BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 538


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          Date of Hearing:  May 12, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 538  
          (Campos) - As Amended May 5, 2015


                              As Proposed to be Amended


          SUBJECT:  ACTIONS FOR DAMAGES:  FELONY OFFENSES: VICTIM  
          NOTIFICATION


          KEY ISSUES:  


          1)SHOULD the statute of limitations for filing a civil action  
            for damages against a person who is convicted of specified  
            serious felony offenses be extended from 10 years after the  
            person is discharged from parole to 15 years after discharge?


          2)should the law provide a mechanism for victims of those same  
            specified serious felony offenses to be notified that the  
            perpetrator has entered into a contract for the sale of the  
            story of his or her crime, in order to help the victim or the  
            victim's family decide whether to pursue a civil action  
            against that person in order to recover damages?

                                      SYNOPSIS










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          According to the author, the current ten-year statute of  
          limitations may not provide sufficient time for a crime victim  
          to pursue damages against an offender who may be compensated by  
          a book, movie or other contract for the sale of the story of the  
          crime more than ten years after they are paroled.  The author  
          further contends that existing law is insufficient in providing  
          a mechanism to notify a crime victim or the crime victim's  
          family that a book or movie may be released which portrays the  
          crime and their victimization.  Notification that the  
          perpetrator of the crime has signed a contract to sell his or  
          her story about the crime would, according to the author, help  
          the victim or the victim's family decide whether to pursue a  
          civil action for damages against the perpetrator.  This bill,  
          sponsored by Crime Victims United of California, does not seek  
          to prohibit contracting for the sale of a convicted offender's  
          story, which would be an unconstitutional restraint of speech,  
          but instead requires notification to the state and the victim or  
          the victim's family about a contract's existence.


          Specifically, this bill would allow victims of specified serious  
          felonies to be notified that the person who committed the felony  
          has entered into a contract for the sale of the story of his or  
          her crime.  Proponents contend that the Office of Victims  
          Services (OVS) within the Department of Corrections is the most  
          efficient and appropriate entity to carry out the notification  
          duties under the bill because OVS already maintains contact  
          information for victims and their families who request to be  
          notified about future events regarding the inmate who  
          perpetrated the crime against them.  Proposed amendments to the  
          bill simply clarify that the notification requirement only  
          applies when the SOL has not yet barred a suit for damages.  In  
          addition to notification, the bill extends by five years (from  
          ten to 15 years) the statute of limitations to file a civil  
          action for damages against the person convicted of the specified  
          felony.  Finally, the bill seeks to address an apparent loophole  
          by exempting wrongly convicted persons who are freed from prison  
          from being sued for damages based on their convictions.  The  
          bill is supported by police chiefs and sheriffs, who believe  








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          that victims of serious crimes should have greater opportunity  
          to pursue civil damages against their perpetrators.  The bill is  
          opposed by Legal Services for Prisoners with Children, who  
          contend that (1) the current ten-year statute of limitations  
          provides more than enough opportunity for a victim to decide  
          whether to file suit; and (2) persons who are off parole have  
          paid their debt to society and deserve to be free from the  
          threat of civil litigation in order to move forward with their  
          lives.  Should this bill be approved by the Committee, it will  
          be referred to the Assembly Appropriations Committee with the  
          proposed amendments to be taken there.


          SUMMARY:  Allows victims of specified felonies to be notified  
          that the person who committed the felony has entered into a  
          contract for the sale of the story of the crime, and extends by  
          five years (from ten to 15 years) the statute of limitations to  
          file a civil action for damages against the person convicted of  
          the felony.  Specifically, this bill:   


          1)Extends the statute of limitations for filing an action for  
            damages against a defendant, based upon the defendant's  
            commission of specified felony offenses for which he or she  
            has been convicted, from within ten years to within 15 years  
            of the date on which the defendant is discharged from parole.


          2)Provides that no civil action for damages may be filed against  
            a person who was unlawfully imprisoned or restrained but has  
            been released from prison after successfully prosecuting a  
            writ of habeas corpus (i.e. falsely convicted and later  
            released.)


          3)Provides that any person or entity that enters into a  
            financial contract with a criminal offender for the sale of  
            the story of a crime for which the offender was convicted  
            shall notify the Office of Victim and Survivor Rights and  








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            Services (OVS) within the California Department of Corrections  
            and Rehabilitation (CDCR) that the parties have entered into  
            such a contract, if the following are true:


             a)   A crime that is the basis of the story sold under the  
               contract is specified in Code of Civil Procedure Section  
               340.3(b) and resulted in the felony conviction of the  
               offender.

             b)   An action for damages against the offender is allowed to  
               be commenced pursuant to Section 340.3(b) of the Code of  
               Civil Procedure.


          4)Requires OVS to notify the victim and members of the victim's  
            immediate family, as defined, that it has received  
            notification that a contract has been entered into for the  
            sale of the offender's story, if the victim or immediate  
            family member has previously requested to receive  
            notifications provided by OVS.


          EXISTING LAW:   


          1)Provides that, unless a longer period is prescribed, the time  
            for commencement of any civil action for damages against a  
            defendant based upon that person's commission of a felony  
            offense for which the defendant has been convicted is within  
            one year after judgment is pronounced.  (Code of Civil  
            Procedure Section 340.3(a).  All further references are to  
            this code unless otherwise stated.)
          2)Provides that, notwithstanding #1) above, the time for  
            commencement of an action for damages against a defendant  
            based upon the defendant's commission of specified felony  
            offenses for which the defendant has been convicted is within  
            10 years of the date on which the defendant is discharged from  
            parole.  Specified offenses include: (a) murder or attempted  








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            murder; (b) mayhem; (c) rape and other specified sexual  
            assault crimes; (d) any felony punishable by death or  
            imprisonment in the state prison for life or attempt to commit  
            such a felony; (e) exploding a destructive device or other  
            explosive, causing bodily injury, mayhem or with intent to  
            commit murder; or (f) kidnapping.  (Section 340.3(b)(1).)


          3)Provides that the extended statute of limitations in #2),  
            above, does not apply if:


              a)    The defendant has received a certificate of  
                rehabilitation or a pardon;

              b)    The defendant has been paroled, following a conviction  
                for murder or attempted murder, based on evidence  
                presented to the Board of Prison Terms that the defendant  
                committed the crime because he or she was the victim of  
                intimate partner battering; or

              c)    The defendant was convicted for murder or attempted  
                murder in the second degree in a trial at which  
                substantial evidence was presented that the defendant  
                committed the crime because he or she was the victim of  
                intimate partner battering.  (Section 340.3(b)(2).)
           4) Requires that any restitution paid by the defendant to the  
             victim shall be credited against any judgment, award or  
             settlement obtained pursuant to #2), above.  (Section  
             340.3(e).)
          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  This bill, sponsored by Crime Victims United of  
          California, seeks several changes related to California's  
          so-called "Son of Sam" law.  First, the bill allows victims of  
          specified felonies to be notified that the person who committed  
          the felony has entered into a contract for the sale of the story  
          of the crime.  The bill also extends by five years (from ten to  








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          15 years) the statute of limitations for a crime victim to file  
          a civil action for damages against the person convicted of the  
          felony, and specifically prohibits any such suit from being  
          filed against a person who was falsely convicted of the crime  
          and released from prison upon being exonerated.


          Background on "Son of Sam" Law and Extended Civil Statute of  
          Limitations.  David Berkowitz, dubbed the "Son of Sam," was a  
          serial killer who terrorized New York City in the late 1970s.   
          After his capture there was much speculation that publishers  
          would offer him large sums of money for his story.  His crimes  
          were later told in books, movies and even songs.  The State of  
          New York responded by enacting the nation's first "Son of Sam"  
          law, which imposed an involuntary trust on the income earned by  
          criminals who sell the rights to stories about their criminal  
          acts.  Under the New York law, the victims of the acts become  
          the beneficiaries of the involuntary trusts of proceeds from the  
          sale of the stories.


          In 1980, Henry Hill, a lifelong mobster, was arrested in New  
          York.  In exchange for immunity from prosecution and a new  
          identity, Hill testified at great length about his life of  
          crime.  Subsequently, Hill signed a contract with Simon &  
          Schuster to publish a book recounting his life as a mobster.   
          The book, Wiseguy, was a commercial success, and was later made  
          into the movie Goodfellas, another huge commercial success.  The  
          State of New York moved to place an involuntary trust on Hill's  
          income.  The publisher, Simon & Schuster, filed a lawsuit  
          challenging the constitutionality of the "Son of Sam" law as an  
          illegal restraint on speech.  The U.S. Supreme Court struck down  
          the law as an unconstitutional, content-based financial burden  
          on free speech rights.  (Simon & Schuster v. New York Crime  
          Victims Board (1991) 502 U.S. 105.)


          California passed its own "Son of Sam" law in 1986 to prevent  
          those convicted of notorious crimes from profiting by selling  








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          stories about their crimes.  The statute did so by imposing an  
          involuntary trust on the proceeds a felon receives from the sale  
          of the story of his or her crime.  However, the California  
          Supreme Court, following the U.S. Supreme Court's decision in  
          Simon & Schuster v. New York Crime Victims Board, invalidated  
          the law.  In Keenan v. Superior Court (2002) 27 Cal.4th 413, the  
          Court found provisions of the law violated the constitutional  
          guarantee of free speech, by imposing a content-based financial  
          penalty on protected speech that was over-inclusive in reaching  
          beyond the criminal's profits from the crime to gather all  
          income from the criminal's speech or expression on any theme or  
          subject that the story of the crime included.  


          In light of these decisions, which make it nearly impossible to  
          draft a law that directly targets the profits made by a felon  
          from selling the story of his or her crime and which can  
          withstand constitutional challenge, the Legislature took an  
          alternative approach to ensure that victims of crime can recover  
          against those who harm them: extending the statute of  
          limitations to allow a victim more time to file a tort action  
          against a defendant seeking damages based on the commission of  
          the crime.  SB 1887 (McPherson), Ch. 633, Stats. 2002, greatly  
          extended the statute of limitations for a civil action brought  
          by a crime victim (which had been within one year of conviction  
          of the crime), allowing the victim to bring a civil action any  
          time up to ten years after the defendant is discharged from  
          parole if the conviction is one of a number of specified  
          offenses.  The specific offenses include murder or attempted  
          murder, mayhem, rape, kidnapping, any felony punishable by death  
          or imprisonment in the state prison for life, and any attempt to  
          commit such a felony.  


          This bill further extends the statute of limitations from ten  
          years to 15 years.  According to the author, the current  
          ten-year statute of limitations does not provide sufficient time  
          for a crime victim to pursue damages from an offender who may be  
          compensated by a book, movie or other arrangement for the sale  








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          of the story of the crime they committed more than ten years  
          after they are paroled.  Crime Victims United of California, the  
          sponsor of this bill, reports that they are currently working  
          with the family of Missy Avila, a 17-year old girl who was  
          murdered in 1985, to advance policies that help victims'  
          families to ensure that those convicted of the crimes that  
          victimized them cannot financially profit by selling the story  
          of their crimes.  


          In that case, Karen Severson, a friend of Missy Avila, was one  
          of two defendants who were convicted of second-degree murder  
          after an investigation lasting over three years.  In 1990,  
          Severson was sentenced to 15 years to life for her role in  
          Avila's murder, but was eventually paroled in December 2011.   
          Subsequently, Severson published a book in June 2013 about her  
          experience, and then a second book about the crime in September  
          2014.  In March 2015, the Avila family filed a wrongful death  
          civil lawsuit against Severson, nearly thirty years after the  
          crime itself but less than four years after the date of  
          Severson's parole.  While the author acknowledges that the Avila  
          case is not an example of the victim's family being unable to  
          file a civil action against the perpetrator because of the  
          current statute of limitations, the author contends that the  
          Avila case illustrates that book and movie deals often take many  
          years to develop, and that other crime victims and their  
          families may be barred in the future if the SOL is not extended.


          Opponents of the bill, including Legal Services for Prisoners  
          with Children (LSPC), contend that there is no need to extend  
          the statute of limitations because crime victims already have  
          the entire time of trial, incarceration, and parole to file  
          suit-plus an extra ten years, because the SOL does not start  
          running until the date when the offender is discharged from  
          parole.  Because of the serious nature of the crimes covered by  
          the statute (e.g., murder, attempted murder, mayhem, rape,  
          kidnapping, etc.), the length of time that the offender is  
          incarcerated and serving parole is likely to be substantial,  








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          thus providing the victim or family with more than sufficient  
          opportunity to file a suit for damages.


          It is not known how many occasions arise each year in which a  
          crime victim is barred by the current ten-year statute of  
          limitations from filing a civil action for damages against the  
          person who committed the crime for the sale of a story about the  
          crime.  Because of the long opportunity that the victim or  
          family already have to file a suit before the SOL bars such an  
          action, it is thought that the vast majority of cases are likely  
          served by the current SOL of ten years from the date of  
          perpetrator's discharge from parole.


          This bill exempts wrongly convicted persons released from prison  
          from being sued for damages based on the conviction.  Existing  
          law specifically exempts from being sued for damages any  
          defendant who has been pardoned or received a certificate of  
          rehabilitation, as well as victims of domestic violence who  
          killed or attempt to kill their abusers.  This reflects the  
          Legislature's deliberate decision to exempt groups from  
          liability because of their reduced culpability or later  
          rehabilitation.  This bill would add an additional category of  
          persons who would be exempted from suit-namely, wrongly  
          convicted persons who have been released from prison for crimes  
          they did not commit.  Improvements in DNA technology coupled  
          with increased attention by advocates seeking to identify  
          prisoners with claims of factual innocence have resulted in a  
          number of recent cases of persons being freed from prison for  
          crimes they were shown not to have committed.  Because a person  
          who is wrongly convicted of a crime has even less culpability  
          than certain categories of convicted persons who are already  
          exempted under current law from liability, it makes sense to  
          also exempt persons who are wrongly convicted from liability.  


          Although it may seem illogical that a victim would ever file  
          suit against a person who was released from prison based on  








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          strong evidence that he or she did not commit the crime for  
          which he or she was imprisoned, it is possible that not every  
          victim will accept the court's determination that the person is  
          factually innocent of the crime or was not responsible for the  
          crime, particularly if the true perpetrator is not identified.    
          This bill would nonetheless respect the court's judgment that  
          the person deserves to be released from prison, and protect that  
          person from being sued for damages as he or she attempts to once  
          again earn a living and reintegrate back into society after  
          serving time in prison for a crime he or she did not commit.  


          This bill seeks to help victims be notified when an offender  
          signs a contract to sell the story of the crime to another  
          party.  According to proponents, existing law is insufficient in  
          providing a mechanism by which a crime victim is made aware at  
          an early stage that a book or movie may be released portraying  
          the crime in a very public way, leaving the victim or victim's  
          family to discover that fact when the book or movie is released  
          in stores or in theaters.  Proponents state that the bill is  
          intended to ensure that the victim or victim's next of kin is  
          made aware that their victimization may be replayed in a public  
          setting, so they can prepare themselves and make an informed and  
          timely decision about whether to pursue the recovery of civil  
          damages.  As recently amended, this bill would require the  
          Office of Victim and Survivor Rights and Services (OVS) within  
          CDCR to be notified when a criminal offender enters into a  
          contract with another person for the sale of the story of a  
          crime for which the offender is convicted and other  
          circumstances are satisfied.  The notification requirement would  
          apply only when the crime is one of the felonies specified in  
          Section 340.3(b), and when an action for damages against the  
          offender is allowed to be commenced prior to the expiration of  
          the SOL specified under Section 340.3(b).


          According to the author, the bill seeks to harness the existing  
          victim notification process within the OVS to require anyone who  
          enters into a contract with a criminal offender for the sale of  








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          the story about the crime to notify OVS that the parties have  
          entered into such a contract.  The bill then requires OVS,  
          within 90 days of receiving such notification, to notify any  
          victim or member of the victim's family who had previously  
          requested notification of the existence of a contract.   
          Proponents assert that these requirements do not restrict the  
          ability of a person or company to enter into a contract for the  
          sale of the offender's story about the crime, but merely require  
          notification to OVS that the contract exists.


          Utilizing the existing OVS Victim Notification Program.   
          Currently, crime victims, their family members, and certain  
          witnesses in a criminal matter may fill out a form (known as the  
          "CDCR 1707 form") to provide their contact information to OVS  
          and request that OVS notify them in the case of certain future  
          events related to a particular criminal offender.  For example,  
          the current CDCR 1707 form allows a person to be notified of the  
          release, escape, or death of the offender; a criminal appeal by  
          the offender; the parole hearing date for an offender sentenced  
          to life imprisonment; and the scheduled execution of an offender  
          sentenced to death.  The form is also used to inform OVS about  
          the existence of a restitution order, as well as any request for  
          special conditions of parole or community supervision when the  
          offender is released from incarceration.  


          According to the author, this bill would simply require OVS to  
          modify its current victim notification process to provide  
          notification of an additional event related to the criminal  
          offender-namely, a contractual relationship with another party  
          for the sale of the story of the crime for which he or she was  
          convicted.  It is envisioned that this could be accomplished by  
          updating the CDCR 1707 form to allow victims and their immediate  
          family members to request such notification, along with the  
          other types of notifications already offered.  It should be  
          noted, however, that the current OVS victim notification program  
             offers victims only notification of events related to an  
          offender that occur while the offender is still an inmate under  








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          custody or supervision of CDCR, which oversees OVS.  Under this  
          bill, OVS would be responsible for notifying those victims who  
          request notification of a contract for the sale of the  
          perpetrator's story to another party.  This contract can only be  
          made after the offender is no longer an inmate, because current  
          CDCR rules prohibit any inmate from actively engaging in a  
          business or profession.  Furthermore, the contract for the sale  
          of the story could potentially be made one day after the  
          perpetrator is discharged from parole, or perhaps several years  
          after parole is terminated.  There is no upper limit on the date  
          when that event could occur.  Consequently, the bill creates a  
          new responsibility for OVS that continues past the date of date  
          when the former inmate is discharged from parole, when the  
          former inmate is no longer under CDCR supervision.  Although the  
          Committee is not aware of any public safety law that might  
          preclude OVS from being mandated to perform this responsibility  
          should this bill become law, it should be noted that OVS  
          notification would only be effective to the extent that victims  
          and their family members maintain updated contact information  
          with OVS for a period of time that could be many years after the  
          parole of the offender.


          Author's amendment to clarify notification requirement.  As  
          currently in print, the notification requirement conditionally  
          applies only when (1) the crime for which the offender was  
          convicted is one of those to which the Section 340.3 statute of  
          limitations specifically applies; and (2) the offender does not  
          fall into one of the categories of people who are specifically  
          exempted from facing suit under Section 340.3.  However, under  
          these conditions, the notification requirement would apply even  
          when the statute of limitations has already run, thus barring  
          suit against the offender.  In order to reflect the author's  
          intent to require notification only when the statute of  
          limitations has not yet run, and the two conditions stated above  
          are also met, the author proposes the following clarifying  
          amendment:










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              On page 4, line 18, strike "Paragraph (2) of subdivision  
              (b)" and insert "Subdivision (b)"


          Previous/pending related legislation.  AB 540 (Campos) would  
          require an entity that enters into certain types of contracts to  
          pay a person, who has been convicted of a crime and who is  
          required to pay restitution, to notify specified entities,  
          including the California Victim Compensation and Government  
          Claims Board, of the amount to be paid.  By comparison to this  
          bill, AB 540 seeks to establish broader notification  
          requirements for entities contracting to compensate convicted  
          offenders for information related to the story of the crime.  AB  
          540 is currently in Assembly Public Safety with reportedly no  
          plans by the author to move it forward now that this bill has  
          been amended to provide for victim notification.


          AB 1938 (Hagman) of 2014 would have authorized, except as  
          provided, an action for damages against a defendant who was  
          found not guilty by reason of insanity to be commenced within 10  
          years of a specified date.  The bill later died in the Senate  
          Judiciary Committee.


          ARGUMENTS IN SUPPORT:  The bill is supported by the California  
          Police Chiefs Association and the California State Sheriffs'  
          Association, the latter of whom states:


               Current law authorizes an action for damages against a  
               defendant within 10 years of the date of discharge  
               from parole, based upon his or her commission and  
               conviction of specified serious felony offenses.   
               These offenses include, but are not limited to, such  
               heinous crimes as murder, rape, sexual abuse of a  
               minor, and assault with a deadly weapon.  Victims of  
               such devastating and violent crimes should be afforded  
               every opportunity by the law to collect remuneration  








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               for their suffering.


          ARGUMENTS IN OPPOSITION:  The bill is opposed by Legal Services  
          for Prisoners with Children (LSPC) who contend that the current  
          ten-year statute of limitations is more than sufficient for a  
          crime victim to bring a civil action for damages.  LSPC states:


               Currently, the statutes of limitations for most civil  
               torts range between six months and three years from  
               the injury.  Currently a person has up to ten years  
               after the completion of parole to bring a civil suit  
               for certain felonies.  This means that a plaintiff has  
               the entire time of trial, incarceration, and parole  
               before the statute of limitations' clock starts  
               running; and then they have a full decade to bring a  
               claim.


               When a person has been off of parole for fifteen years  
               and is trying to move forward with her life, she  
               should be free from the threat of civil litigation for  
               something that happened so long ago, especially after  
               she has paid her debt to society.  This bill would be  
               another way of extending civil penalties on formerly  
               incarcerated people and keeping them from living full  
               and productive lives.  After that length of time, a  
               civil suit will not increase justice or make the  
               plaintiff whole; instead it will only act as another  
               punishment on the defendant.


          The bill is also opposed by the Motion Picture Association of  
          America, Inc. (MPAA), who contends that the bill singles out for  
          regulation certain speech that is protected by the First  
          Amendment, and is therefore unconstitutional.  The MPAA states:










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               AB 538 will have a chilling effect on protected  
               speech.  A person, organization or company that enters  
               into a contract with a convicted person may decline to  
               pursue the story because of the disclosure required by  
               this bill.  This kind of self-censorship inhibits the  
               free flow of information and ideas from government  
               regulation.  The U.S. Supreme Court has ruled many  
               times that laws that promote self-censorship because  
               of the fear of legal consequences  violate the First  
               Amendment as much as laws that directly ban certain  
               speech.  See Smith v. California, 361 U.S. 147, 154  
               (1959).


               In addition, AB 538 would be impractical to  
               administer.  An agreement may not specify an amount of  
               compensation for a convicted person's story and may  
               provide contingent compensation.  This could create an  
               ongoing disclosure requirement by the person,  
               organization, or company to the designated entities in  
               the bill.  And, we also respectfully submit that AB  
               538 could interfere with the routine business  
               contracting process between writers, producers,  
               directors and individuals who happen to be criminal  
               defendants or persons accused of a crime for their  
               knowledge to tell a story involving a criminal case.   
               Such information often provides critical background  
               material and/or the basis for the development of a  
               motion picture or television program.


          Proponents contend that the bill simply requires notification to  
          OVS when a company enters into a contract with a convicted  
          person for the sale of the story, and does not impose a  
          financial burden on the convicted person because of the content  
          of his or her speech.  Existing state law authorizes a civil  
          action against the convicted person based on the commission of  
          the crime for which he or she was convicted.  The Committee also  
          notes that a number of other states currently have statutes that  








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          require an entity that signs a contract with a convicted person  
          for the sale of the story to notify the state that such a  
          contract has been made.  These states include Delaware, Georgia,  
          Hawaii, Indiana, Maryland, Minnesota, Mississippi, New York, and  
          others.  In many cases, those statutes go even farther than the  
          provisions of this bill by requiring the contract itself to be  
          submitted to the state, including disclosure of the terms of the  
          compensation, rather than mere disclosure of the fact that the  
          parties have entered into a contract.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Crime Victims United of California (sponsor)


          California Police Chiefs' Association


          California State Sheriffs' Association




          Opposition


          Legal Services for Prisoners with Children (LSPC)


          Motion Picture Association of America, Inc. (MPAA)










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          Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334