BILL ANALYSIS                                                                                                                                                                                                    



                                                                       AB 538


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          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           |                    |
          |                |      |                      |                    |








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          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.









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             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  








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          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  








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          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  








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          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  








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          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  








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          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















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