BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  SB 838
          Author:   Beall (D), et al.
          Amended:  5/27/14
          Vote:     27

           
           SENATE PUBLIC SAFETY COMMITTEE  :  6-0, 4/29/14
          AYES: Hancock, Anderson, Knight, Liu, Mitchell, Steinberg
          NO VOTE RECORDED: De León

           SENATE APPROPRIATIONS COMMITTEE  :  7-0, 5/23/14
          AYES:  De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg


           SUBJECT  :    Crimes:  sex offenses:  juvenile hearing

           SOURCE  :     Santa Clara County District Attorney


           DIGEST  :    This bill enacts a one-year sentence enhancement and  
          imposes additional fines for persons convicted of a sex crime,  
          as specified; expands the list of criminal offenses subject to  
          court proceedings to include sex crimes involving an unconscious  
          or disabled victim; requires the court to order mandatory  
          out-of-home placement to an authorized placement facility, where  
          for a minimum of two years where minor will receive sex offender  
          treatment; and prohibits eligibility for deferred entry of  
          judgment (DEJ) for minors charged with specified sex crimes.

           ANALYSIS  :    

          Existing law: 

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          1.Makes it an offense for a person to willfully threaten to  
            commit a crime which will result in death or great bodily  
            injury to another person, with the specific intent that the  
            statement, made verbally, in writing, or by means of an  
            electronic communication device, is to be taken as a threat,  
            and causes that person reasonably to be in fear for his/her  
            own safety or for his/her immediate family's safety. 

          2.Makes it an offense for a person who uses a concealed  
            camcorder, motion picture camera, or photographic camera of  
            any type, to secretly videotape, film, photograph, or record  
            by electronic means, another, identifiable person who may be  
            in a state of full or partial undress, for the purpose of  
            viewing the body of, or the undergarments worn by, that other  
            person, without the consent or knowledge of that other person,  
            in any area in which that other person has a reasonable  
            expectation of privacy, with the intent to invade the privacy  
            of that other person.

          3.Provides that any person under 18 years of age who commits a  
            crime is within the jurisdiction of the juvenile court, except  
            as specified. 

          4.Enumerates certain crimes for which a minor 14 years of age or  
            older may be prosecuted under the general law in a court of  
            criminal jurisdiction.

          5.States, as amended by Proposition 21, an initiative statute  
            approved by the voters at the March 7, 2000 primary election,  
            juvenile court hearings are closed to the public, except for  
            juvenile court hearings alleging the commission of specified  
            felonies.  The Legislature may amend Proposition 21 by a  
            statute passed in each house by a 2/3-vote.

          6.Sets forth a list of 30 offense categories, commonly referred  
            to as "707(b) offenses," which carry a number of consequences  
            in terms of how a minor and his/her alleged criminal act is  
            handled in the juvenile system, including remand to adult  
            criminal court, as specified.   

          This bill:

          1.Provides that a person convicted of a specified sex offense  
            who, with the intent to intimidate, harass, humiliate, or  

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            bully the victim, uses social media, including, but not  
            limited to, posting photographs online or sharing cellular  
            telephone photographs of the incident that resulted in the  
            conviction, or posting messages online or sharing telephone  
            messages pertaining to the incident shall, in addition to any  
            other punishment imposed for that conviction, be punished by  
            an additional term of incarceration or additional fine, as  
            follows:

             A.   For a felony conviction, the offender shall be punished  
               by an additional consecutive year in prison, or by a fine  
               not exceeding $10,000, or both.

             B.   For a misdemeanor conviction, the offender shall be  
               punished by an additional fine not exceeding $5,000.

          1.Provides that juvenile court proceedings be open to the public  
            in cases involving an alleged sex crime committed against a  
            victim unable to resist due to being rendered unconscious by  
            an intoxicating, anesthetizing, or controlled substance, or  
            when the victim is at the time incapable, because of a  
            disability, of giving consent, as specified.

          2.Provides that minors who have committed specified sex crimes  
            in which the victim was prevented from resisting due to being  
            rendered unconscious, as specified, or when the victim was at  
            the time incapable because of a disability of giving consent,  
            and that was known or reasonably should have been known to the  
            minor at the time of the offense, shall be ordered to  
            out-of-home placement for a minimum of two years to a juvenile  
            hall, ranch, camp, institution operated by a county juvenile  
            probation department, where the minor shall receive treatment,  
            including sex offender treatment.

          3.Prohibits eligibility for DEJ for minors charged with  
            specified sex crimes in which the victim was prevented from  
            resisting due to being rendered unconscious, as specified, or  
            when the victim was at the time incapable of giving consent,  
            as specified, and that was known or reasonably should have  
            been known to the minor at the time of the offense.

          4.States that this bill shall be known, and may be cited, as  
            Audrie's Law.


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           Background  

          This bill is the direct result of the tragic death of Audrie  
          Pott, a 15-year-old Saratoga High student who committed suicide  
          after she was sexually assaulted while unconscious and photos of  
          her were disseminated electronically.  Her assailants were tried  
          as juveniles.  The allegations against them were sustained and  
          they handed down sentences of 30 to 45 days, news reports said.   
          Despite the severity of their crimes, they are freed from having  
          to register sex offenders due to an omission in the law. 

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

           Unknown, potential future increase in state prison costs  
            (General Fund) for the one-year sentence enhancement on adult  
            convictions for registerable felony sex offenses meeting  
            specified criteria.  The sentence enhancement would not apply  
            to adjudications, as terms for wards committed to the Division  
            of Juvenile Facilities are for indeterminate terms. 

           Potential increase in court workload (General Fund*) to open  
            additional court proceedings to the public, as well as  
            offsetting reduced workload for courts to consider DEJ  
            eligibility for fewer cases, as additional cases under this  
            bill's provisions would automatically be ineligible for DEJ  
            consideration.

           Potentially significant increase in local agency costs (Local)  
            to the extent placements are made to juvenile halls or  
            camps/ranches that otherwise would have been granted DEJ and  
            sentenced to probation.  The weighted statewide average cost  
            of a two-year minimum term in local juvenile facilities is  
            estimated in the range of $210,000 to $260,000 per juvenile.  

          *Trial Court Trust Fund

           SUPPORT  :   (Verified  5/27/14)

          Santa Clara County District Attorney (source)
          American Association of University Women-California
          Association of Regional Center Agencies

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          California Police Chiefs Association, Inc.
          California Protective Parents Association
          Counseling and Support Services for Youth
          Crime Victims United of California
          The Arc and United Cerebral Palsy California Collaboration
          The United Cerebral Palsy

           OPPOSITION  :    (Verified  5/27/14)

          American Civil Liberties Union
          California Attorneys for Criminal Justice
          California Public Defenders Association
          Children's Defense Fund-California
          Ella Baker Center for Human Rights
          Human Rights Watch
          Legal Services for Prisoners with Children
          National Center for Youth Law
          Taxpayers for Improving Public Safety
          Youth Law Center

           ARGUMENTS IN SUPPORT  :    According to the author:

            Senate Bill 838 is the direct result of the tragic death of  
            Audrie Pott, a 15-year-old Saratoga High student who committed  
            suicide after she was sexually assaulted while unconscious and  
            photos of her were disseminated electronically.  The  
            perpetrators, according to news reports, were tried as  
            juveniles and the allegations against them were sustained, and  
            released after serving 30- to 45-day sentences.  They are free  
            to continue their lives, education, and careers in anonymity  
            thanks to outdated laws after publically destroying a young  
            women's life.

            The incidents surrounding Audrie's death are not isolated but  
            reflect a disturbing trend.  Her case is eerily similar to the  
            suicide of Rehtaeh Parsons, a 17-year-old student in Canada,  
            who suffered nearly two years of bullying as photos of her sex  
            assault were circulated by students, and the photographed rape  
            of an unconscious 16-year-old girl by two high school football  
            players in Steubenville, Ohio. It should be noted that the  
            identities of the convicted football players, both 16, were  
            released by the juvenile court.

            The nature of the crimes against Audrie, coupled with the  

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            growing use of social media to bully victims, demands that our  
            statutes and codes be amended to reflect the severity of these  
            offenses in the 21st century to not only give justice but to  
            act as a deterrent.

           ARGUMENTS IN OPPOSITION  :    The Legal Services for Prisoners  
          with Children states:

            By tying the court's hands, this bill would increase the  
            number of teenagers removed from their homes and placed in  
            detention facilities.  We believe that this increase would  
            come at a high human cost, as well as a high financial cost to  
            the state.  Being removed from his or her home and placed in a  
            detention facility with other, possibly older, troubled and  
            violent offenders is a highly traumatic experience for a  
            teenager-and the court should maintain its discretion to  
            decide whether or not it is the appropriate sentence to impose  
            in any given case.  By uniformly mandating the disruption of a  
            teenager's home life, forcing him or her to be housed in a  
            detention facility, and preventing him or her from maintaining  
            or developing positive support systems within the community he  
            or she will return to, this bill would force the court to  
            deprive many teenagers of their best opportunity for  
            rehabilitation and accountability.  This lost opportunity  
            would come at a great cost:  imprisoning and detaining young  
            people can have a severely detrimental effect on them, their  
            long-term economic productivity, and the productivity and  
            health of their communities.  Detaining young people can also  
            increase their risk for recidivism later in life, and with  
            increased recidivism comes increased arrest, trial, and  
            detention costs.  This is all in addition to the price tag of  
            housing a young person in a Department of Juvenile Justice  
            facility-an average cost of $125,000 per youth, per year. 


          JG:k  5/27/14   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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