BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1108 (Perea) 8
As Amended April 29, 2013
Hearing date: June 11, 2013
Penal Code
AA:mc
REGISTERED SEX OFFENDERS:
COMMUNITY CARE FACILITIES FOR CHILDREN
HISTORY
Source: Authors
Prior Legislation: AB 493 (Perea) - 2012, held in Senate
Appropriations
SB 583 (Hollingsworth) - Ch. 55, Stats. 2009
AB 2593 (Adams) - 2008, held on Senate
Appropriations Suspense
Support: California Family Resource Association; Child Abuse
Prevention Center; California District
Attorneys Association; California Youth Connection; California
Probation, Parole and Correctional Association; Chief Probation
Officers of California;
California State Sheriffs' Association; Crittenton Services for
Children and Families; Association of Regional Center Agencies;
Crime Victims United of California
Opposition:Taxpayers for Improving Public Safety
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Assembly Floor Vote: Ayes 70 - Noes 0
KEY ISSUE
SHOULD A NEW MISDEMEANOR BE ENACTED TO PROHIBIT PERSONS WHO ARE
REQUIRED TO REGISTER AS SEX OFFENDERS BASED UPON THE COMMISSION OF
AN OFFENSE AGAINST A CHILD FROM RESIDING, EXCEPT AS A CLIENT, OR
WORKING OR VOLUNTEERING IN SPECIFIED COMMUNITY CARE FACILITIES FOR
CHILDREN?
PURPOSE
The purpose of this bill is to enact a new misdemeanor
prohibiting persons who are required to register as sex
offenders based upon the commission of an offense against a
child from residing, except as a client, or working or
volunteering in specified community care facilities for
children.
Current law generally requires persons convicted of enumerated
sex offenses to register within five working days of coming into
a city or county, with specified law enforcement officials in
the city, county, or city and county where he or she is
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domiciled, as specified.<1> (Penal Code � 290.)
Current law provides that no person who is required to register
as a sex offender because of a conviction for a crime where the
victim was a minor under 16 years of age shall be an employer,
employee, or independent contractor, or act as a volunteer with
any person, group, or organization in a capacity in which the
registrant would be working directly and in an unaccompanied
setting with minor children<2> on more than an incidental and
occasional basis or have supervision or disciplinary power over
minor children. This subdivision shall not apply to a business
owner or an independent contractor who does not work directly in
an unaccompanied setting with minors. (Penal Code � 290.95(c).)
Current law provides that every person required to register as a
sex offender who applies for or accepts a position as an
employee or volunteer with any person, group, or organization
where the registrant would be working directly and in an
unaccompanied setting with minor children on more than an
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<1> Penal Code section 290(b) provides: "Every person described
in subdivision (c) for the rest of his or her life while
residing in, or, if he or she has no residence, while located
within California, or while attending school or working in
California, as described in section 290.002 and 290.01, shall be
required to register with the chief of police of the city in
which he or she is residing, or if he or she has no residence,
is located, or the sheriff of the county if he or she is
residing, or if he or she has no residence, is located, in an
unincorporated area or city that has no police department, and,
additionally, with the chief of police of a campus of the
University of California, the California State University, or
community college if he or she is residing, or if he or she has
no residence, is located upon the campus or in any of its
facilities, within five working days of coming into, or changing
his or her residence or location within, any city, county, or
city and county, or campus in which he or she temporarily
resides, or, if he or she has no residence, is located."
<2> For purposes of this section, "working directly and in an
unaccompanied setting" includes, but is not limited to,
providing goods or services to minors.
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incidental and occasional basis or have supervision or
disciplinary power over minor children, shall disclose his or
her status as a registrant, upon application or acceptance of a
position, to that person, group, or organization. (Penal Code �
290.95(a).)
Current law provides that every person required to register as a
sex offender who applies for or accepts a position as an
employee or volunteer with any person, group, or organization
where the applicant would be working directly and in an
accompanied setting with minor children, and the applicant's
work would require him or her to touch the minor children on
more than an incidental basis, shall disclose his or her status
as a registrant, upon application or acceptance of the position,
to that person, group, or organization. (Penal Code �
290.95(b).)
Current law prohibits the issuance of a license to operate or
manage a community care facility to a person required to
register as a sex offender, as specified. (Health and Safety
Code � 1522.) In addition to the applicant, this section is
applicable to criminal convictions of the following persons:
(A) Adults responsible for administration or direct
supervision of staff.
(B) Any person, other than a client, residing in the
facility.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or
home health aide, as specified.
(D) Any staff person, volunteer, or employee who has contact
with the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving
in like capacity.
(F) Additional officers of the governing body of the
applicant, or other persons with a financial interest in the
applicant, as determined necessary by the department by
regulation. (Id.)
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Current law 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, as specified. 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. (Health and Safety Code � 1522.01.)
Current law requires that individuals who are volunteer
candidates for mentoring children in foster care settings, as
defined by DSS, shall be subject to a criminal background
investigation prior to having unsupervised contact with the
children. The criminal background check shall be initiated and
conducted pursuant to either Sections 1522 and 1522.1 or Section
1596.603, as applicable. Sections 1522 and 1522.1 may be
utilized by a county social services agency in cooperation with,
or as a component of, a licensed foster family agency. (Health
and Safety Code � 1522.06.)
Current law provides that any person who violates the California
Community Care Facilities Act, as specified, or who willfully or
repeatedly violates any rule or regulation promulgated under the
Act, is guilty of a misdemeanor, as specified, and provides that
operation of a community care facility without a license shall
be subject to a summons to appear in court. (Health and Safety
Code � 1540.)
Current law authorizes the district attorney of every county,
and city attorneys in those cities which have city attorneys who
have jurisdiction to prosecute misdemeanors to, upon their own
initiative or upon application by the state department or its
authorized representative, institute and conduct the prosecution
of any action for violation within his or her county of any
provisions of the California Community Care Facilities Act, as
specified. (Health and Safety Code � 1543.)
This bill would enact a new misdemeanor, providing that persons
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who are required to register as a sex offender based upon the
commission of an offense against a minor would be prohibited
from residing, except as a client, and from working or
volunteering in any of the following:
(1) A foster home or facility that is licensed by the State
Department of Social Services or a county child welfare
services agency.
(2) A certified home of a foster care agency.
(3) A home or facility that receives a placement of a child
who has been, or may be, declared a dependent child of the
juvenile court pursuant to Section 300 of the Welfare and
Institutions Code or Section 602 of the Welfare and
Institutions Code.
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.
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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
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
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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. Author's Amendments
The author has non-substantive amendments for this bill,
principally to add co-authors.
2. Stated Need for This Bill
The author states:
Under current law, individuals seeking a license to
operate a community care facility or others known to
be living or working in licensed facilities or CWS
placements must go through numerous types of
backgrounds checks and would be prohibited from living
or working in these locations if they had been
convicted of a registrable sex offense. However,
according to the State Auditor, state laws could be
strengthened to better ensure that registered sex
offenders do not reside, work, or volunteer in
licensed children's facilities or CWS placements.
According to a recent report by the State Auditor,
CWS: California Can and Must Provide Better Protection
and Support for Abused and Neglected Children (October
2011), when comparing the addresses of individuals in
the Sex Offender Registry with addresses of DSS and
counties' licensed facilities and foster homes, they
found over 1,000 address matches, nearly 600 of which
are considered to be high risk. The auditor provided
the address matches to DSS and, after completing over
800 investigations, it found registered sex offenders
inappropriately living or present in several foster
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homes and other licensed facilities. In October 2011,
DSS indicated that it had begun legal actions against
eight licensees and had issued 36 immediate exclusion
orders barring individuals from licensed facilities.
In six of the eight legal actions, DSS found
registered sex offenders living or present in licensed
facilities. Immediate exclusions were issued for
several reasons including a sex offender owning the
property, a sex offender's spouse being the licensee,
a sex offender living at a licensee's personal
residence, and a sex offender picking up mail at the
facility.
AB 1108 would explicitly prohibit registered sex
offenders 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.
3. What This Bill Would Do
As explained in detail above, this bill would enact a discrete
Penal Code section to prohibit registered sex offenders who have
to register based upon the commission of an offense against a
minor from residing, except as a client, and from working or
volunteering in foster homes for children, as specified. The
penalty for violating this provision would be a misdemeanor.
Existing provisions on the Health and Safety Code arguably can
be construed to provide the same restrictions this bill
proposes. This bill, however, would make this prohibition more
clear, and would include it in the Penal Code.
4. Bureau of State Audits
This bill is in response to an October 2011 report by the State
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Auditor, Child Welfare Services, California Can and Must Provide
Better Protection and Support for Abused and Neglected Children.
That report states in part:
. . . Social Services could make better use of the
Department of Justice's (Justice) Sex and Arson
Registry (sex offender registry) to ensure that sex
offenders are not living or working among children in
the CWS system. We compared the addresses of sex
offenders in this registry with the addresses of
Social Services' and county's licensed facilities, as
well as the addresses of CWS placements, and found
over 1,000 address matches, nearly 600 of which are
high risk and in need of immediate investigation.
. . .
To ensure that vulnerable individuals, including
foster children, are safe from sex offenders, Social
Services should complete a followup on any remaining
address matches our office provided in July 2011 and
take appropriate actions, as well as relay information
to Justice or local law enforcement for any sex
offenders not in compliance with registration laws.
Social Services should conduct regular address
comparisons using Justice's sex offender registry and
its Licensing Information System and CWS/CMS. If
Social Services believes it needs additional resources
to do so, it should justify and seek the appropriate
level of funding. . . . <3>
In response to this audit the Department of Social Services
stated in part:
CDSS agrees that address comparison provides an
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<3> Bureau of State Audits, Child Welfare Services, California
Can and Must Provide Better Protection and Support for Abused
and Neglected Children (October 2011 Report 2011-101.1)
(http://www.bsa.ca.gov/pdfs/reports/2011-101.1.pdf.)
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additional protection for vulnerable clients in care,
and agrees that prevention should be part of the
protection as noted by the BSA later in the report.
There are many key partners within the community of
individuals and agencies responsible for the
prevention and detection of danger to clients in care,
including CDSS and the counties.
We are concerned, however, that performing matches
against every known sex offender address may not be
the most effective means of prevention and ensuring
protection. The process involved in this audit
required CDSS and counties to investigate every known
address of sex offenders, including addresses that
were years and in some cases, decades, out of date.
The California Sex and Arson Registry (CSAR) includes
effective dates of address and identifies active and
inactive addresses, and future processes to compare
addresses therefore should focus on information
technology solutions to minimize the need for staff to
manually search through and verify information. The
CDSS is exploring solutions that leverage technology
and key partners to create an efficient and effective
process to provide this additional protection.
The CDSS and its partners have not waited for an
information technology solution, however. The CDSS
this year began using an evidence-based "key
indicator" inspection tool that enables faster but
still-accurate in-person inspections and thus enables
more of them to occur. Additionally, a number of
related preventative measures already have been
implemented:
Developed and implemented procedures to
check all new licensing applications against the
Megan's Law Website, and to check existing
facility addresses against the Megan's Law
Website prior to an inspection.
Installed additional California Law
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Enforcement Telecommunication System (CLETS)
devices around the state to facilitate
investigations.
Reminded child care licensees about
statutory requirements to include references to
the Megan's Law Website and poster, on both the
Child Care Center notification of Parent's
Rights, and the Family Child Care Home
Notification of Parent's Rights form and poster.
Developed and implemented the MyCCL
Website to send timely alerts to licensees, and
published information about the Megan's Law
Website in the CDSS quarterly licensing
newsletters.
Issued a letter to all licensees
reminding them of their shared responsibility to
ensure the safety of the clients they serve and
to be more aware of their surroundings and
periodically check the Megan's Law Website.<4>
The audit issued by BSA in 2011 is similar to an earlier (2007)
report entitled, "Sex Offender Placement: State Laws Are Not
Always Clear, and No One Formally Assesses the Impact Sex
Offender Placement Has on Local Communities." That report
stated in part:
We also found 49 instances in which the registered
addresses in Justice's database for sex offenders were
the same as the official addresses of facilities
licensed by Social Services that serve children such
as family day care homes. State law requires that
before issuing a license to operate or manage certain
facilities that serve children, Social Services must
review the criminal history of all applicants seeking
licenses, their employees, and all adults residing at
these facilities.
. . .
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<4> Id.
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To ensure that registered adult sex offenders are not
residing in licensed facilities that serve children,
Justice should provide Social Services with the
appropriate identifying information to enable Social
Services to investigate those instances in
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which the registered addresses of sex offenders were
the same as child care or foster care facilities. If
necessary, Justice and Social Services should seek
statutory changes that would permit Justice to release
identifying information to Social Services so that it
may investigate any matches. . . .
In partial response to this audit, SB 583 (Hollingsworth) was
enacted in 2009 and DOJ now provides unique identifier
information as part of its sex offender registry information.<5>
5. Juvenile Court Jurisdiction Over Minors
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 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
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<5> See fn. 9, infra.
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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, � 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 � 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 � 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 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>.)
6. 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
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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.
7. Opposition
Taxpayers for Improving Public Safety, which opposes this bill,
submits in part:
Although there is a need to protect both adults and
minors from (sex offenders), any legislation should be
drafted to be minimally invasive rather than banning
all individuals, some of whom may not be a continuing
threat to public safety. There are simply not enough
volunteers for foster care and any person not an
immediate threat should be allowed to volunteer.
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