BILL ANALYSIS �
AB 1108
Page 1
Date of Hearing: April 23, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1108 (Perea) - As Amended: April 15, 2013
As Proposed to be Amended in Committee
SUMMARY : Makes it a crime for any person required to register
as a sex offender based on the commission of an offense against
a minor to reside (except as a client), to work, or to volunteer
in specified foster homes or facilities. Specifically, this
bill :
1)Prohibits any person required to register as a sex offender
based on the commission of an offense against a minor from
residing, except as a client, and from working or volunteering
in the following foster homes or facilities:
a) A foster home or facility licensed by the State
Department of Social Services or a county child welfare
services agency;
b) A certified home of a foster care agency; and,
c) A home or facility that receives a placement of a child
who has been, or may be, declared a dependent or a ward of
the juvenile court.
2)Specifies that a violation is punishable as a misdemeanor.
EXISTING LAW :
1)Requires persons convicted of specified sex offenses to
register for life, or reregister if the person has been
previously registered, upon release from incarceration,
placement, commitment, or release on probation. States that
the registration shall consist of all of the following:
a) A statement signed in writing by the person, giving
information as shall be required by DOJ and giving the name
and address of the person's employer, and the address of
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the person's place of employment, if different from the
employer's main address;
b) Fingerprints and a current photograph taken by the
registering official;
c) The license plate number of any vehicle owned by,
regularly driven by or registered in the name of the
registrant;
d) Notice to the person that he or she may have a duty to
register in any other state where he or she may relocate;
and,
e) Copies of adequate proof of residence, such as a
California driver's license or identification card, recent
rent or utility receipt or any other information that the
registering official believes is reliable. [Penal Code
Section 290.015(a).]
2)Prohibits registrants whose crime was against a victim under
age 16 from working with minors as an employee or volunteer,
under specified circumstances. Provides that if the
registrant's crime was not against a victim under age 16, the
registrant must notify the employer or volunteer organization
of his status as a registrant. (Penal Code Section 290.95.)
3)Provides, in a statute entitled "Sex Offender Registrant
Parolees", that notwithstanding any other provision of law,
when a person is released on parole after having served a term
of imprisonment in a state prison for which registration as a
sex offender is required, that person may not, during the
period of parole, reside in any single family dwelling with
any other person also required to register as a sex offender,
unless those persons are legally related by blood, marriage,
or adoption. [Penal Code Section 3003.5(a).]
4)Prohibits any person required to register as a sex offender
from residing within 2,000 feet of any public or private
school, or park where children regularly gather. [Penal Code
Section 3003.5(b).]
5)Provides that notwithstanding any other provision of law, an
inmate who is released on parole for a violation of lewd and
lascivious acts with a child, or continuous sexual abuse of a
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child, whom the California Department of Corrections and
Rehabilitation (CDCR) has determined poses a high risk to the
public shall not be placed or reside, for the duration of his
or her parole, within one-half mile of any public or private
school including any or all of Kindergarten and Grades 1
through 12, inclusive. [Penal Code Section 3003(g).]
6)Establishes the California Community Care Facilities Act
(CCFA) to provide a comprehensive statewide service system of
quality community care for people who have a mental illness, a
developmental or physical disability, and children and adults
who require care or services by a facility or organization.
[Health and Safety Code (HSC) Section 1500 et seq.]
7)Authorizes Department of Social Services (DSS) to license
facilities or organizations that provide services under the
jurisdiction of the CCFA. (HSC Section 1509.)
8)Prohibits the issuance of a license to operate or manage a
community care facility to a person convicted of specified
crimes, including a crime requiring as a sex offender
registration, unless an exemption is granted. [HSC Section
1522(a).]
9)Allows the director of DSS to grant an exemption from
disqualification for a license based on criminal record
information, but prohibits the granting of an exemption for
specified crimes. [HSC Section 1522(g).]
10)Provides that any person required to register as a sex
offender shall disclose this fact to the licensee of a
community care facility before becoming a client of that
facility. Any person or persons operating a community care
facility that accepts as a client an individual who is
required to register as a sex offender shall confirm or deny
whether any client of the facility is a registered sex
offender in response to any person who inquires whether any
client of the facility is a registered sex offender, as
specified. (HSC Section 1522.01.)
11)Provides that any person who violates the CCFA, as specified,
or who willfully or repeatedly violates any rule or regulation
promulgated under the Act, is guilty of a misdemeanor. (HSC
Section 1540.)
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12)Allows a minor to be removed from the home and placed in
foster care (for example, the home of a relative,
non-relative, or community care facility) when declared to be
a dependent or a ward of the juvenile court. [Welfare and
Institutions Code Sections 361.1 and 727(a)(3).]
13)Provides that prior to placing a child in the home of a
relative, or the home of any prospective guardian or other
person who is not a licensed or certified foster parent, the
county social worker must visit the home, conduct a criminal
records check and a check of the Child Abuse Central Index.
[Welfare and Institutions Code Sections 361.4.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1108 would
explicitly prohibit registered sex offenders who commit an
offense against minors from living, working or volunteering in
licensed and unlicensed children's facilities or child welfare
services placements. State licensed and unlicensed facilities
that serve children should be safe places. We need to make
sure our state agencies and law enforcement are using all the
tools available to them to keep sex offenders away from our
must vulnerable children."
2)Bureau of State Audits : This bill is in response to an
October 2011 report by the State Auditor, Child Welfare
Services, California Can and Must Provide Better Protection
and Support for Abused and Neglected Children. The report
noted that noted that DSS could make better use of the
Department of Justice's (DOJ) sex-offender registry to ensure
that sex offenders are not living or working among children in
the child welfare services system. The auditor compared the
addresses of sex offenders in the DOJ registry with the
addresses of DSS- and county- licensed facilities, as well as
the addresses of child welfare services placements, and found
over 1,000 address matches, nearly 600 of which were high risk
and in need of immediate investigation.
3)Juvenile Court Jurisdiction of a Minor : In California, the
juvenile court's jurisdiction over a minor can be invoked in
two ways: by a dependency petition under Welfare and
Institutions Code Section 300, which alleges the child's home
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is unfit due to parental abuse or neglect; or by a delinquency
petition, which accuses the child of the violation of a law
that defines a crime under Welfare and Institutions Code
Section 602. [In re W.B. (2012) 55 Cal.4th 30, 42.]
In a dependency proceedings, before a minor can be removed from
the parent's custody, the court must find, by clear and
convincing evidence, that there is or would be a substantial
danger to the physical health, safety, protection, or physical
or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the
minor's physical health can be protected without removing the
minor from the minor's parent's physical custody. [Welfare
and Institutions Code Section 361(c)(1).] A removal order is
proper if it is based on proof of both parental inability to
provide proper care for the minor, and potential detriment to
the minor if he or she remains with the parent. The parent
need not be dangerous and the minor need not have been harmed
before removal is appropriate. The focus of the statute is on
averting harm to the child. [In re T.W. (2013) 214
Cal.App.4th 1154, 1163.]
"Although the great majority of children enter foster care
through the dependency process, a child may also enter foster
care in a delinquency placement." [In re W.B., supra, 55
Cal.4th at p. 44.] Removal from the home in delinquency
proceedings is only allowed if the court finds the parent has
not or cannot provide proper maintenance, training, and
education for the child; previous attempts at in-home
probation have failed; or the child's welfare requires that
custody be taken from the parent. [Welfare & Inst. Code,
Section 726(a).] As one of the placement options, the
juvenile court may order that the ward be placed in a
non-secure home or facility. [Welfare & Inst. Code Section
730.] If a non-secure placement is deemed appropriate, the
probation department may place the ward in the home of a
relative, in a licensed community care facility, or in foster
care. [Welfare & Inst. Code Section 727(a)(3).] A group home
is the most common out-of-home placement chosen for delinquent
wards. [In re W.B., supra, 55 Cal.4th at pp. 44-45.]
"In July 2009, approximately 63,000 California children were
in foster care under the supervision of child welfare
departments. Another 5,000 were in probation-supervised
foster care because of their involvement with the criminal
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justice system. Children who entered foster care through
delinquency proceedings generally comprise less than 10
percent of the population in foster care." [In re W.B.,
supra, 55 Cal.4th at p. 44, fn. 4 citing Danielson & Lee,
Foster Care in California: Achievements and Challenges (May
2010) Public Policy Institute of California<
http://www.ppic.org/main/publication.asp?i=905>.]
4)Current Employment and Volunteer Restrictions on Registered
Sex Offenders : Current law generally prohibits registered sex
offenders from working in positions having direct,
unsupervised contact with children. In addition, registered
sex offenders cannot work at community care facilities,
including child day-care facilities, residential care
facilities for the elderly, public schools, and certain
recreational jobs. Existing law also requires public school
districts and private schools to conduct criminal record
checks on teachers and administrators.
Existing law authorizes human resource agencies and employers to
request from the DOJ records of all convictions or any arrest
pending adjudication involving certain offenses 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. The DOJ must furnish the information to
the requesting employer and send a copy to the applicant.
5)Sex Offender Residency Restrictions : Jessica's Law created
several residency restrictions for sex offenders. The
California Supreme Court is currently considering the
constitutionality of one residency restriction in In re Taylor
(S206143), rev. granted Jan. 3, 2013. The question before the
Court in that case is whether the residency restriction of
Penal Code Section 3003.5(b), when enforced as a mandatory
parole condition against registered sex offenders paroled to
San Diego County, constitute an unreasonable statutory parole
condition that infringes on their constitutional rights? The
Court of Appeal had held in People v. Taylor (2012) 209
Cal.App.4th 210 that, as applied, the residency restriction as
a condition of parole for all sex offenders, based on
"Jessica's Law," impermissibly impinges on the right to travel
because it makes it virtually impossible for parolees to find
affordable compliant housing in San Diego County.
In December 2010, the California Research Bureau (CRB) published
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a report which reviewed practices and procedures throughout
the United States regarding the registration of sex offenders.
Specifically, the CRB examines registration requirements,
tiered registration, the duration of registration, and best
practices and the overall cost-effectiveness of sex offender
registration requirements. The CRB compared California's
requirements to those of neighboring states as well as states
with large populations and/or similar demographics, namely
Arizona, Nevada, Oregon, Florida, New Jersey, New York,
Pennsylvania and Texas. For each of these states, CRB
compiled the following information: (a) the offenses which
require offender registration; (b) the duration and type of
registration (tiered vs. nontiered, i.e., duration based on
type of crime committed and/or risk for reoffense); (c) any
residency or occupational restrictions placed on registrants.
The CRB found:
"These states have many registrable sex offenses in common such
as sexual assault, luring or kidnapping of a minor, possessing
child pornography, etc. However, they vary in the duration of
registration requirements and in whether or not they place
occupational or residency restrictions on registrants.
"Of the states reviewed, only one, Florida, requires lifetime
registration. The others have tiers for registration - based
on prior convictions or the type of offense, i.e., registering
for ten, 15 or 20 years for first-time offenses; and lifetime
registration for more violent or repeat offenses. Some of the
states do allow registrants to petition for removal from the
list, generally after a period of not committing any
registrable offenses. In contrast, California requires
lifetime registration for all offenses, and only allows people
convicted of certain misdemeanor sex offenses to apply for a
certificate of rehabilitation with a trial court. If the
certification is granted, they might be released from the duty
to register --- but not in all cases.
"Of the states reviewed, all have either some form of residency
or occupational restrictions. Only one, Oregon, has both
types of restrictions. In Oregon, sex offenders cannot reside
'near locations where children are the primary occupants or
users,' or live with other sex offenders. They are also
ineligible to become teachers. In California, sex offenders
cannot reside within 2,000 feet of 'any public or private
school, or park where children regularly gather.' They may be
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subject to local ordinances that limit where they can live
even further. Also, a registered sex offender in California
whose victim was under the age of 16 cannot work with minor
children. The other selected states in this brief which have
some type of residency restriction generally limit how close a
sex offender may live in proximity to a school, daycare
center, playground or any other place where children
congregate. Occupational restrictions can sometimes be more
haphazard: New York, for example, prohibits sex offenders from
operating ice cream trucks, but has no other limitations. In
some states, such as Pennsylvania and Texas there may be
restrictions placed on offenders as a condition of parole, but
not required by statute."
6)Argument in Support : According to the California State
Sheriff's Association , "Under current law, individuals seeking
a license to operate a community care facility or others known
to be living or working in facilities must go through numerous
types of background checks and would be prohibited from living
or working in these locations if they had been convicted of a
registerable sex offense. However, a recent State Auditor
report found that there are numerous registered sex offenders
inappropriately living or present in several foster homes and
other licensed facilities.
"AB 1108 ensures that these registered sex offenders are
prohibited from these facilities, and a violation of this
provision would be considered a misdemeanor."
7)Related Legislation : AB 702 (Ammiano) establishes a
three-tiered registration system for sex offenders for periods
of 10 years, 20 years, or life. AB 702 is pending hearing by
the Assembly Appropriations Committee.
8)Prior Legislation :
a) AB 493 (Perea), of the 2011-12 Legislative Session,
would have created a new misdemeanor prohibiting persons
who are required to register as sex offenders from
residing, working or volunteering in specified community
care facilities for children; and require peace officers
from DSS to compare the residence and employment addresses
of registered sex offenders against the addresses of
specified community care facilities for children at least
quarterly, and to take "appropriate action" when matches
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were discovered. AB 493 was held on the Senate
Appropriations Committee's Suspense File.
b) SB 583 (Hollingsworth), Chapter 55, Statutes of 2009,
required DOJ, when registering sex offenders, to include a
unique identifier classifying the dwelling type of the
registrant, as specified. SB 583 also required DOJ to
maintain those classifications within the database
maintained for sex offender registrations and to provide
that information to other state agencies, including DSS.
c) AB 2263 (Spitzer), Chapter 341, Statutes of 2006,
required registered sex offenders to disclose their status
as a registrant when working or volunteering in a setting
with minors where the registrant, even if they are
accompanied, would be required to touch the minor on more
than an incidental and occasional basis.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of Regional Center Agencies
California District Attorneys Association
California Probation, Parole and Correctional Association
California State Sheriffs' Association
California Youth Connection
Chief Probation Officers of California
Child Abuse Prevention Center
Crime Victims United of California
Opposition
None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744