BILL ANALYSIS                                                                                                                                                                                                    




                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 538 (Campos)
          Version: May 13, 2015
          Hearing Date: July 14, 2015
          Fiscal: Yes
          Urgency: No
          RD


                                        SUBJECT
                                           
             Actions for damages:  felony offenses:  victim notification

                                      DESCRIPTION 

          Existing law provides that a tort action for damages based upon  
          the defendant's commission of a felony offense for which the  
          person has been convicted must be brought within one year after  
          the judgment of conviction is pronounced.  Existing law provides  
          a limited exception to this one year statute of limitations  
          which permits, except under certain circumstances, a tort action  
          to be filed up to ten years after the person is discharged from  
          parole, if the person was convicted of a qualifying serious  
          felony.  

          This bill would extend the time to file a tort action against a  
          person convicted of a qualifying serious felony to 15 years  
          after the person has been discharged from parole.  This bill  
          would also add a new exception to this longer statute of  
          limitations where the defendant was unlawfully imprisoned or  
          restrained but has been released from prison after successfully  
          prosecuting a writ of habeas corpus pursuant to specified law. 

          This bill would separately require a person or entity that  
          enters into a contract with a criminal offender for the sale of  
          the story of a crime for which the offender was convicted to  
          notify the California Department of Corrections and  
          Rehabilitation's Office of Victim and Survivor Rights and  
          Services (OVS) that the parties have entered into a contract for  
          sale of the offender's story if certain conditions are met.   
          This bill would require that within 90 days of being notified,  
          the OVS notify any victim or member of the victim's immediate  
          family, as defined, who has requested notification of the  








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          existence of a contract described by this section.

                                      BACKGROUND  

          In 2002, the California State Supreme Court, in Keenan v.  
          Superior Court (2002) 27 Cal.4th 413, invalidated a portion of  
          this state's "Son of Sam" law that sought to prevent a convicted  
          felon from exploiting the felon's criminal acts for financial  
          gain by seizing the profits of the exploitative expressive act  
          (such as the selling of the felon's story rights) and holding  
          the proceeds in an involuntary trust for the victims.  Due to  
          the difficulties in drafting a Son of Sam law that would pass  
          constitutional muster, and wanting to restore some ability for  
          victims of crime to recover against those that harmed them, the  
          Legislature enacted SB 1887 (McPherson, Ch. 633, Stats. 2002) to  
          take a new approach: extending the statute of limitations to  
          file a tort action that can legally reach all of the defendant's  
          assets, regardless of source.  
          
          Specifically, since 1983, the California Code of Civil Procedure  
          Section 340.3 was enacted to provide that the time for  
          commencing a tort action for damages based upon the defendant's  
          commission of a felony offense for which the person has been  
          convicted is within one year after the judgment of conviction is  
          pronounced.  (See Code Civ. Proc. Sec. 340.3(a).)  SB 1887  
          created a special exception to this rule, whereby it authorized  
          such a tort action to be filed up to 10 years after the person  
          is discharged from (i.e. completed) parole, except under certain  
          circumstances, if the person was convicted of one of a series of  
          enumerated "serious felonies," which include: murder, attempted  
          murder; kidnapping; rape; oral copulation, sodomy, or foreign  
          object rape by force, violence, duress, menace, threat of great  
          bodily injury, or fear of immediate and unlawful bodily injury  
          on the victim or another person; the commission of forcible  
          rape, spousal rape, or foreign object rape, in concert with  
          another person; continuous substantial sexual conduct (three or  
          more acts) with a child under age 14, and; attempt to commit any  
          felony punishable by death or imprisonment in the state prison  
          for life.   

          This bill would now extend the statute of limitations to  
          commence a claim against a defendant convicted of one of the  
          above qualifying serious felonies, based on the commission of  
          that felony, to 15 years after the defendant's completion of  








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          parole, subject to existing exceptions and a new exception added  
          by this bill, as specified.  This bill would also require a  
          person or entity that enters into a contract with a criminal  
          offender for the sale of the story of a crime for which the  
          offender was convicted to notify the Office of Victim and  
          Survivor Rights and Services (OVS) that the parties have entered  
          into a contract for sale of the offender's story if certain  
          conditions are met-namely, the offender committed one of the  
          qualifying serious felonies, above, and no exception to the  
          longer statute of limitations applies.  This bill would, in  
          turn, require that the OVS, within 90 days of being notified,  
          notify any victim or member of the victim's immediate family, as  
          defined, who has requested notification of the existence of such  
          a contract.

                                CHANGES TO EXISTING LAW
           
           Existing federal law  , the U.S. Constitution, provides that  
          Congress shall make no law abridging the freedom of speech, or  
          of the press, or the right of the people peaceably to assemble,  
          and to petition the government for a redress of grievances.   
          (U.S. Const., 1st Amend., as applied to the states through the  
          14th Amendment's Due Process Clause; see Gitlow v. New York  
          (1925) 268 U.S. 652.) 

           Existing state law  , the California Constitution, provides for  
          the right of every person to freely speak, write and publish his  
          or her sentiments on all subjects, being responsible for the  
          abuse of this right.  Existing law further provides that a law  
          may not restrain or abridge liberty of speech or press.  (Cal.  
          Const., art. I, Sec. 2(a).)  
           

            Existing state law  , the California Constitution, provides that  
          in order to preserve and protect a victim's rights to justice  
          and due process, a victim shall be entitled to the specified  
          rights, including the right to restitution.  Existing law  
          further provides that:

           it is the unequivocal intention of the People of the State of  
            California that all persons who suffer losses as a result of  
            criminal activity shall have the right to seek and secure  
            restitution from the persons convicted of the crimes causing  
            the losses they suffer; 








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           restitution shall be ordered from the convicted wrongdoer in  
            every case, regardless of the sentence or disposition imposed,  
            in which a crime victim suffers a loss.

           all monetary payments, monies, and property collected from any  
            person who has been ordered to make restitution shall be first  
            applied to pay the amounts ordered as restitution to the  
            victim.  (Cal. Const., art. I, Sec. 28(b)(13)(A)-(C).) 

           Existing law  states the intent of the Legislature that a victim  
          of crime who incurs an economic loss as a result of the  
          commission of a crime shall receive restitution directly from a  
          defendant convicted of that crime.  (Pen. Code Sec.  
          1202.4(a)(1).)  Existing law, in relevant part, requires that  
          the sentencing court order the defendant to pay full restitution  
          to the victim or victims for all economic damages, except as  
          specified, and provides that a restitution order shall be  
          enforceable as a civil judgment.  (Pen. Code Sec.  
          1202.4(a)(3)(B), (f), (i).)

           Existing law  requires, in every case where a person is convicted  
          of a crime, that the court impose a separate and additional  
          restitution fine (in addition to the direct restitution to the  
          victim, above), set at the discretion of the court and  
          commensurate with the seriousness of the offense, unless the  
          court finds compelling and extraordinary reasons for not doing  
          so and states those reasons on the record.  This money is  
          deposited into the Victims of Crime Fund.  (Pen. Code Sec.  
          1202.4(b)(1).)

           Existing law  provides that a defendant who has been ordered to  
          pay restitution must prepare and file a disclosure, as  
          specified, 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  
          specified law.  (Pen. Code Sec. 1202.4(f)(5).)

           Existing law  provides that, unless a longer period is prescribed  
          for a specific action, the time for commencing a tort action for  
          damages based upon the defendant's commission of a felony  
          offense for which the person has been convicted, is generally  








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          within one year after the judgment of conviction is pronounced.   
          (Code Civ. Proc. Sec. 340.3(a).)  

           Existing law  provides that an action for damages against a  
          defendant based on the defendant's commission of a felony  
          offense for which the defendant has been convicted may be  
          commenced within 10 years of the date on which the defendant is  
          discharged from parole, if the conviction was for a qualifying  
          serious felony.  The qualifying serious felonies are:
           murder, attempted murder; 
           mayhem; 
           kidnapping; 
           rape; 
           oral copulation, sodomy, or foreign object rape by force,  
            violence, duress, menace, threat of great bodily injury, or  
            fear of immediate and unlawful bodily injury on the victim or  
            another person; 
           the commission of forcible rape, spousal rape, or foreign  
            object rape, in  concert with another person;
           lewd or lascivious act on a child under the age of 14 years; 
           continuous substantial sexual conduct (three or more acts)  
            with a child under age 14;   
           attempt to commit any felony punishable by death or  
            imprisonment in the state prison for life;
           exploding a destructive device or any explosive causing bodily  
            injury, great bodily injury, or mayhem;  or 
           exploding a destructive device or any explosive with intent to  
            murder.  (Code Civ. Proc. Sec. 340.3(b)(1).)  

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

           Existing law  requires the Department of Corrections and  
          Rehabilitation (CDCR) or Board of Parole Hearings (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.  (Pen. Code Sec. 3058.8(a).)

           Existing law  provides that a prison inmate retains specified  
          civil rights that need not be restricted to penological  
          interests.  Existing law, in relevant part, provides that these  
          civil rights include the right of an inmate to inherit, own,  








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          sell real or personal property, including all written and  
          artistic material produced or written by the person during the  
          period of imprisonment, except as provided in Civil Code Section  
          2225 (the state's Son of Sam statute, which has been invalidated  
          in part, as described below).  (Pen. Code Sec. 2601(a).) 

           Existing case law  , Keenan v. Superior Court (2002) 27 Cal.4th  
          413, provides that the Son of Sam Law referenced above, violates  
          the constitutional guarantees of freedom of speech insofar as it  
          imposes an involuntary trust upon all proceeds and profits  
          derived from the sale of rights to, or materials based on, the  
          story of a notorious crime for which a felon has been convicted.

           This bill would extend the time to file a tort action against a  
          person convicted of a qualifying serious felony, above, from 10  
          years upon discharge from parole to 15 years upon discharge of  
          parole.  This bill would also add a new exception to the  
          application of the longer statute of limitations for qualifying  
          serious felonies where the defendant was unlawfully imprisoned  
          or restrained but has been released from prison after  
          successfully prosecuting a writ of habeas corpus pursuant to  
          specified law. 

           This bill  would add a new provision to require a person or  
          entity that enters into a contract with a criminal offender for  
          the sale of the story of a crime for which the offender was  
          convicted to notify the Office of Victim and Survivor Rights and  
          Services (OVS) within the California Department of Corrections  
          and Rehabilitation that the parties have entered into a contract  
          for sale of the offender's story if:  (1) the conviction was for  
          one of the qualifying serious felonies, listed above; and (2)  
          none of the specified exceptions to the longer statute of  
          limitations for actions arising out of the offender's commission  
          of a qualifying serious felony apply, precluding commencement of  
          a civil action against the criminal offender.  

           This bill  would provide that within 90 days of being notified,  
          the OVS must notify any victim or member of the victim's  
          immediate family, as defined, who has requested notification of  
          the existence of such a contract. This bill would define  
          "immediate family member" to mean a spouse, child, parent,  
          sibling, grandchild, or grandparent. 

                                        COMMENT








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          1.    Stated need for the 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 about whether to pursue civil  
            damages.

          In support of the bill, the California State Sheriffs'  
          Association writes that "[v]ictims of such devastating and  
          violating crimes should be afforded every opportunity by the law  
          to collect remuneration for their suffering." 

          2.    Bill would increase the statute of limitations to bring a  
            civil action against a defendant where the action arises out  
            of the commission of a specified serious felony  

          A statute of limitations is a requirement to commence legal  
          proceedings (either civil or criminal) within a specific period  








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          of time.  Statutes of limitations are tailored to the cause of  
          action at issue - for example, cases involving injury must be  
          brought within two years from the date of injury, cases relating  
          to written contracts must be brought four years from the date  
          the contract was broken, and, as commonly referenced in the  
          media, there is no statute of limitations for murder.  Although  
          it may appear unfair to bar actions after the statute of  
          limitations has elapsed, the limitations period serves important  
          policy goals that help to preserve both the integrity of our  
          legal system and the due process rights of individuals.  The  
          purpose is to prevent the assertion of stale claims and,  
          ultimately, "to promote justice by preventing surprises through  
          the revival of claims that have been allowed to slumber until  
          evidence is lost, memories have faded, and witnesses have  
          disappeared."  (3 Witkin Cal. Proc. Actions Sec. 433.)  

          Accordingly, under California law, civil actions, without  
          exception, can only be commenced within the periods prescribed  
          in this title, after the cause of action shall have accrued,  
          unless where, in special cases, a different limitation is  
          prescribed by statute.  (Code Civ. Proc. Sec. 312.)  Currently,  
          most civil actions (not involving recovery of real property) are  
          generally subject to one to four year statutes of limitations.   
          These include civil actions for assault, battery, wrongful  
          death, professional malpractice, fraud, libel or slander, or  
          false imprisonment.  (See e.g. Code Civ. Proc. Sec. 335 et seq.)  
          In limited instances, the state also provides for a ten year  
          statute of limitations.  (See e.g. Code Civ. Proc. Sec. 337.15,  
          340.3, 337.5.)  Additionally, where no specific statute of  
          limitations is assigned to a particular type of relief, a four  
          year statute of limitations generally applies.  (Code Civ. Proc.  
          Sec. 343.)  Certain exceptions have been made, however, that  
          recognize the specific difficulties posed for some victims to  
          bring their claims within those shorter statutes of limitations.  
           For example, California law was amended in recent years to  
          provide for a five year statute of limitations for victims of  
          human trafficking (and eight years upon reaching age of majority  
          if the victim was a minor).  Similarly, victims of childhood  
          sexual abuse have specifically been provided an eight year  
          statute of limitation from the date the plaintiff attains the  
          age of majority or within three years of the date the plaintiff  
          discovers or reasonably should have discovered that  
          psychological injury or illness occurring after the age of  
          majority was caused by the sexual abuse.  (See Civ. Code Sec.  








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          52.5 and Code Civ. Proc. Sec. 340.1, respectively.)

          Most pertinent to this bill is a special 10 year statute of  
          limitations for bringing claims against defendants who have been  
          convicted of specified serious felonies.  Specifically, under  
          existing law, Code of Civil Procedure Section 340.3, the general  
          time for commencing a tort action for damages based upon the  
          defendant's commission of a felony offense for which the person  
          has been convicted is generally within one year after the  
          judgment of conviction is pronounced.  As noted in the  
          Background, in response to the invalidation of the state's "Son  
          of Sam" law by the California Supreme Court in Keenan v.  
          Superior Court (2002) 27 Cal.4th 413, that section was amended  
          in 2002 to create an exception to allow a tort action to be  
          filed against a defendant based upon his or her commission of a  
          qualifying "serious felony" (which includes felonies such as  
          murder, attempted murder; kidnapping; rape; or attempt to commit  
          any felony punishable by death or imprisonment in the state  
          prison for life) for up to 10 years after the defendant has been  
          discharged from parole, except under certain circumstances.  

          This bill would now extend the statute of limitations to  
          commence a claim against a defendant convicted of a qualifying  
          serious felony, based on the commission of that felony, to 15  
          years after the defendant's date of parole.  Thus, if the  
          conviction resulted in a 25 year prison sentence, assuming that  
          the defendant serves even 20 years of that sentence before  
          qualifying for parole, the claim could be commenced in that  
          situation up to 35 years after the crime was committed.   
          Arguably, assuming that a person convicted of a qualifying  
          serious felony serves even five to 10 years before being  
          eligible for parole, this bill would allow for the claim to be  
          brought upwards of 20 or 25 years after the fact (a five year  
          extension from existing law).  

          As a matter of public policy, shorter statute of limitations   
          encourage plaintiffs to bring their claims in a timely fashion,  
          thereby reducing due process concerns for defendants and the  
          likelihood that the plaintiffs' own evidence will grow stale.   
          The following amendment would cause the bill to revert back to  
          the existing 10 year statute of limitations upon completion of  
          the defendant's parole. 

             Suggested Amendment:








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            On page 2, line 11, strike "15" and insert "10" 

          3.   Potential First Amendment implications of this bill 

          This bill would require a person or entity that enters into a  
          contract with a criminal offender for the sale of the story of a  
          crime for which the offender was convicted to notify the Office  
          of Victim and Survivor Rights and Services (OVS) that the  
          parties have entered into the contract if certain conditions are  
          met-namely, the offender committed one of the qualifying serious  
          felonies for which a longer 10 year statute of limitations  
          applies (15 years under this bill), and no exception to the  
          longer statute of limitations applies.  This bill would, in  
          turn, require that OVS, within 90 days of being notified, notify  
          any victim or member of the victim's immediate family, as  
          defined, who has requested notification of the existence of such  
          a contract. 

              a.   Relevant First Amendment jurisprudence, generally 

             By way of background, constitutional challenges to  
            governmental laws for violations of various rights are  
            generally subjected to three different levels of tests:  
            rational basis, intermediate scrutiny, or strict scrutiny.   
            Rational basis is frequently applied, for example, to economic  
            regulations.  Under this test, a law will be upheld if it is  
            rationally related to a legitimate government purpose (i.e. a  
            legitimate goal for the government to pursue).  In fact, the  
            purpose or goal need not even be the actual purpose of the  
            regulation being litigated, but rather, any conceivable  
            purpose would be sufficient.  Intermediate scrutiny, on the  
            other hand, the middle tier of review, applies in cases  
            involving, for example, commercial speech regulations.  Under  
            this test, a law will be upheld if it is substantially related  
            to an important (as opposed to any legitimate) governmental  
                                                                                         purpose.  Lastly, the most intensive type of judicial review  
            given to constitutional challenges of government regulations  
            is strict scrutiny.  This level of review is what is provided  
            to laws that discriminate based on suspect classes such as  
            race or national origin, and laws that interfere with the  
            freedom of speech.  Under strict scrutiny, a law will be  
            upheld only if it is necessary to achieve a compelling state  
            interest.  "Necessary" requires that the law be the least  








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            restrictive alternative to achieving the stated ends.  At  
            times, the Court has said that strict scrutiny requires that  
            the regulation be narrowly tailored to furthering compelling  
            governmental interests.   (See Chemerinksy, Constitutional  
            Law, Constitutional Law Principles and Policies (2011) 4th  
            Edition, pp. 552-553.)

            Notably, though it receives only intermediate scrutiny,  
            commercial speech is a form of speech protected by the First  
            Amendment.  (See Virginia State Board of Pharmacy v. Virginia  
            Citizens Consumer Council (1976) 425 U.S. 748.)  That being  
            said, it is not entirely clear what is defined as commercial  
            speech, besides price advertising.  Thus, while newspapers,  
            movies, books, and the like are forms of speech that can be  
            sold, the Courts have made clear that the sale of speech does  
            not automatically render it commercial speech.  (Id. at 761,  
            "speech does not lose its First Amendment protection because  
            money is spent to project it, as in a paid advertisement of  
            one form or another. [citing Buckley v. Valeo (1976) 424 U.S.  
            1, 35-59; New York Times Co. v. Sullivan (1964) 376 U.S. 254  
            at 266].  Speech likewise is protected even though it is  
            carried in a form that is 'sold' for profit, [citing Smith v.  
            California, 361 U.S. 147, 150 (1959) (books); Joseph Burstyn,  
            Inc. v. Wilson, 343 U.S. 495, 501 (1952) (motion pictures);  
            Murdock v. Pennsylvania (1943) 319 U.S. 105, 111 (religious  
            literature)] and even though it may involve a solicitation to  
            purchase or otherwise pay or contribute money [citing New York  
            Times Co. v. Sullivan, supra; NAACP v. Button (1963) 371 U.S.  
            415, 429; Jamison v. Texas (1943) 318 U.S. 413, 417; Cantwell  
            v. Connecticut (1940) 310 U.S. 296, 306-307 (1940)].")  

            That being said, even if the speech captured by various media  
            forms such as books, movies, newspapers, broadcasts, etc., are  
            generally fully protected under the First Amendment and  
            subject to strict scrutiny, it is important to note that not  
            all protected speech is absolutely protected under the First  
            Amendment.  For example, as noted by the U.S. Supreme Court in  
            Brandenburg v. Ohio (1969) 395 U.S. 444, 447, speech can lose  
            its constitutional protections in rare circumstances where it:  
             (1) involves the likelihood of imminent lawless action; and  
            (2) is directed at inciting or producing that imminent lawless  
            action.  There are other categories of speech that are  
            unprotected or less protected by the First Amendment, such as  
            obscenity, or defamation.  That being said, this bill is not  








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            necessarily a regulation of a lesser-protected form of speech;  
            the selling of one's story rights relating to a serious crime,  
            however reprehensible, is neither illegal, nor does it involve  
            a type of inherently unprotected speech.  Indeed, as stated by  
            Justice Brennan: "[i]f 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.)  

            Additionally, the U.S. Supreme Court has held on numerous  
            occasions that at the very core of the First Amendment is the  
            principle that the government may not regulate speech based on  
            its content, and that content-based restrictions are  
            presumptively invalid.  (See RAV v. City of St. Paul (1992)  
            505 U.S. 377, 382.)  For example, a law regulating speech is  
            content-neutral if it applies to all speech regardless of the  
            message.  A law making all picketing, except labor picketing,  
            unconstitutional, would be content-based.  A law prohibiting  
            anti-war protests would be both content-based and a viewpoint  
            regulation.  So, too, would a law that prohibits any speech  
            about war (subject matter regulation).  In contrast, a law  
            prohibiting the posting of all signs on public utility poles  
            would be content- and viewpoint neutral.  The concern here is  
            that government will target particular messages and attempt to  
            control thoughts on a topic by regulating speech.  As stated  
            by the U.S. Supreme Court in the case of Simon & Schuster,  
            Inc. v. Members of the New York St. Crime Victims Board (1991)  
            502 U.S. 105, 116, "[such restrictions] raise the specter that  
            the government may effectively drive certain ideas or  
            viewpoints from the marketplace."  (See Chemerinksy at p.  
            962.) 

             b.     First amendment concerns relating to "Son of Sam" Laws

             Under such line of reasoning, as discussed above, the U.S.  
            Supreme Court, in Simon & Schuster, struck down a state law  
            that prevented an accused or convicted criminal from profiting  
            from selling the story of his or her crime to any media for  
            violating the First Amendment. The dubbed "Son of Sam" law  
            (named after serial killer David Berkowitz, who terrorized New  
            York in the 1970s and was popularly known as the "Son of Sam"-  
            though the law, ironically, was never applied to him) placed  
            any funds received from works describing the crime into an  








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            escrow account that was used for restitution to victims of the  
            crime and for paying the criminal's other creditors.  In that  
            case, Henry Hill, an organized crime figure, who was arrested  
            on drug trafficking charges in 1980, testified at great length  
            about his former colleagues in exchange for immunity from  
            prosecution and a new identity.  Subsequently, in 1981, Hill  
            signed a contract with Simon & Schuster to publish a book  
            recounting his life.  The book, Wiseguy, was published in 1986  
            and depicted, in colorful detail, the day-to-day existence of  
            organized crime. The book was also a commercial success, and  
            was later made into the movie Goodfellas, which was itself a  
            commercial success that won a host of awards in 1990.  Then,  
            in 1987, the New York State Crime Victims Board (Board) issued  
            a proposed determination and order. Wiseguy was covered by the  
            law, that Simon & Schuster had violated the law by failing to  
            turn over its contract with Hill to the Board and by making  
            payments to Hill, and that all money owed to Hill under the  
            contract had to be turned over to the Board to be held in  
            escrow for the victims of Hill's crimes. The Board ordered  
            Hill to turn over the payments he had already received, and  
            ordered Simon & Schuster to turn over all money payable to  
            Hill at the time or in the future.  As a result, Simon &  
            Schuster brought suit, seeking a declaration that the Son of  
            Sam law violates the First Amendment and an injunction barring  
            the statute's enforcement.  (Id. at 114-115.) 

            As stated by the Court, "[a] statute is presumptively  
            inconsistent with the First Amendment if it imposes a  
            financial burden on speakers because of the content of their  
            speech.  [Citation omitted] [ . . . ] The Son of Sam law is  
            such a content-based statute. It singles out income derived  
            from expressive activity for a burden the state places on no  
            other income, and it is directed only at works with a  
            specified content.  Whether the First Amendment 'speaker' is  
            considered to be Henry Hill, whose income the statute places  
            in escrow because of the story he has told, or Simon &  
            Schuster, which can publish books about crime with the  
            assistance of only those criminals willing to forgo  
            remuneration for at least five years, the statute plainly  
            imposes a financial disincentive only on speech of a  
            particular content."  (Simon & Schuster, 502 U.S. at 115-116.)  
             Accordingly, applying strict scrutiny to that law, the Court  
            first looked to the proffered interests of the state,  
            acknowledging that there is little doubt that compensating  








          AB 538 (Campos)
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            crime victims is as a compelling governmental interest as is  
            ensuring that criminals do not profit from their crimes.  (Id.  
            at 118-119.) The Court made clear, however, that while the  
            state has a compelling state interest in compensating victims  
            from the fruits of the crime, it has little if any interest in  
            limiting such compensation to the proceeds of the wrongdoer's  
            speech about the crime.  Accordingly, the Court focused its  
            analysis of whether the Son of Sam law was narrowly tailored  
            to only the former objective, and held that the regulation was  
            over inclusive-in other words, and state could have achieved  
            its goal through means that are less restrictive of speech.   
            (Id. at 120-121, 123.) 

            As noted in the Background, in 2002, a California Supreme  
            Court case, Keenan v. Superior Court (2002) 27 Cal.4th 413,  
            similarly overturned California's own "Son of Sam" law insofar  
            as it seized the profits of such free speech-protected  
            activities and placed them in an involuntary trust for  
            victims.  Relying on Simon & Schuster, the court deemed the  
            law to be a content-based regulation of speech and, therefore,  
            "unconstitutional unless, at a minimum, it is narrowly  
            tailored to serve compelling state interests."  (27 Cal.4th.  
            at 429; the court later noted that to be narrowly tailored  
            does not require "that there be no conceivable alternative,  
            but only that the regulation not 'burden substantially more  
            speech than is necessary to further the government's  
            legitimate interest.'"  (Id. at 430 (citation omitted).)  

            To this end, the court first began by recognizing that though  
            there is no compelling interest in targeting a criminal's  
            storytelling proceeds in particular for the purpose of  
            compensating crime victims the state does have a compelling  
            interest in using the fruits of crime generally for that  
            purpose.  (Id. at 430 (emphasis in original), citing Simon &  
            Schuster, supra, 502 U.S. 105, at 118-121).  Next, the court  
            noted that California's law entrusted and confiscated all  
            income from a felon's proceeds from all expressive materials,  
            whatever their subject, theme, or commercial appeal, that  
            include a substantial account of such offenses, whatever their  
            nature and however long in the past they were committed.   
            Ultimately, the court held that the law was an overinclusive  
            (i.e. not narrowly tailored) infringement of protected speech  
            because it targets and confiscates all of a convicted felon's  
            proceeds from expressive materials that include any  








          AB 538 (Campos)
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            substantial account of the felony, in whatever context.  (Id.  
            at 434, 436.) 

            Like the Son of Sam laws, above, this bill does not  
            necessarily restrict speech by imposing a prior restraint that  
            would prevent the speech or form of expression from ever  
            taking place.  It would, however, burden a person or entity,  
            purchasing a story, to notify the OVS any time it enters into  
            a contract with a criminal offender for the sale of the story  
            of a crime for which the offender was convicted, as long as  
            the offender committed one of the qualifying serious felonies  
            for which a longer 10 year statute of limitations applies (15  
            years under this bill), and no exception to the longer statute  
            of limitations applies.  As such, the bill could create a  
            chilling effect on persons subject to these laws, causing them  
            to reconsider entering into these contracts out of concern as  
            to what practical and legal consequences may result from such  
            notification.  Further, because this bill targets contracts  
            involving a form of expression protected by the First  
            Amendment, based upon the specific content of that expression,  
            if challenged, this bill would arguably be subject to a strict  
            scrutiny analysis by the courts.  Ultimately, whether or not  
            this bill would be considered narrowly tailored to the bill's  
            stated compelling interest is arguably a question for the  
            courts. 

              c.   Opposition arguments that this bill violates the First  
               Amendment  

            In opposition, the Media Coalition (whose members represent  
            publishers, librarians, and producers and retailers of  
            records, films, home videos, and video games) writes that  
            while it understands the "desire to provide restitution for  
            victims of crimes" it believes that "the bill's narrow focus  
            on contracts for the story of the crime will have a chilling  
            effect on First Amendment rights of the producers of  
            constitutionally protected speech." 

            Also in opposition, the Association of American Publishers  
            (AAP) writes in agreement that the effect of AB 538's  
            requirement for any person, organization, or company that  
            enters into a contract with a 'criminal offender' to report to  
            the OVS any sale of the story of a crime for which the  
            offender was convicted, "would be to discourage any contracts,  








          AB 538 (Campos)
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            thereby chilling speech that is fully protected by the First  
            Amendment." AAP explains: 

               The bill as drafted is unconstitutional because it  
               explicitly burdens speech by a particular category of  
               speaker on a particular subject.  In the case of a book,  
               the burden would be two-fold: a burden on the publisher to  
               report the contract, which in itself could discourage the  
               publisher from pursuing sensitive publishing projects; and  
               a burden on the convicted individual, whose payments in  
               connection with expressive activity are singled out from  
               all other sources of income as the target for potential  
               damages action.  Burdening protected expression in this  
               manner violates the First Amendment under rulings of the  
               U.S. Supreme Court and the Supreme Court of California.  

            AAP acknowledges that this bill, unlike the New York Son of  
            Sam law at issue in Simon & Schuster "would not require  
            deposit of payments made under the contract into an escrow  
            fund," but argues that "the burdens on speech that [AB] 538  
            would impose raise the same First Amendment concerns the  
            Supreme Court identified in Simon & Schuster . . . [where] the  
            Supreme Court found [the law to be] content based because it  
            'single(d) out income derived from expressive activity for a  
            burden the state place(d) on no other income' and was  
            'directed only at works with a specified content.' 502 U.S. at  
            116."  AB 538, similar to the Son of Sam law, AAP argues,  
            would "apply to books and other expressive works that are  
            based only 'in part' on the author's criminal actions,  
            regardless of how those actions were addressed or how  
            significantly they figure in the work.  Accordingly, like  
            [California's invalidated Son of Sam law], AB 538 is not  
            narrowly tailored."  Lastly, AAP also, relying on the Keenan  
            decision, notes that this bill fails to recognize that "[o]ne  
            might mention past felonies as relevant in personal  
            redemption; warn from experience of the consequences of crime;  
            critically evaluate one's encounter with the criminal justice  
            system; document scandal and corruption in government and  
            business; describe the conditions of prison life; or provide  
            an inside look at the criminal underworld."  (Keenan, 27  
            Cal.4th at 433.)  

            The Motion Picture Association of America, Inc. (MPAA) writes  
            a memorandum in opposition, stating that while it strongly  








          AB 538 (Campos)
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            believes in the goal of ensuring that victims of crime are  
            compensated for their losses, it believes that California law  
            already accomplishes that goal by requiring anyone who is  
            convicted of a crime who is obligated to pay restitution to  
            disclose his or her sources of income. (See Pen. Code Sec.  
            1202.4.)  "Such disclosure" MPAA writes, "would include all  
            income, including contracts for the rights to his or her  
            story, anything relating to the crime that could be used in an  
            entertainment product or consulting fees for the production of  
            an entertainment product."  MPAA, similar to AAP, argues that  
            this bill would be found unconstitutional in accordance with  
            Supreme Court Simon & Schuster decision, as well as the  
            California Supreme Court Keenan case.  MPAA argues that the  
            Keenan court held that a law aimed at "income from the  
            criminal's speech or expression on any theme or subject"  
            [which includes the story of the felony] was unconstitutional.  
             "Contracts which encompass a 'story' will be subject to  
            disclosure to the state's [OVS].  This clearly and  
            unambiguously singles out protected speech and violates the  
            First Amendment."  

            MPAA further asserts that, as a result of this bill, "[a]  
            person, organization or company that seeks to enter into a  
            contract with a convicted person may decline to pursue the  
            story because of the disclosure required by this bill. [ . . .  
            ] The U.S. Supreme Court has ruled many times that laws that  
            promote self-censorship because of the fear of legal  
            consequences violate the First Amendment as much as laws that  
            directly ban certain speech. See Smith v. California, 361 U.S.  
            147, 154 (1959)."  Furthermore, MPAA raises issue with the  
            practicality of administering this bill, writing that:

               An agreement may not specify an amount of compensation for  
               a convicted person's story and may provide contingent  
               compensation. This could create an ongoing disclosure  
               requirement by the person or entity obligated to report to  
               the [OVS]. And, we also respectfully submit that AB 538  
               could interfere with the routine business contracting  
               process between writers, producers, directors and  
               individuals who happen to be criminal defendants for their  
               knowledge to tell a story involving a criminal case. Such  
               information often provides critical background material  
               and/or the basis for the development of a motion picture or  
               television program.








          AB 538 (Campos)
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            Lastly, the California Broadcasters Association (CBA)  
            similarly contends that the bill would chill speech through  
            self-censorship and likely not survive strict scrutiny, and  
            asserts the following practical issues with the bill:  

               While merely reporting a contract to a government agency  
               seems like a small request, it is actually a substantial  
               demand.  Book and movie deals are not the only possible  
               contracts targeted by this bill.  AB 538 imposes a duty on  
               news operations and story development that does not  
               currently exist in any form for protected speech.  [ . . .  
               ]

               That novelty is dangerous since our members look at news as  
               news-protected speech.  We are concerned about the small  
               stations paying for interviews, story information or news  
               background.  This bill imposes a potentially stiff penalty  
               for failure to report an event that occurs infrequently and  
               requires an administrative expense.  [ . . . ]
































          AB 538 (Campos)
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            In response to the above arguments raised by the opposition,  
            the author responds that: 

               AB 538's victim notification provisions ensure that the  
               state's interest in supporting and protecting victim's  
               rights as provided for under Proposition 9, Marsy's Law,  
               are upheld.  Proposition 9 provided constitutional  
               protections and support for victims of crime, ensuring that  
               the state would seek to make sure victims of crime are made  
               whole and restitution is obtained.  AB 538 is carefully and  
               narrowly crafted to ensure intermediate scrutiny is  
               addressed, requiring that a law be substantially related  
               to, or necessary to achieve, an important or substantial  
               governmental interest - in this case, Proposition 9.  

               Unlike the original Son of Sam Law passed in 1986, AB 538  
               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 a  
               contract for a convicted criminal's story to inform the  
               [OVS] of the contract.  This is important in that the bill  
               first and foremost provides notice to the victim or  
               victim's immediate family so they may prepare themselves  
               for the possibility of seeing their victimization portrayed  
               in the media in some form or fashion.  It does not  
               guarantee or require a victim to do anything more.  That  
               said, the Civil Code of Procedure (CCP) process is an  
               option available to victims of crime to pursue damages.  It  
               is a separate process whereby the victim must prove his or  
               her claim - compensation is not guaranteed.  However, how  
               would a victim know to pursue the CCP process if they are  
               not aware proceeds exist?

               To be clear, the law defined by this bill does not regulate  
               or prohibit speech or expressive conduct.  The bill ensures  
               a victim can prepare themselves emotionally and then,  
               should a victim choose to do so, 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.  It in no way gives the victim the  
               ability or option to deny the contract from being entered  








          AB 538 (Campos)
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               in to or the story from being told.  [ . . . ]

            The sponsor, Crime Victims United of California, further  
            contends that "AB 538's victim notification provisions in no  
            way hinder free speech.  The provisions merely provide for  
            notification to be provided to the victim that his/her  
            offender has entered in a financial contract for the sale of  
            his/her story, should a victim request notification regarding  
            the offender.  This provides an opportunity for a victim and  
            victim's next of kin to prepare themselves for the potential  
                                         of seeing their victimization portrayed in the media and  
            allows them to make a decision whether to pursue civil damages  
            under the Civil Code of Procedure process.  It in no way gives  
            the victim the ability or option to deny the contract form  
            being entered [into] or the story from being told." 

          4.    Other opposition arguments  

          In opposition to the bill, Legal Services for Prisoners with  
          Children writes: 

            Currently, the statutes of limitations for most civil torts  
            range between six months and three years from the injury.   
            [However, under existing law] a person has up to ten years  
            after the [defendant's] completion of parole to bring a civil  
            suit [arising out of] certain felonies.  This means that a  
            plaintiff has the entire time of trial, incarceration, and  
            parole before the statute of limitations' clock starts  
            running; and then they have a full decade to bring a claim.   
            This would increase that decade to [15 years].  

            When a person has been off of parole for [nearly] two decades  
            and is trying to move forward with her life, she should be  
            free from the threat of civil litigation for something that  
            happened so long ago, especially after she has paid her debt  
            to society.  This bill would be another way of extending civil  
            penalties on formerly incarcerated people and keeping them  
            from living full and productive lives.  After that length of  
            time, a civil suit will not increase justice or make the  
            plaintiff whole, instead it will only act as another  
            punishment on the defendant.

          5.   Technical and clarifying amendments  









          AB 538 (Campos)
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          Staff notes that this bill would include a definition for  
          "immediate family member," but only utilizes the term "member of  
          the victim's immediate family."  Additionally, as currently  
          drafted, it is unclear whether the OVS' duty to notify the  
          victim or any member of the victim's immediate family would be  
          met by notifying just the victim, or just one (as opposed to  
          all) members of the victim's immediate family, or if the bill  
          would require that both the victim and (one, or all) immediate  
          family members are notified.  

          The following amendments would correct drafting errors and  
          clarify that the duty is discharged by notifying the victim, and  
          if the victim cannot be notified, a family member of the victim.  
          These amendments would also clarify that OVS need only divulge  
          the existence of a contract, and no other details. 

             Suggested amendments

             On page 4, lines 4-5, strike "immediate family member" and  
            insert "member of the victim's immediate family"
             
             On page 4, line 13, strike "The conviction" and insert "The  
            offender's conviction"

            On page 4, line 21, strike "any victim or member" and insert  
            "the victim, or if the victim cannot be reasonably notified, a  
            family member of the victim" 

























          AB 538 (Campos)
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          Staff additionally notes that while the bill would require that  
          the OVS "notify any victim or member of the victim's immediate  
          family, as defined, who has requested notification of the  
          existence of a contract described by this section" the bill does  
          not expressly specify what OVS is to notify the victim or family  
          member(s) of.  Presumably, once OVS notifies any  
          registered-victim or registered-family member of the existence  
          of a contract involving the offender, the notification  
          obligation has been met and any remedies or actions that might  
          be available to the victim or family member (such as seeking to  
          recover a previously entered judgment or order of restitution  
          from the offender, or any injunctions against the offender)  
          would be based upon existing law.  The bill does not appear to  
          require that OVS divulge any further information, such as the  
          terms or parties involved with the contract.  This, in fact,  
          might help mitigate concerns that this bill will have chilling  
          effects on persons or entities that would be subject to  
          notifying OVS of the existence of these contracts, given that  
          the notification would not necessarily include the  
          identification of their name.   


           Support  :  California Police Chiefs Association; California State  
          Sheriffs' Association

           Opposition  :  Association of American Publishers; California  
          Broadcasters Association; Legal Services for Prisoners with  
          Children; Media Coalition Inc.; Motion Picture Association of  
          America; Warner Brothers Entertainment, Inc. - Vice President

                                        HISTORY
           
           Source  :  Crime Victims United of California
                                   
           Related Pending Legislation  :  None Known 

           Prior Legislation  :

          AB 878 (Chavez, 2005) would have reenacted the state's  
          invalidated Son of Sam law with some changes to attempt to  
          address the constitutional issues raised by the original law.   
          This bill died in this Committee without a hearing.  









          AB 538 (Campos)
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          SB 1887 (McPherson, Ch. 633, Stats. 2002) See Background.

           Prior Vote  :

          Senate Public Safety Committee (Ayes 5, Noes 0)
          Assembly Floor (Ayes 75, Noes 0)
          Assembly Appropriations Committee (Ayes 15, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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