BILL ANALYSIS Ó 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 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 (More) AB 20 (Waldron) PageB 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, (More) AB 20 (Waldron) PageC 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).) (More) AB 20 (Waldron) PageD 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 (More) AB 20 (Waldron) PageE 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 (More) AB 20 (Waldron) PageF 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 (More) AB 20 (Waldron) PageG 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 (More) AB 20 (Waldron) PageH 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 (More) AB 20 (Waldron) PageI 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 (More) AB 20 (Waldron) PageJ 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. (More) 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 (More) AB 20 (Waldron) PageL 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? ***************