BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
2
0
AB 20 (Waldron)
As Amended May 29, 2013
Hearing date: June 4, 2013
Penal Code
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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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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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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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