BILL ANALYSIS Ó
AB 538
Page 1
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