BILL ANALYSIS Ó
AB 201
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Date of Hearing: January 12, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
201 (Brough) - As Amended April 21, 2015
SUMMARY: Allows cities and counties to adopt ordinances, rules
or regulations that are more restrictive than state law
regarding the ability of people who are required to register as
sex offenders to reside or be present at certain locations
within the city or county. Specifically, this bill:
1)Provides that a local agency is not preempted by state law
from enacting and enforcing an ordinance that restricts a
person required to register as a sex offender, pursuant to
existing law, from residing or being present at certain
locations within the local agency's jurisdiction.
2)Allows a local agency to adopt ordinances, rules, or
regulations that are more restrictive than state law relating
to the ability of a person required to register as a sex
offender to reside or be present at certain locations within
the local agency's jurisdiction.
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3)Defines, for the purposes of this bill, "local agency" to mean
a city, county, or city and county.
EXISTING LAW:
1)Requires persons convicted of enumerated sex offenses to
register within five working days of coming into a city or
county, with specified law enforcement officials in the city,
county, or city and county where he or she is domiciled, as
specified. (Pen. Code, § 290.)
2)Provides that it is unlawful for any registered sex offender
to reside within 2,000 feet of any public or private school,
or park where children regularly gather. Further states that
nothing in this section shall prohibit municipal jurisdictions
from enacting local ordinances that further restrict the
residency of any sex registrants. (Pen. Code, § 3003.5.)
3)Requires persons convicted of specified sex offenses to
register for life, or re-register if the person has been
previously registered, upon release from incarceration,
placement, commitment, or release on probation. States that
the registration shall consist of all of the following (Pen.
Code, § 290.015, subd. (a).):
a) A statement signed in writing by the person, giving
information as shall be required by the Department of
Justice (DOJ) and giving the name and address of the
person's employer, and the address of the person's place of
employment, if different from the employer's main address;
b) Fingerprints and a current photograph taken by the
registering official;
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c) The license plate number of any vehicle owned by,
regularly driven by or registered in the name of the
registrant;
d) Notice to the person that he or she may have a duty to
register in any other state where he or she may relocate;
and,
e) Copies of adequate proof of residence, such as a
California driver's license or identification card, recent
rent or utility receipt or any other information that the
registering official believes is reliable.
4)States every person who is required to register, as specified,
who is living as a transient shall be required to register for
the rest of his or her life as follows:
a) He or she shall register, or reregister if the person
has previously registered, within five working days from
release from incarceration, placement or commitment, or
release on probation, pursuant to Penal Code Section
290(b), except that if the person previously registered as
a transient less than 30 days from the date of his or her
release from incarceration, he or she does not need to
reregister as a transient until his or her next required
30-day update of registration. If a transient is not
physically present in any one jurisdiction for five
consecutive working days, he or she shall register in the
jurisdiction in which he or she is physically present on
the fifth working day following release, as specified.
Beginning on or before the 30th day following initial
registration upon release, a transient shall reregister no
less than once every 30 days thereafter. A transient shall
register with the chief of police of the city in which he
or she is physically present within that 30-day period, or
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the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no
police department, and additionally, with the chief of
police of a campus of the University of California, the
California State University, or community college if he or
she is physically present upon the campus or in any of its
facilities. A transient shall reregister no less than once
every 30 days regardless of the length of time he or she
has been physically present in the particular jurisdiction
in which he or she reregisters. If a transient fails to
reregister within any 30-day period, he or she may be
prosecuted in any jurisdiction in which he or she is
physically present.
b) A transient who moves to a residence shall have five
working days within which to register at that address, in
accordance with Penal Code Section 290(b). A person
registered at a residence address in accordance with that
provision who becomes transient shall have five working
days within which to reregister as a transient in
accordance with existing law.
c) Beginning on his or her first birthday following
registration, a transient shall register annually, within
five working days of his or her birthday, to update his or
her registration with the entities described in existing
law. A transient shall register in whichever jurisdiction
he or she is physically present on that date. At the 30-day
updates and the annual update, a transient shall provide
current information as required on the DOJ annual update
form, including the information.
d) A transient shall, upon registration and
re-registration, provide current information as required on
the DOJ registration forms, and shall also list the places
where he or she sleeps, eats, works, frequents, and engages
in leisure activities. If a transient changes or adds to
the places listed on the form during the 30-day period, he
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or she does not need to report the new place or places
until the next required re-registration. (Pen. Code, §
290.011, subds. (a) to (d).)
5)Provides that willful violation of any part of the
registration requirements constitutes a misdemeanor if the
offense requiring registration was a misdemeanor, and
constitutes a felony of the offense requiring registration was
a felony or if the person has a prior conviction of failing to
register. (Pen. Code, § 290.018, subds. (a)&(b).)
6)Provides that within three days thereafter, the registering
law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the DOJ. (Pen. Code § 290.015, subd. (b).)
7)States that a misdemeanor failure to register shall be
punishable by imprisonment in a county jail not exceeding one
year, and a felony failure to register shall be punishable in
the state prison for 16 months, two or three years. (Pen.
Code, § 290.018, subds. (a)&(b).)
8)Provides that the DOJ shall make available information
concerning persons who are required to register as a sex
offender to the public via an internet Web site. The DOJ
shall update the Web site on an ongoing basis. Victim
information shall be excluded from the Web site. (Pen. Code §
290.46.) The information provided on the Web site is
dependent upon what offenses the person has been convicted of,
but generally includes identifying information and a
photograph of the registrant.
9)Generally prevents the use of the information on the website
from being used in relation to the following areas: (Pen.
Code, § 290.46, subd. (l)(2).)
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a) Health insurance;
b) Insurance;
c) Loans;
d) Credit;
e) Employment;
f) Education, scholarships, or fellowships;
g) Housing or accommodations; and
h) Benefits, privileges, or services provided by any
business establishment.
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "The purpose of
AB 201 is to authorize local governments to enact ordinances
relating to convicted sex offenders. Cities and counties are
within their rights to pass laws that benefit their
communities. Local governments have the best ability to serve
their unique populations and geographical needs. Recently this
authority was invalidated when an Orange County court ruled
that state law excluded local municipalities from making laws
relating to sex offenders. In resolution, the disposition of
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the case stated, 'If the Legislature wishes to do so, it can
amend Section 290.03 to permit local ordinances.'
"Prior to this ruling many cities and counties had taken
action by enacting ordinances that would protect their
residents. These cities and counties are now faced with the
harrowing choice of repealing local ordinances, compromising
the safety of their communities, or face the excessive cost of
litigation. AB 201 restores a jurisdiction issue that has left
local governments unable to protect their communities in an
appropriate way. AB 201 will restore authority to local
agencies and authorize the ability to implement their own
ordinances to protect their friends and neighbors from
becoming victims of convicted sexual predators."
2)State Preemption/Fully Occupying the Field: Article XI,
Section 7 of the California Constitution allows cities and
counties to make and enforce within their limits all local,
police, sanitary and other ordinances and regulations not in
conflict with general laws. However, courts have found that
if otherwise valid local legislation conflicts with state law,
it is preempted by such law and is void. A conflict exists if
the local legislation "duplicates, contradicts or enters an
area fully occupied by general law, either expressly or by
legislative implication."
3)Impact of Residency Restrictions: The Office of the Inspector
General (OIG) in October
of 2014 conducted a review and assessment of sex offenders on
parole and the impact of residency restrictions on this
population. The OIG Report concluded, "The residency
restrictions imposed by Jessica's Law, which prohibit parole
sex offenders from living within 2,000 feet of a school or
park where children congregate, contribute to homelessness
among parole sex offenders. According to the California Sex
Offender Management Board (CASOMB), there were only 88 sex
offenders on parole registered as transient when Proposition
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83 was passed in November 2006. As of June 2014, there were
1,556 sex offender parolees identified as transient by the
California Department of Corrections and Rehabilitation
(CDCR). While this represents 3.38 percent of all parolees,
the incidence of homelessness is 19.95 percent (approximately
one in five) among the subset of parolees who are sex
offenders."
"Transient sex offenders are more 'labor intensive' than are
parolees who have a permanent residence. The OIG interviewed
parole administrators in 12 parole districts, who said that
because transient sex offenders are moving frequently,
monitoring their movement is time consuming. Transient sex
offenders must register with law enforcement monthly (as
opposed to yearly for those with permanent residences), thus
requiring more frequent registration compliance tracking by
parole agents. Adding further to the workload associated with
monitoring transients, agents are required to conduct weekly
face-to-face contacts with them."
"While Jessica's Law leaves open the door for local
governments to impose their own restrictions on paroled sex
offenders, parolees are finding relief from residency
restrictions in the courts."
4)Supreme Court Ruling on Residency Restrictions: In March of
2015, the Supreme Court unanimously ruled that the provisions
in state law prohibiting sex offenders from living within
2,000 feet of schools or parks, as applied in San Diego
County, are unconstitutional and bear "no rational
relationship to advancing the state's legitimate goal
of protecting children from sexual predators" (In Re Taylor
[2015] 60 Cal. 4th 1019). The Supreme Court said sex
offenders can still be banned from living near parks and
schools, but such a determination must be made on a
case-by-case basis.
As a result, several cities and counties have repealed - or
are in the process of repealing - local ordinances with
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blanket residency bans. In addition, the California
Department of Corrections and Rehabilitation (CDCR), on the
advice of the Attorney General, issued new regulations
requiring parole agents to individually determine residency
restrictions for each of the 6,000 offenders they monitor.
5)Presence Restrictions/Exclusion Zones: Existing state law is
silent regarding where registered sex offenders are allowed to
be present. These restrictions are known as presence
restrictions or exclusion zones. Numerous local jurisdictions
enacted a variety of ordinances establishing "child safety
zones" to restrict registered sex offenders from being present
at parks, libraries, swimming pools, arcades, piers, and other
similar locations where children regularly gather. Many of
these ordinances were the subject of litigation, and local
governments across the state repealed some or all of their
ordinances as a result.
In addition, last year, an appellate court opinion in People
v. Nguyen (222 Cal. App. 4th 1168, 2014) found that state
law's comprehensive scheme regulating the daily life of sex
offenders fully occupies the field, therefore preempting a
City of Irvine ordinance restricting sex offenders from
visiting city parks and recreational facilities. The Supreme
Court declined a petition to review this decision.
6)California's Sex Offender Management Board's Background: On
September 20, 2006, Governor Arnold Schwarzenegger signed
Assembly Bill 1015, which created the California Sex Offender
Management Board (CASOMB). AB 1015 had been introduced by
Assembly Members Judy Chu and Todd Spitzer and passed the
California Legislature with nearly unanimous bipartisan
support.
Because California is the most populated state in the Union and
has had lifetime registration for its convicted sex offenders
since 1947, California has more registered sex offenders than
any other state with about 88,000 identified sex offenders
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(per DOJ, August 2007). Currently, the California Department
of Corrections and Rehabilitation (CDCR) supervises about
10,000 of those 88,000 sex offenders, of which about 3,200
have been designated as "high-risk sex offenders". (CDCR
Housing Summit, March 2007). Additionally, there are about
22,500 adult sex offenders serving time in one of 32 state
prisons operated by CDCR (California Sex Offender Management
Task Force Report, July 2007).
While it is commonly believed that most sexual assaults are
committed by strangers, the research suggests that the
overwhelming majority of sex offenders victimize people known
to them; approximately 90% of child victims know their
offenders, as do 80% of adult victims [per Kilpatrick, D.G.,
Edmunds, C.N., & Seymour, A.K. Rape in America: A Report to
the Nation (1992). Arlington, VA: National Victim Center.]
7)CASOMB 2014 Year End Recommendations: In their 2014 Year End
Report<1>, the California Sex Offender Management Board
(CASOMB)made five recommendations for California policy
makers. The last two recommendations are specifically
contrary to the intentions of this legislation.
As CASOMB continues to track the status of sex offender
management in California, many areas would benefit from major
or minor improvements. However, certain policies and practices
deserve the highest priority. Most of them repeat previous
CASOMB recommendations, some of which remain on the list since
the initial CASOMB Recommendations statement in 2010
( www.casomb.org ).
CASOMB urges decision makers to take steps to implement the
following recommendations in order to make the systems for sex
offender management in California rational and consistent and
designed to improve the safety of California citizens and
communities:
--------------------------
<1>
http://www.cce.csus.edu/portal/admin/handouts/CASOMB_End_of_Year_
Report_to_Legislature_2014.pdf
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a) Enact a tiered sex offender registry so that length of
registration and extent of community notification relate to
the risk level and dangerousness of the offender, to enable
law enforcement to identify and concentrate resources on
dangerous offenders.
b) Require participation in the Containment Model for sex
offenders released to community supervision (PRCS).
c) Provide state funding for sex offenders on probation and
sex offenders on PRCS to ensure that all registered sex
offenders under supervision participate in the Containment
Model.
d) Amend state law on residency restrictions to apply such
restrictions on a case by case basis, depending on the risk
level and type of offender.
e) Avoid enactment of exclusion zones that apply to all
registrants because no evidence shows they are effective in
reducing sexual re-offending, and they may be
counter-productive.
8)Additional Restrictions are Ineffective: An October 2014
report released by the Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering and Tracking ("SMART")
in the Federal Department of Justice developed the Sex
Offender Management Assessment and Planning Initiative
(SOMAPI), a project designed to assess the state of research
and practice in sex offender management. That report states
in part:
"Despite the intuitive value of using science to guide
decisionmaking, laws and policies designed to combat sex
offending are often introduced or enacted without empirical
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support. The reasons why this occurs are complex and are
not explored here. However, there is little question that
both public safety and the efficient use of public
resources would be enhanced if sex offender management
strategies were based on evidence of
effectiveness?(S)tudies have revealed that proximity to
schools and other plces where children congregate had
little relation to where offenders met child victims." <2>
According to the 2014 Year End Report by the California Sex
Offender Management Board, in 2014 an appellate court
determined that local ordinances governing where sex offenders
can go in the community are unconstitutional because the state
has "occupied" the field of sex offender management by
enacting a comprehensive scheme for the registration,
management and control of sex offenders in the state. The
California Supreme Court declined to review this decision,
which is, therefore, final. (People v. Godinez (2014) 222 Cal.
App.4th 1168.)
CASOMB has discussed whether to recommend a model ordinance on
where sex offenders can go in the community. However, no
research shows that exclusion zones are helpful in preventing
re-offense. Restrictions about where the offender can go in a
community are routinely imposed as part of the individual
parole and probation conditions because they can be fashioned
to relate to the particular offender. State laws already
preclude registered sex offenders from being on school
campuses and from working with children under defined
circumstances. (Pen. Code, §§ 626.81 & 290.95.) There is no
evidence that broader restrictions will be effective, or will
not be counter-productive by preventing offenders from
obtaining appropriate employment.
CASOMB takes the position that any law precluding sex
--------------------------
<2> SOMAPI ( http://smart.gov/SOMAPI/index.html .)
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offenders from being in particular places ("exclusion zones")
must be tailored to the individual, including a consideration
of the California Sex Offender Management Board Year End
Report, February 3, 2015, risk level of the offender in order
to be effective and need to have reasonable distances and
protected places along with consistency in implementation
statewide. Correlating the tiered registry and exclusion zones
would assist law enforcement in monitoring those individuals
most likely to reoffend and would increase options for housing
and employment in the interest of developing offender
stability in order to prevent recidivism.
9)Difficulty in Finding Appropriate Housing for Sex Registrants:
According to the 2014 End of Year Report by the CASOMB, every
thoughtful consideration of sex offender management practices
takes into account the need for lifestyle stabilization and
the importance of reliable housing in the service of risk
reduction and community safety. Having an alarmingly large
number of transient sex offenders in California does not make
communities safer.
a) Number of sex registrants who register as transient -
6,692 (AS OF 1/15/15)
b) Number of parolees who are homeless and transient -
1,382 (AS OF 1/30/15)
c) Number of probationers who are homeless and transient -
unknown
CASOMB has looked carefully into these issues and has
repeatedly stated that the promulgation of conditions which
actually create homelessness and transience among registered
sex offenders while producing no discernible benefit to
community safety is counterproductive and continues to be the
single most problematic aspect of sex offender management
policy in California. CASOMB continues to recommend the
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elimination of one size-fits-all restrictions on where
registered sex offenders may live.
10)Lack of Notice to Registrants Likely Make this Bill
Unconstitutional: In addition to the myriad of other reasons
why this bill is probably unconstitutional, the lack of a
provision in the bill to provide notice to sex offenders in
particular jurisdiction as to what the rules and regulations
are in that area also make this bill unconstitutional. One
reason why regulation of sex offenders should be a matter of
statewide concern (much like firearms rules and regulations)
is that we do not want to have a patchwork of laws throughout
the state that can be inconsistent and lead to prosecution of
offenders who do not actually know that they are violating a
local regulation. In Lambert v. California (1957) 355 U.S.
255, the United States Supreme Court held that requiring
convicted felons to register within five days of coming into
the City of Los Angeles which such persons had not had actual
notice of the city's registration requirement was an
unconstitutional denial of due process. Unlike persons who
are informed of their duty to register, it is unclear how
persons subject to potentially multiple and varying local
ordinances restricting their presence would gain actual
knowledge of the restriction.
11)This Legislation Opens Local Jurisdictions to a Flood of
Lawsuits: Across the state of California, local jurisdictions
have attempted to pass a number of presence restrictions.
Nearly all, if not all, presence restrictions passed by local
governments that prevent registered sex offenders from being
in a particular area have been thrown out on a variety of
grounds. Most of the lawsuits focus on a lack of Due Process
under the 14th Amendment to the United States Constitution
which requires both procedural due process (including notice)
as well as substantive due process. Additionally, the
lawsuits allege ex post facto violations, when they are
imposed against people who were convicted and then had
additional restrictions placed on them which were not in place
at the time of the conviction. Another basis for lawsuits is
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that registrants lose their 5th Amendment property interests
to public facilities that they are charged taxes to support.
By and large, lawsuits against local jurisdictions have been
extraordinarily successful. In the last 12 months, more than
30 lawsuits have been filed throughout the state to challenge
presence restrictions. Passing this bill would only encourage
more local jurisdictions to pass presence restrictions which
would also be found unconstitutional. As a result of these
lawsuits 42 local jurisdictions have repealed their presence
restrictions and seven other jurisdictions have stayed
enforcement of their local laws.
12)Argument in Support: According to the City of Carson, "Local
ordinances regulating where it is appropriate for offenders to
live and congregate have recently come under attack, and your
bill is the first step to restoring local residents' peace of
mind, and allowing for locally elected officials to continue
advocating for their ongoing safety.
"Different cities throughout the state face various challenges
to maintaining a quality standard of living depending on their
economic status, education, crime rates, gang activity, and
police presence, among other factors. While the state
currently requires certain prohibitions for sex offenders
after the passage of Proposition 83 (2006), a statewide law of
this nature, however well intentioned, cannot address the
specific issue that are faced by each individual locality.
Local ordinances are vital for locally elected officials to be
able to continue maintaining a quality standard of living
precisely because they are to account for the various
conditions unique to their locality.
"While we recognize these ordinances may create a hardship for
registered sex offenders, when weighed against the benefit for
public safety, we view AB 201 as an extension of the spirit of
Section 290 of the Penal Code, that this bill 'does not
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intend?to inflict retribution or additional punishment on any
persons convicted of a sex offense.' Rather local ordinances
are meant to enhance the statewide system, and have the effect
of 'reducing the risk of recidivism posed by these offenders,
thereby protecting victims and potential victims from future
harm."
13)Argument in Opposition:
a) According to the Sex Offender Management Board, "One of
the principles under which CASOMB operates is that policies
and practices should be guided by the best available
scientific research. Making such research available and
recommending policies and practices consistent with
verifiable knowledge and recommending against policies and
practices which the research finds ineffective, useless, or
counterproductive is a major part of CASOMB's efforts to
increase public safety. A national panel of experts on sex
offender management issues stated the following:
"Perpetrators of sex crimes are often seen as needing
special management practices. As a result, jurisdictions
across the country have implemented laws and policies
that focus specifically on sex offenders, often with
extensive public support. At the same time, the criminal
justice community has increasingly recognized that crime
control and prevention strategies-including those
targeting sex offenders-are far more likely to work when
they are based on scientific evidence. (Emphasis added.)
http://smart.gov/SOMAPI/index.html
"CASOMB consistently urges policy makers to be familiar
with and follow what is known and supported by research
and, whenever such research is available, not to advance
policies which are not evidence-based.
"When it comes to residence restrictions and, to a slightly
lesser extent, exclusion zones, the research and evidence
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is sufficiently clear. There is no research which supports
the use of these strategies, there is substantial research
showing that such policies have no effect on preventing
recidivism, and there is growing body of research which
indicates that residence restrictions actually increase sex
offender recidivism and decrease community safety.
"In support of the statement that residence restrictions
actually make communities less safe because they increase
the risk of sexual recidivism, some yet-unpublished
research recently conducted in a 2016 California study
provides data showing that about 18% of sexual re-offenses
in the probation group of registered sex offenders were
committed by individuals who were registered as transients
at the time of arrest on the new sex offense. More
striking is the finding that 29% of sexual re-offenses in
the parolee sex offender group were committed by
individuals who were registered as transients at the time
of re-arrest. Since transient sex offenders make up only
about 8% of the overall population of sex offenders living
in California communities, it is obvious that the rate of
reoffending among those who are transient is quite
disproportionately high. (Source: verbal report by DOJ
staff at CASOMB meeting on November 19, 2015.) A
substantial body of criminal justice research supports the
fact that 'lifestyle stability' is a 'protective factor'
and that anything which undermines such stability amplifies
the risk of reoffending.
"The proponents of residence restrictions and exclusion
zones, as put forth in AB 201, appear to begin with the
premise and assumption that such policies will make
California citizens safer. The Analysis of AB 201 by the
Assembly Committee on Local Government provides the
following Author's Statement:
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"Prior to this ruling many cities and counties had taken
action by enacting ordinances that would protect their
residents. These cities and counties are now faced with
the harrowing choice of repealing local ordinances,
compromising the safety of their communities, or face the
excessive cost of litigation. AB 201 restores a
jurisdiction issue that has left local governments unable
to protect their communities in an appropriate way. AB
201 will restore authority to local agencies and
authorize the ability to implement their own ordinances
to protect their friends and neighbors from becoming
victims of convicted sexual predators.
"As articulated in several places in this paper, the claim
that residence restrictions make communities safer is one
which has no support in the scientific literature. It is a
claim which CASOMB and numerous other authoritative sources
strongly reject as untrue. It is not a proper foundation
upon which to build effective policies.
"As CASOMB has stated previously, those who are really
interested in reducing the risk of recidivism by registered
sex offenders should be raising and addressing the question
of where can they safely live rather than merely creating
restrictions on where they cannot live.
"PART TWO: RECOMMENDATIONS OF EXPERTS
"Whether residence restrictions and exclusion zones are
good public policies is not a question which should be
decided by "common sense" or other considerations,
including the impulse to further punish sex offenders
because of the damage they have done to innocent victims.
The anger most citizens feel about sex offenders and their
crimes makes it difficult to think clearly and legislate
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wisely with the goal of preventing future victimization.
The body of knowledge produced by scientific research
should be the guiding force in identifying effective
policies.
"A number of respected bodies have reviewed the research
regarding residence restrictions and exclusion zones and
have published their conclusions. CASOMB is not aware of
any similar statements from experts in support of such
policies.
"(1) USDOJ SMART Office: A national group of highly
respected experts has issued recommendations against the
adoption and continued use of residence restrictions. The
United States Department of Justice under the auspices of
the 'SMART Office' convened a panel of recognized national
experts. This panel, named the Sex Offender Management
Assessment and Planning Initiative (SOMAPI), issued their
Report in October of 2014. In that document, they
recommended against adopting residence restrictions.
" 'Finally, the evidence is fairly clear that residence
restrictions are not effective. In fact, the research
suggests that residence restrictions may actually
increase offender risk by undermining offender stability
and the ability of the offender to obtain housing, work,
and family support. There is nothing to suggest this
policy should be used at this time.' 'SOMAPI forum
participants do not recommend expanding the residency
restriction policy.' (Emphasis added.)
( http://smart.gov/SOMAPI/index.html )
"(2) ATSA: The international Association for the Treatment
of Sexual Abusers (ATSA) issued a statement regarding
residence restrictions. In that document, ATSA strongly
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recommended against the use of residence restriction
policies. The research supporting that conclusion is also
provided. ATSA supports evidence-based public policy and
practice. Research consistently shows that residence
restrictions do not reduce sexual reoffending or increase
community safety. In fact, these laws often create more
problems than they solve, including homelessness,
transience, and clustering of disproportionate numbers of
offenders in areas outside of restricted zones. Housing
instability can exacerbate risk factors for reoffending.
Therefore, in the absence of evidence that these laws
accomplish goals of child protection, ATSA does not support
the use of residence restrictions as a feasible strategy
for sex offender management. (Emphasis added.)
( www.ATSA.org )
"(3) California Supreme Court: In the landmark Taylor case
regarding residence restrictions in San Diego County, the
California Supreme Court determined that the restrictions,
as applied in San Diego County, were unconstitutional. The
decision made a number of strong statements about the
practice of imposing residence restrictions and based their
decision in part on the "no rational basis" principle. In
other words, the court held that, although the intentions
of protecting the community may have been admirable, there
was no reason to think that residence restrictions did
anything meaningful to actually achieve that end. It is
difficult to advance a 'no rational basis' argument because
the presumption is that the government has implemented a
policy which bears some relationship to the goal it is
attempting to achieve. The Taylor decision is believed to
be the first 'no rational basis' determination regarding
residence restrictions which has been decided against the
government.
"The court's decision, filed on 3-2-15, included the
following language: 'As will be explained, we agree that
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section 3003.5(b)'s residency restrictions are
unconstitutional as applied across the board to petitioners
and similarly situated registered sex offenders on parole
in San Diego County. Blanket enforcement of the residency
restrictions against these parolees has severely restricted
their ability to find housing in compliance with the
statute, greatly increased the incidence of homelessness
among them, and hindered their access to medical treatment,
drug and alcohol dependency services, psychological
counseling and other rehabilitative social services
available to all parolees, while further hampering the
efforts of parole authorities and law enforcement officials
to monitor, supervise, and rehabilitate them in the
interests of public safety. It thus has infringed their
liberty and privacy interests, however limited, while
bearing no rational relationship to advancing the state's
legitimate goal of protecting children from sexual
predators, and has violated their basic constitutional
right to be free of unreasonable, arbitrary, and oppressive
official action.' (Emphasis added.) In re WILLIAM TAYLOR
et al., on Habeas Corpus. Ct.App. 4/1 D059574 S206143
"(4) CASOMB: For many years, CASOMB has recommended against
adopting or continuing residence restrictions in
California. These repeated recommendations can be found in
papers and Reports on www.CASOMB.org , and include numerous
research references and facts supporting that position.
'CASOMB has ? repeatedly stated that the promulgation of
conditions which actually create homelessness and
transience among registered sex offenders while producing
no discernible benefit to community safety is
counterproductive and continues to be the single most
problematic aspect of sex offender management policy in
California. CASOMB continues to recommend the elimination
of one-size-fits-all restrictions on where registered sex
offenders may live.' ( www.CASOMB.org Year End Report,
February 2015)
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"It is worth noting that none of the statements and
arguments made by proponents and supporters of this Bill
and none of the Analysis provided by the Assembly Committee
on Local Government have made any reference to these highly
credible authorities."
"PART THREE: ASSUMPTIONS HELD BY PROPONENTS OF AB 201
"The push to pass AB 201 and there by empower local
jurisdictions to create their own versions of residence
restrictions and exclusion zones appears to be grounded on
the acceptance by proponents of a large number of
assumptions which are simply not true.
"ASSUMPTION 1. The most basic assumption which appears to
be accepted by the proponents of this Bill is that
Residence Restrictions and Exclusion Zones are actually
effective in preventing the commission of new sex offenses
by previously identified (PC 290 Registrant) individuals.
See the Author's statement provided in PART ONE above. As
stated previously, this assumption is not true. These
types of policies simply do not accomplish the purposes for
which they have been enacted.
"ASSUMPTION 2. All convicted sex offenders are equally
likely to reoffend and so it is effective to develop
"one-size-first-all policies. This assumption is false.
There is a wide range of re-offense risk among sex
offenders. For this reason, California has put a great
deal of thought and effort into developing systems to
evaluate the risk level for each PC 290 Registrant and to
following the widely accepted "Risk Principle," which urges
that more effort be put into the management of higher risk
offenders and less into those whose risk to reoffend is
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lower. Risk levels are determined through a system
developed by the legislatively-created State Authorized
Risk Assessment Tools for Sex Offenders ( www.SARATSO.org )
committee. The SARATSO system is being effectively used
throughout the state and the various management
interventions are calibrated to take that risk into
account. Opening the door to "blanket" one-size-fits-all
policies would move the state back in the opposite
direction and would ignore California's thoughtfully
developed risk-based approach.
"ASSUMPTION 3. Most convicted sex offenders will reoffend
and extremely robust controls and restrictions are needed
to stop them. This assumption is not supported by the
research. Measuring and accurately stating recidivism
rates is very complex. However, all of the various
published studies indicate that the overall rate is
considerably lower than is commonly believed. The largest
single study of sex offender recidivism conducted to date
found a sexual recidivism rate of 5.3 percent for the
entire sample of sex offenders based on an arrest during
the 3-year follow-up period.
"Research conducted in California by one of the most highly
respected researchers in the world has found that the
recidivism rates for sex offenders who have been identified
by SARATSO risk assessment instruments (cf. www.SARATSO.org
) as 'Low to Medium risk' fall in the range of 1 to 2
percent.
"ASSUMPTION 4. Every sex offender will continue to be a
significant risk to reoffend for the remainder of his or
her life. The research provides ample evidence that this
assumption is not true. The longer a sex offender remains
offense-free in the community, the lower the risk that that
individual will reoffend in the future. Because California
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continues to be one of the four states requiring universal
lifetime registration, many, many thousands of California's
approximately 83,000 registered sex offenders living in the
state's communities have reached the point where, according
to the risk assessment research, their risk of reoffending
is negligible. Yet apparently they would all fall under
the scope of this Bill and, with no scientifically
defensible justification, would be subject to residence
restrictions and exclusion zones.
"ASSUMPTION 5. Previously convicted sex offenders account
for a substantial proportion of the new sex offenses
committed. This assumption is false. The research has
found that only about 5% of new sex offenses were committed
by individuals previously convicted of a sex offense.
Conversely, almost all new sex offenses are committed by
individuals who have never been previously convicted of a
sex offense. Efforts to prevent new sexual victimizations
by focusing on PC 290 Registrants are misplaced and a waste
of resources. Instead, broader prevention strategies
should be given increased attention and resources.
"ASSUMPTION 6. Sex offenders are all alike in terms of
their potential danger to offend against a juvenile victim
and so all need the same restrictions with respect to
limiting their access to children. This assumption is
obviously not true. Many sex offenses involve
victimization of adult women or men. When it comes to
offenders with no history of victimizing children,
community safety is not improved by regulating their access
to places where children gather.
"ASSUMPTION 7. Sex offenders prowl California communities
looking for children to molest. This assumption is
discredited by the research. Although "stranger danger"
perspective paints compelling images of sex offenders
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lurking in the bushes to snatch and molest a child, the
reality is that sex offenses perpetrated against strangers
account for only about 5% of total offenses. In the vast
majority of cases, the offender is already known to the
victim through some existing relationship, including being
a member of the same family. Formulating policies based on
the belief that "stranger danger" represents much of the
problem needing attention diverts attention from the other
types of prevention efforts are needed to attempt to reduce
the 95% of actual victimization events.
"ASSUMPTION 8. Sex offenders find their victims and commit
their crimes in or around schools or parks or other places
where children gather. This assumption is not correct.
Research on these questions discloses that such scenarios
are by far the exception. Most contact with child victims
and most actual offenses occur in the home of the victim or
the offender. Of the very small number of sex offenses
actually committed in or around a school, the majority were
committed by teachers or staff who had never been convicted
of a prior sex offense. Similarly, very few victims were
encountered or offenses committed occurred in parks or
similar locations. Where do sex offenders find their
victims and commit their offenses? Not in the places from
which they would be restricted by this Bill.
"(Note that the research upon which each of the above
statements is based can be provided upon request.)
"PART FOUR: CONSEQUENCES - INTENDED AND UNINTENDED
"It is likely that many of California's 540 local
jurisdictions (58 Counties and 482 Municipalities) will
enact some form of residence restriction and exclusion zone
regulations. It is impossible to predict how many will
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actually do so. Prior to the court ruling determining that
they were in violation of the California constitution, many
local ordinances had been put in place. Numbers cited
suggest that 70 Municipalities and 5 Counties had
restrictions in place. Others were presumably in the
process of being enacted.
"Because there is no system in place or anticipated to keep
track of all of the possible local ordinances and
regulations, it will be very difficult for anyone governed
by or involved with this local-jurisdiction system to
actually know what the rules are. Before the court
decision prohibiting such local regulations was issued,
CASOMB staff had made attempts to track the emergence of
new local regulations. Staff found the effort frustrating,
challenging, and extremely time-consuming and eventually
were unable to continue the monitoring. This Bill makes no
provision for any such tracking as a new set of regulations
begin to roll out across the state.
"The Bill also makes no provision for the notification of
registered individuals who might be directly impacted by
new local residence restrictions or exclusion zones. If
the Bill and the new local ordinances apply to all
registrants, then as many as 83,000 individuals could be
impacted. Since it is likely that not all local
jurisdictions will create local regulations, the number
would probably not be that high, but could easily be tens
of thousands.
"Because the introduction of regulations purporting to
prevent sexual reoffending is often - in the view of some
observers - driven more by political considerations than by
well-informed policy considerations, it appears quite
possible that local jurisdictions, especially those in
certain parts of the state where many smaller jurisdictions
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are geographically contiguous, will vie with each other to
avoid being seen as a 'safe-haven' for sex offenders and
will escalate efforts to match or surpass the restrictions
imposed by their neighboring communities. A notorious
example of this mentality on the national stage is that
politicians in Georgia openly stated that their intent was
to put in place stringent regulations which would drive sex
offenders out of the state. Such a stance reflects an
attitude of "we don't really care where they go, just get
them out of here."
"ANTICIPATED DESIRED CONSEQUENCES
"Although, based on the above information, it seems highly
unlikely, it is possible that a very small number of
offenses might be prevented by the actions of local
jurisdictions made possible by this Bill.
"ANTICIPATED UNDESIRED CONSEQUENCES
"It appears likely that local restrictions will apply to
ALL PC 290 registrants. Prop 83 (Jessica's Law) was
completely unclear and so the RR was never applied to all
registrants. The state's previous experience with
residence restrictions is based upon their application
primarily to those on state parole - approximately 6,000
individuals. By contrast, ordinances developed under AB
201 could impact as many as 83,000 registrants living in
California communities. The potential for dislocation,
loss of previously stable living arrangements,
fragmentation of families, loss of jobs due to exclusion
zones and other foreseeable consequences would be massive.
"The consequences of efforts to apply residence
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restrictions and exclusion zones to all of the state's
Registrants who live in jurisdictions which would implement
AB 201 must be considered. No one appears to have made any
estimate regarding the number of citizens who would be
forced by residence restrictions to move, including those
who own their own homes. There is no estimate about the
amount of homelessness and transience which would result.
Projections based on the experience of CDCR in enforcing
residence restrictions on parolees suggest that those
numbers would be considerable. There has been no apparent
effort to estimate the number of jobs which would be lost
because the place where a Registrant works - and may have
worked for many years - happens to be in an area declared
an exclusion zone by the local jurisdiction.
"Historically and currently, CDCR Parole Agents have been
depending on Global Positioning Monitoring (GPS Ankle
Bracelets) to monitor exclusion zones. (Such case-specific
exclusion zones can be and frequently are imposed by parole
authorities in response to individualized needs and
concerns.) The use of this costly equipment and the
supporting tracking systems is now limited to parolees and
some county probationers. The cost of requiring such
tracking for all PC 290 registrants would be absolutely
prohibitive. Yet without such a system, it would appear
impossible to do any type of consistent enforcement of
exclusion zone restrictions. Only if local law enforcement
should happen to find a registrant in an exclusion zone
would the presumed effectiveness of creating such zones
have any chance of being realized.
"PART FIVE: ADDITIONAL CONSIDERATIONS
"Experts advise that case-by-case decisions about where sex
offenders may live or be present are far preferable to
blanket, one-size-fits-all policies. Fortunately,
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California's current system allows such case-based
determinations to be made for individual sex offenders
under direct criminal justice system supervision. The time
when convicted sex offenders are most likely to commit a
new offense occurs during the initial period after release.
Over time the risk diminishes. It is during this initial
period that authorities have the greatest control over
these individuals since they are supervised under the
authority of the California Department of Corrections and
Rehabilitation's Division of Parole Operations (CDCR-DAPO)
or under one of the state's 58 County Adult Probation
Departments. These supervising agencies can use case
information to make individually tailored requirements
regarding where specific offenders may live or may be
present during their period of supervision. These periods
of parole or probation vary in length. CDCR parolees are
under supervision for periods of 5, 10, or 20 years or, in
certain cases, for life. Those on county probation are
usually supervised for periods of 3 or 5 years. This
system of sex offender management is already in place in
California. The Legislature has included in the Penal Code
explicit requirements that sex offenders under supervision
be engaged in a certified specialized treatment program and
that supervisors and treatment providers hold regular
meetings and communicate regularly in accord with the
'Containment Model.' This sex offender management
approach, including individualized supervision guided by
the "Risk Principle" paired with a specialized
rehabilitative treatment program, is viewed by experts as
the most effective approach to reducing sex offender
recidivism.
"Although it extremely difficult to estimate the costs
involved with implementing, enforcing, and defending the
local ordinances which might be created under this Bill, it
is clear that they could be substantial. It may be true
that there would be no costs to the state itself. There
would definitely be costs to local government
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jurisdictions. The costs of filing, pursuing and
responding to anticipated lawsuits would be considerable.
It is certain that there would be fiscal impacts on
individual citizens, including potentially tens of
thousands of registrants who could lose their housing and,
in some cases, their jobs. Landlords would lose income as
tenants were forced to relocate. Whether it would even be
possible to estimate all of the costs is questionable. To
pass such legislation without even attempting to do so
seems irresponsible.
"Given the history of residence restrictions in California,
the proliferation of previous court challenges, and the
decision returned by the California Supreme Court in the
Taylor case, it seems predictable that there will be
numerous court cases subsequent to the implementation of
this Bill. The process of bringing lawsuits is, of course,
a very costly one and much of the cost would be incurred by
local jurisdictions defending their ordinances.
Ultimately, such a process is also likely to take years.
"It seems improbable that decision makers in the state's
540 local jurisdictions would have the internal expertise
or access to such expertise to support the crafting of
ordinances which would really have some chance of improving
sex offender management and reducing recidivism. Based
upon past history, it seems more likely that the local
decisions would be influenced by "common sense" and other
considerations which would not be helpful in drafting solid
policies. The history of the emergence of sex offender
management policies throughout the United States is filled
with experiences of jurisdictions creating policies which
are not grounded in good science and verifiable knowledge.
"FINAL NOTE: As CASOMB has stated repeatedly in its Reports
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and other documents, it is unfortunate that so much energy
goes into introducing and even implementing policies and
practices which research says do not work rather than into
actualizing the many possible policies and practices which
could actually reduce sexual victimization in California."
b) According to the American Civil Liberties Union, "The
ACLU of California regrets to inform you that we must
oppose AB 201, which would allow local jurisdictions to
enact more restrictive residency limitations and
limitations on being present in specific locations than
currently provided under state law for people registered as
sex offenders. AB 201 will lead to the unconstitutional
deprivation of individuals' basic rights and liberty,
thereby exposing local jurisdictions to costly litigation.
It will also increase the incidence of homelessness among
sex offenders, making it more difficult to manage the sex
offender population and putting public safety at risk.
"Just one month ago, the California Supreme Court
invalidated the statewide residency requirements for sex
offenders as applied to parolees living in San Diego
County. (In re Taylor, March 2, 2015, S206143.) In its
analysis, the Supreme Court noted that
"parolees retain certain basic rights and liberty
interests, and enjoy a measure of constitutional protection
against the arbitrary, oppressive and unreasonable
curtailment of the core values of unqualified liberty even
while they remain in the constructive legal custody of
state prison authorities until officially discharged from
parole. (Id. st slip op p. 27.)
"The court found that, as applied to paroled sex offenders
in San Diego County, the statewide residency restrictions
effectively prevented most individuals from finding
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housing. Of the sex offender parolees in San Diego County,
34% were homeless. Of those with a home, nearly half were
under a court order preventing the residency requirements
from being applied to them during the pendency of the
litigation.
"Further, the trial court and the Supreme Court quoted the
findings of the California Department of Corrections and
Rehabilitations' Sex Offender Supervision and GPS
Monitoring Task Force (Task Force), as follows:
"The Task Force studied the increased rate of
homelessness among paroled sex offenders following the
enactment of section 3003.5(b)'s residency restrictions
and reported that between 2007 and 2010, the number of
homeless sex offender parolees statewide reflected an
alarming increase of 'approximately 24 times.' (Task
Force, Rep., supra, at pp. 4, 17.) A specific finding was
made that "[h]omeless sex offenders put the public at
risk. These offenders are unstable and more difficult to
supervise for a myriad of reasons." (Id. at slip op p.
17.)
"The Supreme Court ultimately held that:
"Blanket enforcement of the residency restrictions
against these parolees has severely restricted their
ability to find housing in compliance with the statute,
greatly increased the incidence of homelessness among
them, and hindered their access to medical treatment,
drug and alcohol dependency services, psychological
counseling and other rehabilitative social services
available to all parolees, while further hampering the
efforts of parole authorities and law enforcement
officials to monitor, supervise, and rehabilitate them in
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the interests of public safety. It thus has infringed
their liberty and privacy interests, however limited,
while bearing no rational relationship to advancing the
state's legitimate goal of protecting children from
sexual predators, and has violated their basic
constitutional right to be free of unreasonable,
arbitrary, and oppressive official action. (Id. at slip
op pp. 3-4.)
"AB 201 would empower local jurisdictions to enact even
more restrictive residency requirements and would permit
local ordinances that would apply to registered sex
offenders who are no longer on parole, as well as those on
parole. As the Supreme Court noted, even sex offenders on
parole retain basic rights and liberty interests under the
state and federal constitution. The rights of individual
who are no longer on parole are even stronger.
"AB 201 essentially invites local jurisdictions to pass
residency restrictions that would have the effect of
preventing registered sex offenders from finding a place to
live within the jurisdiction. This will no doubt be an
appealing invitation to many communities. It is, however,
an invitation to violate the constitution. Local ordinances
that restrict residency requirements beyond existing state
law will lead to costly litigation.
"Because registrants are such a reviled group, there is a
significant danger that local governments will act based on
fear and passion rather than evidence and logic and will
enact measures that harm, rather than help, public safety.
In its ruling, the Supreme Court emphasized the public
safety problems caused by severe residency restrictions,
such as an increase in homelessness that makes it more
difficult for the police to protect the public from those
registrants who do pose a danger to the public.
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"Moreover, ordinances that prohibit registered sex
offenders from being 'present' in specific location pose
major constitutional issues. These ordinances frequently
prohibit people from being "present" in parks and
libraries, and from standing on public sidewalks. These
areas are quintessential public forums, where the public
has a long recognized and constitutionally protected right
to engage in First Amendment activity. Given the complexity
of the legal issues involved, it is highly likely that
local communities will continue to enact ordinances that
violate multiple constitutional rights, leading to costly
litigation."
14)Related Legislation:
a) AB 262 (Lackey) places additional residency restrictions
on Sexually Violent Predators conditionally released for
community outpatient treatment. AB 262 failed passage in
the Assembly Public Safety Committee.
b) SB 267 (Leyva), provides that a local agency is not
preempted by state law from enacting and enforcing an
ordinance that restricts a person required to register as a
sex offender for an offense committed against a minor from
being present at schools, parks, day care centers, or other
locations where children regularly gather within the local
agency's jurisdiction. SB 267 also allows a local agency
to adopt ordinances, rules, or regulations that are more
restrictive than state law relating to a person's ability
to be present at schools, parks, day care centers, or other
locations where children regularly gather within the local
agency's jurisdiction when the person is required to
register as a sex offender for an offense committed against
a minor. SB 267 has yet to be heard in the Senate Public
Safety Committee.
15)Prior Legislation: AB 655 (Quirk-Silva), of 2013-14
Legislative Session, would provide that the Legislature does
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not preempt local agencies from enacting ordinances that
restrict where persons required to register as sex offenders
may go within a municipality. AB 655 was held in the Senate
Rules Committee.
REGISTERED SUPPORT / OPPOSITION
Support
Association of California Cities - Orange County
City of Aliso Viejo
City of Carson
City of Irvine
City of Laguna Niguel
City of San Juan Capistrano
AB 201
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Crime Victims United of California
Fraternal Order of Police
League of California Cities
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Orange County Board of Supervisors
Orange County District Attorney's Office
Orange County Sheriff's Department
Sacramento County Deputy Sheriffs' Association
Santa Ana Police Officers Association
Opposition
AB 201
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Alameda County Board of Supervisors
American Civil Liberties Union
California Attorneys for Criminal Justice
California Civil Liberties Advocacy
California Public Defenders Association
California Reform Sex Offender Laws
California Sex Offender Management Board
Housing California
San Diego County Apartment Association
21 private individuals
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744
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