BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 606 (De León)
As Amended April 9, 2013
Hearing date: April 30, 2013
Penal Code
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HARASSING A CHILD BECAUSE OF THE EMPLOYMENT OF THE PARENT
HISTORY
Source: Author
Prior Legislation: AB 3592 (Umberg) - Ch. 529, Stats. 1994
Support:California National Organization for Women;
California Police Chiefs Association; California State
Sheriffs Association; former Assemblymember Thomas
Umberg; State Coalition Of Probation Organizations;
Mayor of Los Angeles
Opposition:None known
KEY ISSUES
SHOULD THE PENALTY FOR HARASSING A CHILD BECAUSE OF THE OCCUPATION
OF THE CHILD'S PARENT OR GUARDIAN BE CLASSIFIED AS AN ALTERNATE
FELONY-MISDEMEANOR?
SHOULD COMMISSION OF THIS CRIME BE GROUNDS FOR A CIVIL ACTION?
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PURPOSE
The purposes of this bill are to 1) provide that harassment of a
child because of the employment of the child's parent or
guardian is an alternate felony-misdemeanor; 2) authorize a
misdemeanor fine of up to $10,000; and 3) provide that
commission of this crime shall be grounds for a civil action in
which the parent or legal guardian of the harassed child may
seek actual damages, disgorgement of profits, punitive damages
and attorney's fees.
Existing law includes the crime of making a credible threat of
death or great bodily injury, which includes the following
elements: The defendant made the threat "verbally," in writing
or by means of an electronic communication device and with the
intent that it be taken as a threat; and it appears that that
the defendant had the means and intent to carry out the threat
such that the victim was placed in sustained fear for his own
safety or that of his immediate family. This crime is an
alternate felony-misdemeanor, punishable by a jail term of up to
one year, a fine of up to $1000, or both, or by imprisonment in
a state prison for 16 months, 2 years or 3 years and a fine of
up to $10,000. (Pen. Code § 422.)
Existing law defines the crime of "stalking" as repeatedly
harassing or following another person in conjunction with the
making of a credible threat against that person or his or her
immediate family. Stalking is an alternate felony-misdemeanor
punishable by up to one year in the county jail and/or a fine of
up to $1000, or by imprisonment in state prison for 16 months, 2
or 3 years, and/or a fine of up to $10,000. (Pen. Code §
646.9.)
Existing law provides that a person who has "suffered
harassment" may seek a temporary restraining order and an
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injunction to prevent such harassment. "Harassment" is defined
thus: "[U]nlawful violence, a credible threat of violence, or a
knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, or harasses the person,
and that serves no legitimate purpose. The course of conduct
must be such as would cause a reasonable person to suffer
substantial emotional distress, and must actually cause
substantial emotional distress to the plaintiff." (Code. Civ.
Proc. § 527.6.)
Existing law provides that an employer may seek a temporary
restraining order and injunction on behalf of an employee who
has been harassed at work through unlawful violence or a
credible threat of violence. In the discretion of the court,
the order and injunction can be applied to additional employees
and workplaces of the employer. (Code. Civ. Proc. § 527.8.)
Existing law provides that willfully violating any court order
is the misdemeanor of criminal contempt punishable up to six
months in the county jail and/or a fine of up to $1000. (Pen.
Code § 166, subd. (a)(4).)
Existing law provides that a court may issue an order enjoining
a party from molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing,
telephoning, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of another party,
and, in the discretion of the court, on a showing of good cause
of other named family or household members. (Fam. Code § 6320.)
Willful violation of the order is contempt of court, a
misdemeanor, punishable by imprisonment in a county jail for not
more than one year, by a fine of not more than $1000, or both.
(Pen. Code § 166, subd. (c).)
Existing law provides that it is a misdemeanor for any person to
intentionally harass a child because of the employment status of
the child's parent or parents. The offense is punishable by a
six month jail term, a $1000 fine, or both. A defendant must
serve a jail term of at least five days for a second conviction,
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and at least 30 days for a third or subsequent conviction.
(Pen. Code § 11414, subd. (a).)
Existing law includes the following definitions:
"Harasses" means "knowing and willful conduct directed
at a specific child that seriously alarms, annoys,
torments, or terrorizes the person, and which serves no
legitimate purpose. The conduct must be such as would
cause a reasonable child to suffer substantial emotional
distress, and actually cause the victim to suffer that
distress."
A child, for purposes of this crime, is a person under
the age of 16 years. (Pen. Code
§ 11414, subd. (a).)
This bil l provides that conduct that "serves no legitimate
purpose" includes, but is not limited to, actual or attempted
recording of the child's image or voice without the written
consent of the child's parent or guardian by following the child
or lying in wait and accomplished through following the child or
lying in wait.
This bill defines "employment" as the "job, vocation,
occupation, or profession" of the harassed child's parent or
guardian.
This bill provides that harassing the child or ward of any
person because of the person's employment is an alternate
felony-misdemeanor punishable by a jail term of up to one year,
a fine of up to $1,000, or both, or by felony imprisonment in a
county jail pursuant to Penal Code section 1170, subd. (h), or
in state prison if the defendant is prohibited from serving an
executed felony sentence in jail, and a fine of up to $10,000.
This bill provides that the misdemeanor or felony fine for a
second or subsequent conviction is a maximum of $10,000.
This bill creates a civil cause of action under which the parent
or guardian of a child who was harassed because of the
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employment of the parent or guardian may seek actual damages,
disgorgement of profits, punitive damages and attorney's fees
and costs.
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
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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
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
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1. Need for This Bill
In 1994, AB 3592 (Umberg) was adopted to protect
children who would be susceptible to retaliatory
attacks because of their parents' employment. That
measure made the intentional harassment of a child
because of their parents' employment a misdemeanor.
Assembly Bill 3592 was meant to specifically address
the increased harassment faced by the children of
health care facility employees where abortion
procedures were performed.
The beneficiaries of the law, however, were not solely
healthcare workers. Clearly, there are many other
categories of workers whose children are subject to
retaliatory attacks because of the nature of their
work. For example, the children of public figures are
susceptible to fanatical attention and harassment
because of their parents' occupation.
Indeed, those charged with enforcing our criminal
laws-police, sheriffs, prosecutors, defense attorneys,
judges and jail/prison guards-confront individuals who
harbor vendettas against them on a daily basis. The
most tragic, recent example of the lengths to which
some will go is the February killing spree of former
LAPD officer Christopher Dorner. In his "manifesto,"
Dorner identified over 50 potential targets and their
families, including that of LAPD Capt. Phil
Tingirides, who served on the board of rights that
recommended Dorner's termination from the department.
Once that threat surfaced, Tingirides' six foster
children (the youngest of whom was only 10 years old)
were guarded by round-the-clock protection details
during the ensuing manhunt. This horrific case
highlights the vulnerability of the children of our
law enforcers and the need to provide a strong
impediment against such terrorism.
By making a violation of this statute a wobbler and
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authorizing misdemeanor fines of up to $10,000 for
repeated convictions, SB 606 will have a significant
deterrent effect upon those who would consider
tormenting the most vulnerable and defenseless members
of our society in such a manner as to cause them to
suffer substantial emotional distress.
2. Credible Threats Felony-Misdemeanor in Penal Code Section
422; Christopher Dorner Case
The author's statement refers to the recent case of Christopher
Dorner, the dismissed police officer who threatened 50 officers
and their families and murdered four people in Southern
California. Dorner wrote a "manifesto" that included very clear
threats to stalk and kill his targets and their family members.
For example, Dorner wrote: "Suppressing the truth will leave to
deadly consequences for you and your family. There will be an
element of surprise where you work, live, eat, and sleep ?. I
will conduct DA operations to destroy, exploit and seize
designated targets ? I will utilize every bit of small arms
training, demolition, ordnance, and survival training I've been
given."
It appears that Dorner's threats could have been charged as
felonies under Penal Code section 422, an alternate
felony-misdemeanor under current law. Section 422 defines the
crime of making a credible threat to kill or cause great bodily
injury. The crime applies where the person receiving the threat
is placed in sustained fear for his or her own safety or the
safety of immediate family members. The crime of making a
credible threat appears to be significantly more serious than
the crime considered by this bill, which can involve conduct
that seriously "alarms" or "annoys" a child.
CAN A PERSON BE CONVICTED OF A FELONY UNDER CURRENT LAW FOR
MAKING A CREDIBLE THREAT TO HARM THE FAMILY MEMBER OF THE PERSON
RECEIVING THE THREAT?
3. Criminal Prosecutions for Harassment and Civil Injunctions to
Prevent Harassment
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Committee staff has not found any reported appellate cases
interpreting or applying the existing statute defining the
misdemeanor for harassment of a child because of the employment
of the child's parent or guardian. As the offense is a
misdemeanor, appeals of convictions would be heard by the
appellate division of the superior court, not the Court of
Appeal, and these decisions are not often published.
There are many cases considering the application of Code of
Civil Procedure 527.6, which authorizes a person who is being
harassed to obtain an injunction against his or her harasser. A
1997 decision explained:
Section 527.6 was enacted to provide an expedited
procedure for preventing "harassment" as defined. The
motivation for the statute was the experience of a
young woman who was hounded by a male admirer who
followed her, incessantly telephoned her, etc. The
statute was designed to provide a quick and simple
procedure by which this type of wholly unjustifiable
conduct, having no proper purpose, could be enjoined.
The statute is limited to protecting only those who
have suffered "substantial emotional distress" caused
by conduct "which serves no legitimate purpose." (§
527.6, subd. (b), defining "harassment.") Nothing in
the statute indicates that it was intended to supplant
normal injunctive procedures applicable to cases
concerning issues other than "harassment" as
statutorily defined. (Byers v. Cathcart (1997) 57
Cal.App.4th 805, 811, citations omitted.)
WOULD THE BEHAVIOR COVERED BY THIS BILL BE SUBJECT TO AN
INJUNCTION TO PREVENT HARASSMENT PURSUANT TO CODE OF CIVIL
PROCEDURE SECTION 527.6?
4. First Amendment Issues
This bill may be challenged on First Amendment free speech
grounds. Courts have long held that speech and expressive
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conduct concerning public issues and politics are entitled to
great protection under the First Amendment. (Burson v. Freeman
(1992) 504 U.S. 191, Perry Ed. Assn. v. Perry Local Educators'
Assn. (1983) 460 U.S. 37, 45.) Defendants charged with
harassing the children of politicians, abortion providers and
other persons involved in public affairs or socially sensitive
issues could attempt to raise First Amendment issues. However,
the bill and existing law concern the children of the target of
the defendant's conduct, not the public figure. A person
arguably has no protectable political speech interest in
communication with or expressive conduct toward the child of a
person involved in a public issue. Further, the United States
Supreme Court has held that expressive conduct intended to
intimidate is not protected by the First Amendment. (Virginia
v. Black (2003) 538 U.S. 343.)
5. Sentencing Issues
This bill would authorize felony punishment for a crime that is
now a misdemeanor and authorizes a maximum misdemeanor fine of
$10,000. Specifically, the bill would authorize a felony
sentence of 16 months, two years or three years. Defendants
convicted of this crime who do not have a prior serious, violent
or sex offense would serve any executed sentence in jail.
Others would serve the term in prison. There appears to be no
data on the prevalence of this crime as a misdemeanor. Thus,
there is no data available to estimate if or how the bill might
affect jail and prison populations. Members may wish to
consider the potential impact of this sentencing increase on the
prison population.
In addition to custody capacity issues, Committee members may
wish to consider whether or not a felony penalty is appropriate
for this offense, especially in comparison with other wobbler
offenses. Representative wobblers include assault with a deadly
weapon or firearm, grand theft (generally exceeding $950 in
value) and possession of methamphetamine.
ARE FELONY PENALTIES APPROPRIATE FOR HARASSING A CHILD BECAUSE
OF THE OCCUPATION OF THE CHILD'S PARENT?
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HOW DOES THIS CRIME COMPARE WITH OTHER ALTERNATE
FELONY-MISDEMEANORS?
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This bill also would authorize a fine of up to $10,000 for a
misdemeanor conviction. The standard maximum fine for a
misdemeanor is $1,000. Penalty assessments of approximately
280% of the base fine are added to each criminal fine. Thus,
the actual amount a convicted defendant would pay for a maximum
misdemeanor fine under this bill is $38,000: $10,000 plus 280%
of $10,000, or $28,000.
IS A MISDEMEANOR FINE OF UP TO $10,000 - $38,000 WITH MANDATORY
PENALTY ASSESSMENTS - APPROPRIATE FOR HARASSING A CHILD BECAUSE
OF THE OCCUPATION OF THE CHILD'S PARENT OR GUARDIAN?
6. Fines and Punitive Civil Damages - Profit Motive of
Perpetrators; Deterrence
In discussions with representatives of the sponsor, it was noted
that this bill could apply to paparazzi - photographers and
videographers who capture images of celebrities and their
children for profit. The bill specifically refers to such
conduct, although the bill also refers more generally to other
forms of harassment. The very high actual fines authorized by
this bill and the availability of punitive damages to the parent
of the child in a civil action defined or created by this bill
could be a substantial financial penalty and disincentive for
those who are motivated by profit.
It is often argued that bills increasing penalties deter crime.
This bill raises the penalty for harassing a minor because of
the employment of the child's parent or guardian from a
misdemeanor to an alternate misdemeanor and raises the maximum
misdemeanor fine from $1,000 to $10,000.
The deterrent value of the bill depends on 1) potential
perpetrators knowing about the penalty, and 2) those persons
deciding to avoid the penalty by not to harass a minor because
of the occupation of the child's parent or guarding.
Criminologists generally accept the general deterrence of
criminal statutes - the tendency of people to avoid doing acts
that would subject them to criminal penalties. Criminologists
have, however, long been skeptical of the value of special
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deterrence - deterring commission of a particular crime through
the specific penalty for that crime.<1> Research appears to
clearly establish that certainty of punishment is a much more
effective deterrent than the severity of punishment.<2>
Discussions of deterrence in research have noted that the theory
of deterrence depends on potential criminals making rational
decisions based on risk and reward. However, people who commit
crimes often do not act rationally or wisely. For example,
researchers have reported that half of all state prison inmates
were under the influence of alcohol or drugs when they committed
their crimes.<3>
Nevertheless, as noted above, this bill could apply to paparazzi
who are motivated by profit. These persons would not be acting
on impulse or under the influence of alcohol or drugs. They
could well calculate the financial risks created by the fines,
disgorgement of profits and punitive damages in this bill.
WOULD THE INCREASED PENALTIES IN THIS BILL BE A DETERRENT?
COULD PAPARAZZI WHO HARASS THE CHILDREN OF CELEBRITIES IN ORDER
TO OBTAIN AND SELL IMAGES OF THEM BE DISSUADED BY THE FINES,
LOSS OF PROFITS AND PUNITIVE DAMAGES IN THIS BILL?
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<1> http://bjc.oxfordjournals.org/content/21/2/136.extract
<2>
http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf
<3>
http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf
, p.2
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