BILL ANALYSIS Ó AB 538 Page 1 ASSEMBLY THIRD READING AB 538 (Campos) As Amended May 13, 2015 Majority vote ------------------------------------------------------------------- |Committee |Votes |Ayes |Noes | | | | | | | | | | | |----------------+------+----------------------+--------------------| |Judiciary |10-0 |Mark Stone, Wagner, | | | | |Alejo, Chau, Chiu, | | | | |Gallagher, | | | | | | | | | | | | | | |Cristina Garcia, | | | | |Holden, Maienschein, | | | | |O'Donnell | | | | | | | |----------------+------+----------------------+--------------------| |Appropriations |15-0 |Gomez, Bigelow, | | | | |Bloom, Bonta, | | | | |Calderon, Chang, | | | | |Eggman, Gallagher, | | | | | | | | | | | | | | |Eduardo Garcia, | | | | |Holden, Quirk, | | | | |Rendon, Wagner, | | | | |Weber, Wood | | | | | | | AB 538 Page 2 | | | | | ------------------------------------------------------------------- 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 10 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 (SOL) 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 10 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 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 (CCP) Section 340.3(b) and resulted in the felony conviction of the offender. AB 538 Page 3 b) An action for damages against the offender is allowed to be commenced pursuant to CCP Section 340.3(b). 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. FISCAL EFFECT: According to the Assembly Appropriations Committee, negligible fiscal impact for OVS to provide the required notifications, which will likely be minimal. COMMENTS: This bill seeks several changes related to California's so-called "Son of Sam" law. First, this 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. This bill also extends by five years (from 10 to 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. This bill further extends the statute of limitations from 10 years to 15 years. In 2002, the Legislature 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) to allow the victim to bring a civil action any time up to 10 years after the defendant is discharged from for convictions of offenses including 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. According to the author, the current 10-year statute of limitations does not provide sufficient time for a crime victim to AB 538 Page 4 pursue damages from an offender who may be compensated by a book, movie or other arrangement for the sale of the story of the crime they committed more than 10 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 30 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 this 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 10 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, the length of time that the offender is incarcerated and serving parole is likely to be substantial, thus providing the victim or family with more than sufficient opportunity to file a AB 538 Page 5 suit for damages. It is not known how many occasions arise each year in which a crime victim is barred by the current 10-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 10 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. 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 AB 538 Page 6 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 this 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. 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 CCP 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 CCP Section 340.3(b). According to the author, this 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 the story about the crime to notify OVS that the parties have entered into such a contract. This 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 AB 538 Page 7 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 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, this 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 Assembly Judiciary 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 AB 538 Page 8 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. This bill is also opposed by the Motion Picture Association of America, Inc. (MPAA), who contends that this bill singles out for regulation certain speech that is protected by the First Amendment, and is therefore unconstitutional. Proponents contend that this 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. Furthermore, a number of other states currently have statutes that 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. Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334 FN: 0000525 AB 538 Page 9