BILL ANALYSIS                                                                                                                                                                                                    







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

                                                                     4
                                                                     6
          AB 465 (Bonilla)                                           5
          As Amended April 18, 2013
          Hearing date:  June 11, 2013
          Penal Code
          MK:mc

                                    YOUTH SPORTS: 

                              CRIMINAL BACKGROUND CHECK  


                                       HISTORY

          Source:  Author

          Prior Legislation: None

          Support: California State Sheriffs' Association; California  
                   Police Chiefs Association; Solano County Sheriff's  
                   Office; Child Abuse Prevention Center; Crime Victims  
                   United of California; California Catholic Conference

          Opposition:None known

          Assembly Floor Vote:  Ayes 75 - Noes 0

          (ANALYSIS REFLECTS AUTHOR'S AMENDMENT IN COMMENT 3.)


                                         KEY ISSUE
           
          SHOULD THE LAW CLEARLY PROVIDE THAT A COMMUNITY YOUTH ATHLETIC  
          PROGRAM CAN REQUEST STATE AND FEDERAL LEVEL CRIMINAL HISTORY  
          INFORMATION FROM THE DEPARTMENT OF JUSTICE FOR A VOLUNTEER OR PAID  




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                                                           AB 465 (Bonilla)
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          COACH?




                                       PURPOSE

          The purpose of this bill is to clearly provide that a community  
          youth athletic program can request state and federal level  
          criminal history information from Department of Justice for a  
          volunteer or paid coach.
           
           Existing law  provides that the Department of Justice (DOJ) shall  
          maintain state summary criminal history information and  
          authorizes DOJ to furnish state summary criminal history  
          information to statutorily authorized entities.  (Penal Code   
          11105.6.) 


           Existing law  states that, notwithstanding any other law, a human  
          resource agency or an employer may request from DOJ records of  
          all convictions or any arrest pending adjudication involving the  
          offenses specified of a person who applies for a license,  
          employment, or volunteer position, in which he or she would have  
          supervisory or disciplinary power over a minor or any person  
          under his or her care.   DOJ shall furnish the information to  
          the requesting employer and shall also send a copy of the  
          information to the applicant.  (Penal Code  11105.3(a).)
           
           Existing law  provides that a request for these records shall  
          include the applicant's fingerprints, which may be taken by the  
          requester, and any other data specified by DOJ.  The request  
          shall be on a form approved by DOJ, and DOJ may charge a fee to  
          be paid by the employer, human resource agency, or applicant for  
          the actual cost of processing the request.  However, no fee  
          shall be charged to a nonprofit organization.  Requests received  
          by DOJ for federal level criminal offender record information  
          shall be forwarded to the Federal Bureau of Investigation (FBI)  
          by DOJ to be searched for any record of arrests or convictions.   
          (Penal Code  11105.3(b).)




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           Existing law  requires the agency or employer to notify the  
          parents or guardians of any minor who will be supervised or  
          disciplined by the employee or volunteer where a request  
          pursuant to this section reveals that a prospective employee or  
          volunteer has been convicted of specified offenses, and the  
          agency or employer hires the prospective employee or volunteer.   
          The notice shall be given to the parents or guardians with whom  
          the child resides, and shall be given at least 10 days prior to  
          the day that the employee or volunteer begins his or her duties  
          or tasks.  (Penal Code  11105.3(c)(1).) 


           Existing law  states that the above notification requirement  
          shall not apply to a misdemeanor conviction for unlawful sexual  
          intercourse with a minor, or to a conviction for spousal rape or  
          domestic violence.  (Penal Code  11105.3(c)(2).) 


           Existing law  defines a "human resource agency" as a public or  
          private entity, excluding any agency responsible for licensing  
          of specified facilities, responsible for determining the  
          character and fitness of a person who is: 


                 Applying for a license, employment, or as a volunteer  
               within the human services field that involves the care and  
               security of children, the elderly, the handicapped, or the  
               mentally impaired. 
                 Applying to be a volunteer who transports individuals  
               impaired by drugs or alcohol. 
                 Applying to adopt a child or be a foster parent.  (Penal  
               Code  11105.3(g).)

           Existing law  states that any criminal history information  
          obtained pursuant to this section is confidential and no  
          recipient shall disclose its contents other than for the purpose  
          for which it was acquired, except as specified.  (Penal Code   
          11105.3(h).) 





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           Existing law  authorizes DOJ to provide subsequent state or  
          federal arrest or disposition notification to any entity  
          authorized by state or federal law to receive state or federal  
          summary criminal history information to assist in fulfilling  
          employment, licensing, certification duties, or the duties of  
          approving relative caregivers and nonrelative extended family  
          members, upon the arrest or disposition of any person whose  
          fingerprints are maintained on file at DOJ or the FBI as the  
          result of an application for licensing, employment,  
          certification, or approval.  Nothing in this section shall  
          authorize the notification of a subsequent disposition  
          pertaining to a disposition that does not result in a  
          conviction, unless DOJ has previously received notification of  
          the arrest and has previously lawfully notified a receiving  
          entity of the pending status of that arrest.  When DOJ supplies  
          subsequent arrest or disposition notification to a receiving  
          entity, the entity shall, at the same time, expeditiously  
          furnish a copy of the information to the person to whom it  
          relates if the information is a basis for an adverse employment,  
          licensing, or certification decision.  When furnished other than  
          in person, the copy shall be delivered to the last contact  
          information provided by the applicant.  (Penal Code   
          11105.2(a).) 


           Existing law  provides that any entity that submits the  
          fingerprints of an applicant for employment, licensing,  
          certification, or approval to DOJ for the purpose of  
          establishing a record at DOJ or the FBI to receive notification  
          of subsequent arrest or disposition shall immediately notify the  
          department if the applicant is not subsequently employed, or if  
          the applicant is denied licensing certification, or approval.   
          (Penal Code  11105.2(f).) 

           This bill  specifically provides that a community youth athletic  
          program may request state and federal level criminal history  
          information for a volunteer coach or hired coach candidate and  
          provides for the ability to request subsequent arrest  
          information. 
           




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                    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  
          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  




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          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  
          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.














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                                      COMMENTS

          1.    Need for This Bill  

          According to the author:

               Existing law requires anyone pursuing a position in a  
               public school district, whether employed or working as  
               a volunteer in a pupil activity program to submit  
               fingerprints electronically to the Department of  
               Justice.  The Department performs the background check  
               through the Automated Criminal History System (ACHS) -  
               a centralized, automated system containing criminal  
               history summary information on persons arrested and  
               fingerprinted.  The submission of scanned fingerprints  
               ensures a complete and accurate background check.   
               However, current law does not extend this requirement  
               to private youth organizations, creating an unequal  
               protection of our children.  While the larger national  
               youth sports organizations such as the American Youth  
               Soccer Organization and Little League Baseball Inc.  
               already require volunteers who work with minor children  
               to undergo fingerprinted criminal background checks,  
               other youth organizations only require coaches to  
               self-report if they have a criminal history. 

               In California schools, all volunteers who work with  
               students in a pupil activity program are required to  
               acquire an Activity Supervisor Clearance Certificate.   
               Part of this process is a DOJ fingerprint background  
               check.  Such volunteers work with students in  
               scholastic programs, interscholastic programs, and  
               extracurricular activities.  According to the  
               California Interscholastic Federation, the following  
               sports qualify as interscholastic athletic programs:  
               basketball, cross country, football, golf, track and  
               field, volleyball, wrestling, soccer, tennis,  
               badminton, baseball, field hockey, gymnastics,  
               lacrosse, skiing, snowboarding, softball, swimming and  
               diving, and water polo.  Scholastic programs include  




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               activities like the debate team and chess team, among  
               others.  Coaches can either be hired by districts or  
               act as volunteer coaches for school sponsored  
               extra-curricular activities.  These activities include  
               scholastic and interscholastic programs, but also  
               include other activities like cheer team, drill team,  
               dance team, color guard and marching band.

               Studies show two thirds of sexually abused victims  
               never tell an adult because of feeling shame or a fear  
               of punishment.<1> Coaches often serve as role models to  
               children and are entrusted with authoritative duties.   
               This can leave a child particularly vulnerable to abuse  
               and manipulation.  This bill would provide better  
               oversight protection of individuals left alone with  
               children by extending background checks to all youth  
               sports organizations. 

               In 2012, a Bay Area soccer coach pleaded guilty to  
               sexually abusing a thirteen year old girl who was also  
               a player on the team he coached.  Had a thorough  
               criminal background check been administered, a prior  
               domestic violence charge would have been discovered on  
               the individual's record.<2> 

               To provide consistency and ensure all minors are  
               protected, it is necessary to require background checks  
               on all volunteer coaches in youth sports organizations.  
                The California Legislature has already established  
               standards to prevent individuals with abusive and  
               violent histories from being employed by school  
               districts or involved with any sports teams that are  
               administered by public schools. 
               -----------------------
          <1>  
          http://www.naasca.org/2012-Resources/010812-StaisticsOfChildAbuse 
          .htm.

          <2>  
          http://www.mercurynews.com/breaking-news/ci_22349162/san-jose-law 
          suit-alleges-soccer-league-failed-perform.











                                                           AB 465 (Bonilla)
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               AB 465 clarifies that all community youth athletic  
               programs in California are authorized to administer  
               criminal background checks on volunteer coaches and  
               also authorizes leagues to request subsequent arrest  
               notification from the Department of Justice.  This  
               ensures that the most appropriate individuals work with  
               our children and any new offenses that may influence  
               hiring decisions are communicated to leagues.  While  
               not precluding these individuals from serving as  
               coaches, AB 465 allows leagues to have access to this  
               information when making hiring decisions.

          2.                                                               
             Background Checks for Coaches  

          In order for an organization to have a criminal background check  
          done by the Department of Justice of their employees, it must be  
          authorized by statute.  Under existing law, a human resource  
          agency or employer may request a background check of a person  
          who will have supervisory or disciplinary power over a minor.   
          This bill specifically provides that a community youth athletic  
          program may request a background check for any volunteer coach  
          or hired coach candidate and allows the community youth athletic  
          program to request subsequent arrest information.  "Community  
          youth athletic program" means an employer having as its primary  
          purpose the promotion or provision of athletic activities for  
          youth under 18 years of age.

          3.    Author's Amendment  

          The author will amend the bill in Committee to delete "head"  
          from page 4, line 31.


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                                                           AB 465 (Bonilla)
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