BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
AB 2411 (Bonta) - Probation and parole.
Amended: June 26, 2014 Policy Vote: Public Safety 7-0
Urgency: Yes Mandate: Yes
Hearing Date: August 4, 2014
Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 2411, an urgency measure, would require
participation in, or completion of, a sex offender management
program (part of the Containment Model enacted in 2010 as part
of "Chelsea's Law") for all persons placed on formal probation
or parole, without regard to when their crime or crimes were
committed.
Fiscal Impact:
Continued ongoing costs (General Fund) to the Department of
Corrections and Rehabilitation (CDCR) to provide sex
offender management programs as a condition of parole for
defendants whose offenses occurred prior to September 9,
2010.
Potential non-reimbursable costs (Local) for probation
departments to provide sex offender management programs as a
condition of probation for defendants whose offenses
occurred prior to September 9, 2010. Costs are estimated to
be non-reimbursable to the extent the treatment program
activities are considered punishment for the crime, as
changes to the penalty for a crime are not reimbursable
under Government Code § 17556.
Background: One of the provisions enacted as part of "Chelsea's
Law," in 2010 amended Penal Code (PC) § 1203.067 to require the
terms of probation or parole for all persons placed on formal
probation or parole for an offense that requires registration as
a sex offender to include, among other things, participation in,
or completion of, a sex offender management program, as
specified, for not less than one year, with the length of the
period in the program to be determined by the certified sex
offender management professional in consultation with the
probation or parole officer and as approved by the court.
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In the case of People v. Douglas M. (2013) 220 Cal.App.4th 1068,
defendant Douglas M. appealed an order by the court modifying
his probation terms pursuant to the amended PC § 1203.067,
contending that the trial court erred when it applied the
provisions of he amended PC § 1203.067 to modify the terms and
conditions of his probation based on crimes that were committed
prior to the enactment of the amended provision of law.
Douglas M. was convicted in 2006 to 10 years in state prison for
committing offenses in 2005 and 2006. The court suspended
execution of sentence and placed the appellant on formal
probation for seven years. In 2009, the trial court transferred
probation supervision to another county, and in 2012, over
defense counsel's objections, the trial court modified the terms
and conditions of appellant's probation, pursuant to amended PC
§ 1203.067.
On October 24, 2013, the court ruled that amended PC § 1203.067
may not be applied retroactively. The court's analysis stated in
part, the following:
Section 3 [of the Penal Code] provides: No part of the
Penal Code is retroactive, unless expressly so
declared. Our Supreme Court has described section 3,
and its identical counterparts in other codes (e.g.,
Civil Code § 3, Code of Civil Procedure § 3), as
codifying the time-honored principle?that in the
absence of an express retroactivity provision, a
statute will not be applied retroactively unless it is
very clear from extrinsic sources that the
Legislature? must have intended a retroactive
application. In applying this principle, we have been
cautious not to infer retroactive intent from vague
phrases and broad, general language in statutes.
Consequently, a statute that is ambiguous with respect
to retroactive application is construed? to be
unambiguously prospective?in the present case,
appellant argues that in light of section 3's
presumption of prospectivity, the most tenable
construction is that revised section 1203.067 applies
to all probationers whose offenses occurred on or
after September 9, 2010, including both those already
on probation as of July 1, 2012, and those granted
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Page 2
probation after that date.
In sum, there is nothing in either the language of the
statute or its legislative history clearly indicating
a legislative intent for revised section 1203.067 to
be applied retroactively to probationers whose crimes
occurred before its effective date. Moreover, to
construe the statute as applying to those probationers
would raise serious constitutional questions under the
federal and state ex post facto clauses. Therefore, in
keeping with the mandate of section 3, the amended
statute must be viewed as "unambiguously prospective,"
applying to probationers who committed their crimes on
or after the statute's effective date of September 9,
2010.
The California Supreme Court denied review of the case on
January 21, 2014, thereby leaving the Court of Appeals decision
to stand. Another similar case was filed on January 28, 2014,
People v. Orlando Espinoza, appealing a court order modifying
the appellant's probation pursuant to amended PC § 1203.067. As
concluded in the Douglas M case, the court struck the new terms
and conditions of the appellant's probation, stating that
"because the presumption of prospectivity of Penal Code
statutes, mandated by section 3, cannot be rebutted, the
provisions of revised Section 1203.067 may not be applied
retroactively to probationers like appellant, who committed
their offenses before the effective date of the amendment."
Proposed Law: This bill, an urgency measure, would require
participation in a sex offender management program, as
specified, for all persons placed on formal probation or parole,
without regard to when his or her crime or crimes were
committed. Specifically:
For persons placed on formal probation for an offense
that requires registration as a sex offender:
o Persons placed on formal probation prior to
July 1, 2012, shall participate in an approved sex
offender management program, following specified
standards that have been developed, for a period of
not less than one year or the remaining term of
probation if it is less than one year. This bill
specifies that participation in this program applies
to every person described without regard to when his
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Page 3
or her crime or crimes were committed.
o Persons placed on formal probation on or after
July 1, 2012, shall successfully complete a sex
offender management program, following specified
standards, as a condition of release from probation.
The length of the period in the program shall not be
less than one year, up to the entire period of
probation, as specified. This bill specifies that
participation in the program applies to each person
without regard to when his or her crime or crimes were
committed.
For persons placed on formal parole for an offense that
requires registration as a sex offender:
o Persons placed on formal parole prior to July
1, 2012, shall participate in an approved sex offender
management program, following specified standards that
have been developed, for a period of not less than one
year or the remaining term of parole if it is less
than one year. This bill specifies that participation
in this program applies to every person described
without regard to when his or her crime or crimes were
committed.
o Persons placed on formal parole on or after
July 1, 2012, shall successfully complete a sex
offender management program, following specified
standards, as a condition of parole. The length of the
period in the program shall not be less than one year,
up to the entire period of parole, as specified. This
bill specifies that participation in the program
applies to each person without regard to when his or
her crime or crimes were committed.
Prior Legislation: AB 1844 (Fletcher) Chapter 219/2010, enacted
the Chelsea King Child Predator Prevention Act of 2010, also
known as "Chelsea's Law" which increases penalties for forcible
sex acts against minors, provides for life imprisonment without
the possibility of parole for specified sex offenses against
minors that include aggravating factors, mandates lifetime
parole for persons convicted of certain sex crimes against
minors, and creates safe zones around parks. This bill also
included the containment model provisions at issue in this bill.
Staff Comments: By applying the requirement for specified
persons who are placed on formal parole or probation to
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Page 4
participate or complete a sex offender management program to
defendants who committed their crimes prior to the enactment of
Chelsea's Law (September 9, 2010), this bill could potentially
result in state costs to CDCR and local costs to probation
departments that otherwise would not have been incurred
prospectively under existing law.
Although offenders are required to pay for the costs of
participation, to the extent they are unable to pay, CDCR and
the counties must take on these costs. As noted in the Sex
Offender Management Board (SOMB) Report on Chelsea's Law (2013):
Unless there is supplemental funding available
from California's counties to defray the expenses
of sex offender treatment for probationers who
cannot pay the full expense, it seems likely that
the challenge of having sufficient treatment
resources will continue. Although CDCR obtained
funding for the mandated treatment programs for
high risk sex offenders, no such funding was
provided for lower risk parolees, or for any
indigent sex offenders on probation caseloads.
Implementing the Containment Model for any
individual sex offender is impossible unless the
individual is actually engaged in treatment. As
noted above, many sex offenders on probation have
insufficient funds to pay for treatment. The
problem of indigent sex offenders who cannot pay
for their treatment will need to be addressed and
resolved if Containment is ever to be fully
implemented in California, as mandated by
Chelsea's Law.
While the CDCR indicates that the provisions of this bill are
consistent with existing practices, to the extent inmates who
committed their crimes prior to September 9, 2010, appeal the
imposition of the Containment Model requirements, the provisions
of this bill requiring the imposition of sex offender management
program participation/completion to be applied retroactively
could result in additional state costs that would not have
otherwise been incurred under existing law.
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The additional costs to local agencies to provide sex offender
management programs as a condition of probation to inmates whose
crimes were committed prior to September 9, 2010, are estimated
to be non-reimbursable, as under Government Code § 17556, costs
associated with changes to the punishment/penalty for a crime
are not reimbursable by the state. However, should the costs
associated with the Containment Model's treatment program
requirements not be considered punishment or penalty for the
crime, these costs could potentially be considered reimbursable
by the state.