense, the court  
          shall set aside the verdict or plea<1> of guilty.  The court  
          shall then dismiss the accusation against the defendant, and,  
          except as noted, the defendant shall be released from all  
          penalties and disabilities.  (Pen. Code 
          § 1203.4, subd. (a).)
                     
           Existing law  prohibits the dismissal<2> of the conviction and  
          underlying charges for persons convicted of child molestation,  
          continuous sexual abuse of a child, sodomy with a child under  
          the age of 14, oral copulation with a child under the age of 14,  
          and sexual penetration of a child under the age of 14.  (Pen.  
          Code § 1203.4, subd. (b).)
                    
          ---------------------------
          <1> Section 1203.4 specifically provides that the court shall  
          permit the defendant to withdraw his or her plea of guilty.  
          <2> This relief is often inaccurately referred to as  
          expungement, although expungement would involve much greater  
          relief than available under Section 1203.4



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           Existing law  states that dismissal of an accusation or  
          information pursuant to Penal Code 
          Section 1203.4 does not permit a person to own, possess, or have  
          in his or her custody or control any firearm or prevent him or  
          her from being convicted of the offense of being an ex-felon in  
          possession of a firearm.  (Pen. Code § 1203.4, subd. (a).)
                     
           Existing law  states that an order of dismissal does not relieve  
          a person of the obligation to disclose the conviction in  
          response to any questions contained in any application for  
          public office, or for licensure for any state or local agency.   
          (Pen. Code § 1203.4, subd. (a).)
                     
           Existing law  provides that in any other subsequent prosecution  
          of the defendant, the dismissed prior conviction may be pleaded  
          and proved and shall have the same effect as if probation had  
          not been granted, or the accusation or information not  
          dismissed.  (Pen. Code § 1203.4, subd. (a).)

           This bill  prohibits any person who has successfully completed  
          probation for a specified child pornography or obscenity offense  
          from obtaining dismissal of the conviction and arrest pursuant  
          to Penal Code Section 1203.4.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  




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          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  




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          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.



                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               AB 20 imposes a fine of up to $2,000 on property and  
               online networks owned or operated by state government.  
                This measure would protect taxpayer funded property  
               and also protect our children from harm and sexually  
               explicit materials. Revenue from these fines will  
               benefit sexual assault investigator training, human  
               trafficking response task forces, multidisciplinary  
               child-focused facilities, and groups that provide  
               shelter, counseling, or other direct services for  
               victims of human trafficking.

          2.  Fines and Fees in Criminal Cases - The Special Fine in This  
            Bill is Not Subject to Penalty Assessments

           Under existing law, a defendant must pay direct restitution to  
          the victim and a restitution fine from $140 to $1,000 for  




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          misdemeanors and $280 to $10,000 for felonies.  The court can  
          also impose substantial criminal fines, with a usual maximum of  
          $10,000 for a felony and $1,000 for a misdemeanor.  "Penalty  
          assessments" of approximately 280% must be applied to these  
          fines.  For example, where a court imposed a felony fine of  
          $10,000, penalty assessments of $28,020 would be imposed as  
          well, for a total of $38,020.  The special fine imposed under  
          this bill is not subject to penalty assessments.  A defendant  
          ordered to pay the maximum fine of $2,000 for use of a  
          government computer or network in a child pornography offense  
          would pay that amount.

          3.  Payment of Criminal Fines to a Law Enforcement Entity - Bounty  
            Issues and Precedent for Funding Law Enforcement Activities  
            Through Fines  

          The direct payment of criminal fines or fees to a law  
          enforcement entity raises issues of an improper bounty - an  
          incentive for law enforcement agencies to pursue investigations  
          based on financial interest, rather than public safety.  These  
          concerns may be heightened when government budgets are strained.

          Further, designating that criminal fines be paid to a particular  
          law enforcement program could set a precedent under which other  
          law enforcement entities could press to receive the proceeds of  
          criminal fines.  Investigations of many crimes - murders, sexual  
          assaults, financial crimes, construction fraud and worker's  
          compensation fraud - may be as costly and complicated as high  
          technology crimes.  If criminal fines are used to fund  
          high-technology task forces, law enforcement officers and  
          prosecutors who handle other complex cases could demand that  
          fines be used to support their operations.  

          To avoid creation of an incentive for high technology task  
          forces to pursue certain crimes for financial purposes, not  
          solely law enforcement purposes, and to avoid a precedent for  
          funding law enforcement through criminal fines, Members may wish  
          to consider amending the bill to exclude high technology task  
          forces from receiving revenues from the special fine.





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          WOULD DIRECT PAYMENT TO HIGH-TECHNOLOGY TASK FORCES OF SPECIAL  
          FINES IN CHILD PORNOGRAPHY CRIMES RAISE CONCERNS THAT  
          INVESTIGATION AND PROSECUTION OF SUCH CRIMES COULD BE BASED ON  
          FINANCIAL INCENTIVES, RATHER THAN SOLELY FOR LAW ENFORCEMENT  
          PURPOSES?

          WOULD PAYMENT OF CRIMINAL FINES TO HIGH TECHNOLOGY TASK FORCES  
          SET A PRECEDENT UNDER WHICH OTHER LAW ENFORCEMENT ENTITIES THAT  
          INVESTIGATE COMPLEX CRIMES WOULD PRESS TO RECEIVE PAYMENT OF  
          CRIMINAL FINES?

          4.  Dismissal of a Conviction Pursuant to Penal Code Section  
          1203.4  

          Probation is a grant of leniency for a convicted defendant who  
          has shown amenability to rehabilitation.  The conditions of  
          probation should promote rehabilitation, protect the public and  
          the victim and ensure that justice is done.  (People v. Fritchey  
          (1992) 2 Cal.App.4th 829, 835; Brown v. Superior Court (2002)  
          101 Cal.App.4th 313, 319.)

          Penal Code Section 1203.4 provides that a defendant who  
          successfully completes probation is entitled to relief from  
          specified penalties and disabilities attendant to a felony  
          conviction if he or he has fully complied with the terms of  
          probation.  A court also has discretion to grant this relief  
          where the defendant successfully completed probation, but did  
          violate some terms of probation.  "A grant of relief under  
          section 1203.4 is intended to reward an individual who  
          successfully completes probation by mitigating some of the  
          consequences of his conviction and, with a few exceptions, to  
          restore him to his former status in society to the extent the  
          Legislature has power to do so."  (People v. Field (1995) 31  
          Cal.App.4th 1778, 1786-1787; citations omitted.) 

          The exceptions and limitations under Section 1203.4 include the  
          following: A person whose felony conviction was dismissed  
          pursuant to Section 1203.4 may not possess a firearm.  A    
          conviction dismissed pursuant to Section 1203.4 can be charged  



           
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          as a prior conviction in any subsequent prosecution and the  
          conviction must be disclosed in an application for peace officer  
          status or for licensure.  Persons convicted of specified sex  
          offenses are not eligible for relief.  This bill expands the  
          prohibition on dismissal of a conviction following successful  
          completion of probation for any person who has been convicted of  
          any child pornography offense.  In this regard, it may be noted  
          that the prohibitions on child pornography production and  
          possession are based on the fact that minors are necessarily  
          abused and exploited in the creation of this material.  (New  
          York v. Ferber (1982) 458 U.S. 747, 756-774.)



          SHOULD ANY PERSON WHO SUCCESSFULLY COMPLETES PROBATION FOR A  
          CHILD PORNOGRAPHY CRIME BE PROHIBITED FROM OBTAINING DISMISSAL  
          OF THE CONVICTION AND UNDERLYING CHARGES PURSUANT TO PENAL CODE  
          SECTION 1203.4?


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