BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 606
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          Date of Hearing:   June 25, 2013
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    SB 606 (De Leon) - As Amended:  June 20, 2013
                       As Proposed to be Amended in Committee

           
          SUMMARY  :  Increases the penalties for the intentional harassment  
          of a child or ward of another person because of that person's  
          employment, and specifies that conduct occurring during the  
          recording of the child's image or voice is per se harassment if  
          specified conditions occur.  Specifically,  this bill  :  

          1)Increases the maximum jail time for harassment of a child or  
            ward because of the person's employment from six months in the  
            county jail to a year in the county jail.  

          2)Specifies that conduct occurring during the course of  
            recording a child's image or voice, due to the employment of  
            the child's parent or guardian, without written consent of the  
            child's guardian is per se harassment of a child if that  
            conduct would cause a reasonable child to suffer substantial  
            emotional stress, and actually causes the child to suffer  
            substantial emotional distress.  

          3)Increases the maximum fines for harassment of a child as  
            follows: 

             a)   Up to ten thousand dollars ($10,000) for a first  
               offense.  

             b)   Up to twenty thousand dollars ($20,000) for a second  
               offense.  

             c)   Up to thirty thousand dollars ($30,000) for a third or  
               subsequent offense.  

          4)Creates a civil cause of action for the parent or legal  
            guardian of the child, as specified.  










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           EXISTING LAW  :  
           
           1)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, and at least 30 days for a third or subsequent  
            conviction.  [Penal Code Section 11414(a).]
           
           2)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.  (Penal Code Section 422.)
           
           3)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.  (Penal  
            Code Section 646.9.)
           
           4)Provides that a person who has "suffered harassment" may seek  
            a temporary restraining order and an 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."  (California Code of  
            Civil Procedure Section 527.6.)
           
           5)Provides that an employer may seek a temporary restraining  








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            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.  (California Code of Civil  
            Procedure Section 527.8.)
          
           6)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.  [Penal Code  
            Section 166(a)(4).]  

           7)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.  (California Family  
            Code Section 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.  [Penal Code Section 166(c).]
           
           8)Defines "harasses" as "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.  [Penal  
            Code Section 11414(a).]  

          FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  "Senate Bill 606 expands upon and  
            improves current law by increasing the penalties for the  
            intentional harassment of a child because of his or her  
            parents' employment. In 1994, AB 3592 (Umberg) was passed to  
            address the increased harassment faced by the children of  
            health care facility employees where abortion procedures were  
            performed. 








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            "The beneficiaries of the law, however, were not solely  
            healthcare workers. Certainly, the children of many other  
            categories of workers may become targets of retaliatory  
            attacks because of the nature of their parents' work.  
            Undeniably, the children of public figures are often the  
            victims of fanatical attention and harassment. And those  
            charged with enforcing our laws-police officers, judges,  
            attorneys-must daily confront individuals who may harbor  
            vendettas against not only them, but also their families.

            "Although AB 3592 has been on the books for nearly 20 years,  
            children continue to fall prey to intentional harassment  
            because the law provided for relatively weak penalties. No  
            child, regardless of his or her parent's occupation, should be  
            subjected to such unwarranted and harmful persecution. 

            "By setting mandatory minimum terms and authorizing fines of  
            up to $10,000 for repeated violations, SB 606 will have a  
            significant deterrent effect on those who would consider  
            tormenting the most vulnerable and defenseless members of our  
            society."

           2)First Amendment Issues  :  This bill may be challenged on First  
            Amendment free speech grounds.  This bill arguably makes  
            conduct, whereby a citizen is engaged in a constitutionally  
            protected act, criminal.  The bill specifies explicitly,  
            conduct occurring during the course of recording a child's  
            image or voice, due to the employment of the child's parent or  
            guardian, without written consent of the child's guardian is  
            per se harassment.   This language is arguably  
            unconstitutionally vague and overbroad as it applies to speech  
            which is commonly protected under the First Amendment to the  
            U.S. Constitution.  Courts have long held that speech and  
            expressive 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  








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            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.)  
           
           3)Credible Threats Felony-Misdemeanor in Penal Code Section 422;  
            Christopher Dorner Case:   The author's background 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.

           4)Criminal Prosecutions for Harassment and Civil Injunctions to  
            Prevent Harassment  :  No reported appellate case has been found  
            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:









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               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.)  
                
           5)Argument in Support  :  According to the  California State  
            Sheriffs' Association  , "We are pleased to support SB 606,  
            which would make it a crime for any person who intentionally  
            harasses the child or ward of any other person because of that  
            person's employment, or attempts to record a child's image or  
            voice, or both, without the written consent of the child's  
            parent or legal guardian, by following the child's activities  
            or lying in wait.
             
             "Unfortunately, children of law enforcement officers have been  
            targeted for harassment and threats of violence due to the  
            employment of their parents.  We are pleased to support this  
            measure that increases the protection of those children."

           6)Argument in Opposition:   According to the  National Press  
            Photographers Association  , "We believe the increased penalties  
            and liabilities related to such actions improperly abridges  
            first Amendment protected activity occurring in traditional  
            public forums and other places where a person normally has no  
            reasonable expectation of privacy.  We are also extremely  
            concerned that the bill as it pertains to photography and  
            recording is overly broad and vague and infringes upon  
            otherwise protected forms of speech and expression.  
             
             "The definitions used such as 'harassment,' annoys and  
            alarms,' 'no legitimate purpose' and 'reasonable child' are  
            themselves vague and susceptible to subjective interpretation.  








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             As noted by the U.S. Supreme Court vagueness or absence of  
            scienter may be cause for invalidating a law that abridges  
            first Amendment protected activity.  'stricter standards of  
            permissible statutory vagueness may be applied to a statute  
            having a potentially inhibiting effect on speech?" Smith v.  
            California, 361 U.S. 147 (1959) quoting Winters v. New York,  
            333 U.S., 507 (1948).  We also believe harassment concerns are  
            properly addressed by current California law and that  
            additional criminal penalties, enhanced civil liability and  
            disproportionate fines will further chill free speech and  
            create uncertainty."  
             
           7)Prior Legislation  :  AB 2479 (Bass), Chapter 685, Statutes of  
            2010, provided that a person who commits "false imprisonment"  
            with the intent to capture any type of visual image, sound  
            recording, or other physical impression of a plaintiff is  
            subject to liability under the civil invasion of privacy  
            statute and, as such, liable for damages and remedies  
            available pursuant to that statute, as specified.
           

          REGISTERED SUPPORT / OPPOSITION :   

           Support 
           
          California Medical Association 
          California Police Chiefs Association
          California Psychological Association 
          California State Sheriff's Association
          Crime Victims United   
          Los Angeles County Sheriff's Office 
          Los Angeles District Attorney's Office 
          National Organization for Women, California 

          One private individual.  

           Opposition 
           
          California Broadcasters Association 
          California Newspaper Publishers Association 
          Motion Picture Association 
          National Press Photographers Association 
          Taxpayers for Improving Public Safety
           
          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  








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          319-3744