BILL ANALYSIS Ó
AB 538
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ASSEMBLY THIRD READING
AB
538 (Campos)
As Amended May 13, 2015
Majority vote
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|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
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| | | | |
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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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