BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 538        Hearing Date:    June 30, 2015    
          
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          |Author:    |Campos                                               |
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          |Version:   |May 13, 2015                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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              Subject:  Actions for Damages:  Felony Offenses:  Victim  
 
                                    Notification



          HISTORY

          Source:   Crime Victims United of California

          Prior Legislation:SB 1565 (Schiff) - Ch. 226, Stats. 2000 

                         SB 1330 (Calderon - Ch. 556, Stats. 1994
          Support:       California Police Chiefs Association; California  
                         State Sheriffs' Association

          Opposition:Association of American Publishers; California  
                    Broadcasters Association; Legal Services for Prisoners  
                    with Children; Motion Picture Association of America

          Assembly Floor Vote:                 75 - 0


          PURPOSE

          The purpose of this bill is to 1) extend the statute of  
          limitations for a civil suit by the victim against a criminal  
          offender who was convicted of any of a list of serious felonies  
          from 10 years to 15 years from the date that the offender is  








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          discharged from parole; and 2) require any person or entity that  
          contracts with a criminal offender for the offender's story  
          about any of a list of serious felonies to inform the Office of  
          Victim and Survivor Rights and Services  in the Department of  
          Corrections and Rehabilitation.

          Existing law:   


          Provides that all crime victims have the right under the  
          California Constitution to seek and secure restitution from the  
          perpetrators of these crimes.  Restitution must be ordered in  
          every case without exception.  Where a defendant has been  
          ordered to pay restitution, all money, or property collected  
          from the defendant must be first applied to satisfy restitution  
          orders.  (Cal. Const. Art. 1  28, subd. (b)(13)(A)-(C).)

          Includes a statutory requirement for the sentencing court to  
          order the defendant to pay the victim or victims full  
          restitution for all economic damages.  A restitution order is  
          enforceable as a civil judgment.  There is no statutory limit on  
          the amount of a restitution order.   (Pen. Code  1202.4,  
          subds. (a)(B), (f) and (i).) 

          Requires a defendant, in addition to direct restitution to the  
          victim, to pay a restitution fine of between $300 and $10,000  
          for a felony and $150 and $1,000 for a misdemeanor.  This money  
          is deposited in the Victims of Crime Fund, not provided to the  
          victim in a particular crime.  (Pen. Code  1202.4, subd.  
          (b)(1).)

          Requires a defendant who has been ordered to pay restitution to  
          "prepare and file a disclosure identifying all assets, income,  
          and liabilities in which the defendant held or controlled a  
          present or future interest as of the date of the defendant's  
          arrest. The financial disclosure statements shall be made  
          available to the victim and the [Victims Compensation and  
          Government Claims Board] pursuant to Section 1214.  (Pen. Code   
          1202.4, subd. (f)(5).)

          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  









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          year after judgment is pronounced.  (Code of Civ. Proc.  340.3,  
          subd. (a).)  

          Provides that 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:  murder  
          or attempted murder, mayhem, rape and other specified sexual  
          assault crimes, any felony punishable by death or imprisonment  
          in the state prison for life, or an attempt to commit such a  
          crime, exploding a destructive device so as to cause bodily  
          injury, mayhem, exploding a destructive device with intent to  
          commit murder, or kidnapping.  (Code of Civ. Proc.  340.3,  
          subd. (b)(1).)

          Provides that the extended statute of limitations for a civil  
          action against a convicted criminal defendant does not apply if:

           The defendant has received a certificate of rehabilitation or  
            a pardon;
           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
           The defendant was convicted of 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.  (Code of  
            Civ. Proc.  340.3, subd. (b)(2).)

          Requires that any restitution paid by the defendant to the  
          victim shall be credited against any civil judgment, award or  
          settlement based on the defendant's criminal conduct.  (Code of  
          Civ. Proc.  340.3(e).)

          Provides that the Department of Corrections and Rehabilitation  
          (CDCR) or Board of Parole Hearings (BPH) shall, at least 60 days  
          prior to release of an inmate imprisoned for a violent felony,  
          notify the sheriff or chief of police and the district attorney  
          of the community of conviction and in the community in which the  
          person is scheduled to be released.  (Pen. Code  3058.6, subd.  
          (a)-(b).)









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          Provides that whenever any person confined to state prison is  
          serving a term for the conviction of specified child abuse  
          offenses or any sex offense perpetrated against a minor, as  
          specified, or as ordered by any court, the BPH or CDCR shall, at  
          least 45 days prior to release, notify the sheriff or chief of  
          police, or both, and the district attorney having jurisdiction  
          over the community in which the person was convicted and the  
          community in which the person is scheduled to be released on  
          parole or re-released following a period of confinement pursuant  
          to a parole revocation without a new commitment.  (Pen. Code   
          3058.9.)

          Provides that the sheriff or the chief of police, when notified  
          as to the pending release of a violent felon may, without  
          incurring any liability, notify any person they deem appropriate  
          of the pending release.  (Penal Code  3058.7(a).)

          Requires the CDCR or BPH to send a notice to a victim or witness  
          who has requested notification that a person convicted of a  
          violent felony is scheduled to be released.  (Penal Code   
          3058.8(a).)

          Provides that a prison inmate retains those civil rights that  
          need not be restricted to for penological interests.   
          Specifically, an inmate may inherit, own, sell real or personal  
          property, including all written and artistic material produced  
          or written by the person during the period of imprisonment,  
          except as provide in Civil Code Section 2225  (Pen. Code   
          26001, subd. (a).) 

          Provides through the decision in Keenan v. Superior Court (2002)  
          27 Cal.4th 413 that the requirement in Civil Code Section 2225  
          that any proceeds from convicted criminal's sale of the story of  
          his crime be placed in an involuntary trust violates the  
          constitutional guarantees of freedom of speech. 

          This bill:   


          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  









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          date on which the defendant is discharged from parole.


          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.)


          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:


           The contract is based on a story about a murder, attempted  
            murder, mayhem, rape and other specified sexual assault  
            crimes, any felony punishable by death or imprisonment in the  
            state prison for life, or an attempt to commit such a crime,  
            exploding a destructive device so as to cause bodily injury,  
            mayhem, exploding a destructive device with intent to commit  
            murder, or kidnapping for which the offender was convicted.  

           An action for damages against the offender is authorized by  
            statute.  (See, Code of Civ. Proc.  Section 340, subd. (b).)

            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.



                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  









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          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 









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              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.







          COMMENTS

          1.Need for This Bill

          According to the author:

               Violent criminals should not profit from their crimes.  
               Unfortunately, existing law does not adequately  
               protect victims and their surviving loved ones from  
               the commercial exploitation of violent crimes for  
               entertainment purposes.  AB 538 would increase the  
               statute of limitations from ten years to fifteen to  
               ensure ample time for the victim to pursue civil  
               damages. 

               Additionally, the bill would make use of the existing  
               victim notification systems under the jurisdiction of  
               the California Department of Corrections &  
               Rehabilitation (CDCR) to notify the victim or victim's  
               next of kin when such contractual agreements are  
               taking place.  This is intended to be modeled after  
               the media access law whereby the victim or victim's  
               next of kin should be notified that a media  
               representative has requested to interview the  
               individual, but in no way inhibits their ability to  
               enter in to a contractual agreement with compensation  
               for the sale of the offender's story about the crime. 

               With the increased statute of limitations and  
               notification about the contractual agreement where  
               financial gain is provided to the offender, a victim  
               or victim's next of kin can make an informed decision  









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               about whether to pursue civil damages.

          2.  First Amendment Issues Generally
          
          The three standards of review for determining the validity of a  
          law challenged on First Amendment grounds of freedom of speech  
          are strict scrutiny, intermediate scrutiny and rational basis.  
          While some laws clearly fall into one category or another -  
          banning peaceful protests against a military action is clearly  
          invalid as a content-based restriction - a First Amendment issue  
          can be layered and difficult to determine, as the issues touch  
          virtually every facet of government regulation and contact with  
          citizens.  Complicating First Amendment analysis, courts do not  
          always use consistent terms in describing the applicable  
          interests and standards.

          A regulation based on the content of speech receives strict  
          scrutiny, regardless of whether the speech is contrary to  
          accepted standards of morality or propriety.  While strict  
          scrutiny is certainly applied to political speech, protection of  
          the content of speech is much broader than that.   (Kingsley  
          Corp. v. Regents of the Univ. of the State of N.Y (1959) 360  
          U.S. 684, 688-889; Citizens United v. FEC (2010) 558 U.S. 310.)   
          "If there is a bedrock principle underlying the First Amendment,  
          it is that the government may not prohibit the expression of an  
          idea simply because society finds the idea itself offensive or  
          disagreeable." (Texas v. Johnson (1989) 491 U.S. 397, 414.)  A  
          restriction on the "content" of expression, must promote a  
          "compelling state interest" by the "least restrictive means" to  
          achieve the compelling interest.  (Sable Communications v. FCC  
          (1989) 492 U.S. 115, 126.)  

          A content-based restriction will be struck down as  
          unconstitutionally "overbroad if it prohibits clearly protected  
          speech although the law may also concern conduct that may  
          validly be prohibited.  (U.S. v. Stevens (2010) 130 S.Ct. 1577,  
          1587.)  Stevens considered a federal statute that criminalized  
          the sale or possession of "depictions of animal cruelty," in  
          order to prohibit fetishistic "crush videos" of the killing of  
          animals for sexual gratification.  Stevens was prosecuted for  
          distribution of videos of dog fights and the government argued  
          that the law was limited in intent to such depictions.  The  
          Supreme Court found that the statute was overbroad in that it  
          might reach videos depicting hunting, arguably inhumane  









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          treatment of livestock, or activities legal in some  
          jurisdictions but not others, such as cockfighting.  (Id., at  
          pp. 1588-1592.)  The fact that speech is disturbing cannot be  
          the determinant of whether it can be restricted or not.  

          Intermediate scrutiny requires that a law be substantially  
          related to, or necessary to achieve, an important or substantial  
          governmental interest.  The most common category of speech  
          subject to intermediate scrutiny is commercial speech.   
          Commercial speech is protected, but the state can prohibit or  
          punish false or misleading speech.  (Va. Pharmacy Bd. v. Va.  
          Consumer Council (1976) 425 U.S. 748, 762, 770-773.)  In the  
          Virginia Pharmacy Board case, the court held that the state  
          could not prohibit pharmacies from advertising the prices of  
          prescription drugs.  Intermediate scrutiny applies to a facially  
          content neutral regulation (no direct regulation of the content  
          of speech in the provisions of the law) that has an indirect  
          impairment of speech.  Restrictions on the time, place and  
          manner of speech are subject to intermediate scrutiny.  (United  
          States v. Obrien (1968) 391 U.S. 367; United States v. Albertini  
          1985) 472 U.S. 675.  Obrien upheld a conviction under a federal  
          law prohibiting the burning of a draft card and Albertini upheld  
          the conviction of a man who had entered a military base nine  
          years after the base commander had barred him from returning  
          because he had entered the base and destroyed documents in the  
          first entry. 

          Complicating First Amendment analysis is the apparently growing  
          consideration of whether a law targets a particular class of  
          speakers. Strict scrutiny may be required if the government  
          distinguishes among classes based on the substance of the speech  
          by members of the classes.  (Turner Broadcasting v. FCC (1994)  
          512U.S. 622, 658; Citizens United v. FCC (2010) 558 U.S. 310,  
          340.)  If the class is not regulated based on the content of the  
          speech, it appears that the proper standard of review is  
          intermediate scrutiny.  (Doe v. Harris (2014) 772 F.3d 563,  
          575-576.)

          Unprotected speech or expressive conduct - such as obscenity -  
          is not protected by the First Amendment.  A regulation  
          concerning unprotected speech will be upheld under any rational  
          basis.  (Miller v. California (1973) 413 U.S. 15.)

          3.Public Fascination with Serial Killers and Notorious Criminals









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          Criminals who commit bizarre or horrific crimes have long been  
          the subject of a wide range of books, films and other forms of  
          popular culture and academic analysis.  Jack the Ripper is an  
          early example of wide public fascination with, and mass media  
          coverage about, serial killers.  Jack the Ripper killed women in  
          the East End of London in the 1880s.  Fascination with this  
          killer remains today.<1>  


          The crimes of Charles Manson and his so-called family have  
          created a virtual sub-genre of crime media.  The most notable  
          book - Helter Skelter - was written by the investigating  
          detective, but Manson's writings, statements and musical  
          compositions have been widely distributed.  A Manson follower -  
          Tex Watson - wrote a book about the crimes Manson and his  
          followers committed and also described his conversion to  
          Christianity.  Richard Chase, the so-called vampire killer of  
          Sacramento, was reported to have drunk the blood of victims.   
          Chase gave a long interview with an FBI investigator who is  
          credited with coining the term, "serial killer," and became an  
          author about his cases and serial killers generally.<2>  The  
          fascination with many members of the public with notorious  
          criminals creates a very large demand for books, movies,  
          television shows, on-line content.  Victims and the family  
          members of victims are confronted with such material for their  
          rest of their lives.  


          4.Background on "Son of Sam" Laws and Related Issues

          ---------------------------
          <1>  
          http://www.bbc.co.uk/history/historic_figures/ripper_jack_the.sht 
          ml


          <2>  
          https://books.google.com/books?id=8avgBwAAQBAJ&pg=PA18&dq=Whoever 
          +Fights+Monsters+richard+chase&hl=en&sa=X&ei=pUKIVaulMMnaoASg04OQ 
          Aw&ved=0CB4Q6AEwAA#v=onepage&q=Whoever%20Fights%20Monsters%20rich 
          ard%20chase&f=false










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          The "Son of Sam" laws arose in response to the case of notorious  
          serial killer David Berkowitz.  Berkowitz - who was known as the  
          Son of Sam before his arrest - killed six people, wounded many  
          more and terrorized New York City in the late 1970s.


          Concerns that Berkowitz could profit from his story brought New  
          York State to enact a statute - commonly called the "Son of Sam"  
          law.  Under the law, a contract for a criminal's story about his  
          or her crime must have been disclosed to the state.  All  
          proceeds of the contract were placed in an involuntary trust for  
          the benefit of the criminal's victims.  Similar statutes in  
          other states were also described as Son of Sam laws.  


          The New York Son of Sam law was overturned in Simon & Schuster  
          v. New York Crime Victims Board (1991) 502 U.S. 105.<3>  The  
          case concerned Henry Hill, a lifelong mobster who was arrested  
          on drug trafficking charges in New York in 1980.  In exchange  
                                                                            for immunity from prosecution and a new identity, Hill testified  
          at great length about his former mafia associates.   
          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, supra, 502 U.S. 105.)


          ---------------------------
          <3> Ironically, the Son of Same law was never applied against  
          Berkowitz.  At the time of his prosecution, the law applied only  
          to convicted criminals, and Berkowitz was found incompetent to  
          stand trial.  Berkowitz voluntarily paid his share of book  
          royalties to his victims or their estates.  (Simon & Schuster,  
          supra, 502 U.S. 105, 111.)











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          5.The California Son of Sam Laws


          California passed its own "Son of Sam" law in 1986 to prevent  
          those convicted of notorious crimes from profiting by selling  
          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, as amended in 1994 to cover all things of value derived  
          by the perpetrator from the crime.  (Keenan v. Superior Court  
          (2002) 27 Cal.4th 413).  The court in Keenan quoted Simon &  
          Schuster thus:  "[T]he state has a compelling interest in  
          compensating victims for the fruits of the crime, but little if  
          any interest in limiting such compensation to the proceeds of  
          the wrongdoer's speech about the crime."  (Simon & Schuster,  
          supra, 502 U.S. 105, 120-121.)


          In Keenan, the court found that the law violated the  
          constitutional guarantee of free speech; by imposing a  
          content-based financial penalty on protected speech and that the  
          law chilled the speech rights of the author or creator and the  
          right of the public to receive the communications.   
          Specifically, the law, in seeking to compensate victims,  
          impermissibly went beyond confiscating the proceeds of the crime  
          to reach all income from speech of the criminal that included  
          the story of the crime.  (Id., at pp. 417-418.)   However, the  
          opinion in Keenan is so wide-ranging that it is difficult to  
          summarize. 


          6.Factors for Analyzing Laws that Affect a Contract for a  
            Convicted Criminal's Story


          Simon & Schuster, Keenan and other cases demonstrated the  
          extreme constitutional barriers to drafting a law that directly  
          targets the profits made by a felon from selling the story of  
          his or her crime.  This bill does not impose an involuntary  
          trust and directly take the profits from convicted criminals who  
          have sold their stories to publishers and other media entities.   
          Rather, this bill requires any person or entity that enters into  









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          a contract for a convicted criminal's story to inform the Office  
          of Victim and Survivor Services in the Department of Corrections  
          and Rehabilitation of the contract.


          If enacted, defenders of the law defined by this bill would  
          likely first argue that the bill simply does not regulate or  
          prohibit speech or expressive conduct.  The bill only allows  
          victims and the state to discover sources of income for a  
          convicted criminal who owes restitution or to the victims or has  
          been found civilly liable for those crimes and ordered to pay  
          damages to the victim


          Opponents would likely argue that the bill does target the  
          content of speech. That is, the bill targets a contract about a  
          certain kind of speech.  If the bill is found to regulate or  
          limit the content of speech, the bill would be subject to strict  
          scrutiny.  The bill could only withstand challenge if it upheld  
          a compelling state interest.  In light of the history of  
          challenges to content- based speech, the state could have great  
          difficulty establishing the validity of the law.  The decisions  
          in Simon and Schuster and Keenan struck down laws that imposed a  
          "financial burden" or "direct financial disincentive" on speech  
          about the perpetrator's crime.  (See, Keenan at p. 427.)  


          An argument that the bill only seeks to discover sources of  
          income due a convicted criminal, not to  limit speech, face  
          challenges.  The bill only applies to contracts involving a  
          convicted criminal's story about his or her crime.  It does not  
          apply to any other contract under which he or she is due money -  
          the sale of a house, for example.  As in this bill, the New York  
          law required a media entity to report any contract with a  
          criminal for his or her story to the New York Crime Victims  
          Board, but New York took the extra step of requiring that money  
          due under the contract be placed in an escrow account for the  
          benefit of victims.  (See, Keenan at p. 423.)


          Opponents would likely argue that the bill simply breaks the  
          process of paying the proceeds of a convicted criminal's speech  
          into steps, rather than requiring the money due under the  
          contract to be directly paid to a trust to benefit the victim.   









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          In most cases, the victim will hold the equivalent of a civil  
          judgment in an award or order of restitution.  This bill also  
          extends the statute of limitation for a civil action against the  
          convicted criminal based on specified serious and violent  
          crimes.  Thus, it can be argued that the bill essentially  
          funnels the proceeds of a contract for the speech or expression  
          of a perpetrator to the victim of his or her crime.


          7.Prior Restraint Issues


          Persons and entities subject to reporting requirements will also  
          argue that the bill is an unconstitutional prior restraint on  
          speech, as the bill requires disclosure of a contract for a  
          story or account about a crime incident by the perpetrator  
          before the story is stated or written.  Prior restraint is a  
          companion concept to that of a "chilling effect" on expressive  
          conduct because of a regulation or limitation concerning  
          speech.<4>


          The Motion Picture Association of America, Association of  
          American Publishers and California Broadcasters Association have  
          argued that the bill will have a chilling effect on protected  
          speech. Arguably, publications and other forms of media could  
          forgo seeking the story of a convicted offender to avoid  
          negative publicity and criticism when it is revealed that the  
          entity contracted with a notorious criminal's story.  The bill  
          also raises the issue of the speech and contracting rights of a  
          publisher, audio-visual media entity, or agent.  That is, the  
          contract that must be reported includes the speech of the other  
          party to a contract with the criminal.  The contract would  
          likely otherwise remain confidential from competitors.  The  
          resolution of this issue is not clear.


          8.Intermediate Scrutiny if the Bill is Content-Neutral; and  
            Requirement that Laws that affect Speech be Tailored or  
          ---------------------------


          <4>  
          http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=37 
          61&context=fss_papers








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            Necessary to Advance an Important Government Interest 


          The bill could also be found to be content-neutral on its face,  
          but nevertheless imposes a burden on speech.  The bill would  
          enter the rather slippery and uncertain world of intermediate  
          scrutiny.  In this context, the state would need to show that it  
          advances an important state interest in a way that is narrowly  
          tailored to do so.  As noted, courts will review any law that  
          prohibits burdens or regulates speech to determine if the law is  
          narrowly tailored to promote the state's interest.  


          Recently, the Federal 9th Circuit Court of Appeals ruled on the  
          constitutionality of the California law that requires each  
          registered sex offender to disclose his internet identifiers as  
          part of registration information.  The court held that the law  
          does not directly regulate the content of speech, but is subject  
          to intermediate scrutiny because is affects the First Amendment  
          rights of the class of persons: 

               Although California clearly has a legitimate interest,  
               the more difficult question is whether the means  
               California has chosen "'burden[s] substantially more  
               speech than is necessary to further the government's  
               legitimate interests.'" Turner, 512 U.S. at 662<5>  
               (quoting Ward, 491 U.S. at 799).  "The Constitution  
               gives significant protection from overbroad laws that  
               chill speech  within the First Amendment's vast and  
               privileged sphere."  Ashcroft v. Free Speech  
               Coalition, 535 U.S. 234, 244, 122 S. Ct. 1389, 152 L.  
               Ed. 2d 403 (2002). The concern that an overbroad  
               statute deters protected speech is especially strong  
               where, as here, the statute imposes criminal  
               sanctions. See Virginia v. Hicks, 539 U.S. 113, 119,  
               123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003).  (Doe v.  
               Harris (2014) 722 F.3d 563, 578.)

          The sponsor argues that the bill is narrowly and reasonably  
          focused or tailored to serve the substantial governmental  
          interest in assisting crime victims in obtaining recompense from  
          criminal offenders.  In particular, before a crime victim files  
          a civil suit against the perpetrator of the crime, he or she  



          ---------------------------


          <5> Turner Broadcasting v. FCC (1994) 512 U.S. 92,)






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          would generally need to know whether the perpetrator has any  
          assets or source of income.  A judgment against someone who is  
          judgment proof is of little economic value and the process of  
          the lawsuit could be very emotionally painful.  The lawsuit  
          would examine the crime again and likely require the victim to  
          engage in depositions about the crime and the harm it caused the  
          victim or the victim's family.


          A crime perpetrator who was convicted of one of the crimes  
          covered by the civil action statute - and covered by the notice  
          requirement in this bill - likely served a long prison term.  He  
          or she would not likely have any assets or income, except  
          perhaps a contract for a story about the crime the perpetrator  
          committed.  This bill would require notice that the perpetrator  
          has made such a contract, informing the victim that there could  
          be a assets to seize from the perpetrator through a judgment in  
          a civil suit.  It appears unlikely that a victim or a victim's  
          family would exercise the right to sue without some expectation  
          of collecting any judgment.  Thus, it can be argued that the  
          bill does not provide for notice of other sources of income or  
          assets because they are not likely to exist.  


          9.Extent of Required Disclosure of a Contract for a Convicted  
            Criminal's Story


          This bill requires a person or entity that enters into a  
          contract with a criminal offender convicted of specified serious  
          felonies for the story of the crime to notify the Office of  
          Victim and Survivor Rights and Services within CDCR "that the  
          parties "have entered into a contract for the sale of the  
          offender's story."  It is not entirely clear what must be  
          disclosed.  Does an agreement to pay a relatively small fee for  
          a limited-time option on a story about the crime constitute a  
          contract for the story?  Does an agreement by the offender to  
          discuss the crime with a publisher or media entity, without a  
          promise that the offender would control the content of the  
          story, constitute a contract for the story?  Could CDCR demand  
          to view the contract to determine the nature of the agreement.   
          Further, as noted above, there is no enforcement mechanism for  
          the requirement that a person or entity disclose that a contract  
          has been made with the offender has been made.  Arguably, the  









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          requirement simply serves as a disincentive for a publisher or  
          media entity to enter into a contract to avoid the negative  
          publicity or notice that could come with the disclosure. 


          10. This Bill Extends The Statute Of Limitations For a Suit  
            against a Convicted Criminal    for the Harm caused by  
            Specified Serious Felonies From Ten Years To 15 Years 


          Simon & Schuster, Keenan and other cases demonstrated the  
          daunting constitutional barriers to   drafting a law that  
          directly targets the profits made by a felon from selling the  
          story of his or her crime.  In 2002, the Legislature took an  
          alternative approach and extended 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.  


          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 of the story of  
          the crime they committed more than ten years after they are  
          paroled.  


          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 statute of limitations  
          does not start running until the date when the offender is  
          discharged from parole.  









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          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 statute of  
          limitations bars such an action, it is thought that the vast  
          majority of cases are likely served by the current limitation's  
          period of ten years from the date of perpetrator's discharge  
          from parole.


          11.This Bill Exempts Persons Released from Prison pursuant to a  
            Habeas Corpus Petition From Being Sued For Damages Based On  
            the Person's Conviction


          Existing law specifically exempts from suit 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 rehabilitation.  This bill would also  
          exempt from suit any person who was "unlawfully imprisoned or  
          restrained but has been released after successfully prosecuting  
          a writ of habeas corpus pursuant to" Penal Code Section 1473 and  
          related statutes.  


          While this provision would apply to innocent persons who were  
          wrongly convicted, it would appear to apply in other cases.   
          Penal Code Section 1473 specifically refers to cases where false  
          evidence was used against a defendant at trial.  However, the  
          writ is not limited to such cases. It appears that a person  
          could prevail in a habeas corpus action because he or she was  
          held beyond the maximum sentence for the crime of conviction,  
          not that the person was innocent.  The granting of the writ  
          would not affect the conviction itself, and thus the grounds for  
          suit against the offender based on the crime. 


          Further, the fact that false evidence was used at trial or some  









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          other factor requires reversal of a conviction through a habeas  
          corpus petition does not establish a person's innocence. An  
          inmate could prevail in a habeas corpus petition, have the  
          conviction reversed and then be retried and convicted.  It is  
          not entirely clear how the civil action statute would be applied  
          in such a case, as the statute arguably contains conflicting  
          provisions.  The bill could provide that an innocent person who  
          was wrongly convicted is immune from suit, regardless of whether  
          the victim accepts that the person is innocent, while still  
          allowing suit in circumstances where a habeas corpus petition  
          was granted on grounds other than innocence.


          12.Utilizing the Existing Victim Notification Program for Notice  
            that an Offender has Contracted to tell His or Her Story of  
            the Crime


          Currently, crime victims, their family members, and certain  
          witnesses in a criminal matter may provide their contact  
          information to OVS and request that OVS notify them in the case  
          of certain future events related to criminal offender.  For  
          example, one 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 has been asserted that an inmate could not enter into a  
          contract to sell his or her story about the crime of conviction  
          because an inmate cannot conduct a business or profession in  
          prison.  However, there appears to be no statutory bar to an  









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          inmate entering into contracts, including for the sale of his or  
          her story.  Penal Code Section 2600 provides that inmates lose  
          only those civil rights necessary for legitimate penological  
          purposes. Penal Code Section 2601 specifically provides that an  
          inmate may sell?all written and artistic material produced or  
          created by the person during the period of imprisonment. The  
          only exceptions to this specific rule appear to be the  
          provisions in Civil Code Section 2225 concerning sale of an  
          inmate's story about his or her crime. Those provisions were  
          found to be unconstitutional in the Keenan case.





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