BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 838| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: CONTINUED SB 838 Page 2 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 CONTINUED SB 838 Page 3 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. CONTINUED SB 838 Page 4 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 CONTINUED SB 838 Page 5 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 CONTINUED SB 838 Page 6 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 **** END **** CONTINUED SB 838 Page 7 CONTINUED