BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   THIRD READING 


          Bill No:  AB 538
          Author:   Campos (D)
          Amended:  7/16/15 in Senate
          Vote:     21  

           SENATE PUBLIC SAFETY COMMITTEE:  5-0, 6/30/15
           AYES:  Hancock, Anderson, Leno, Monning, Stone
           NO VOTE RECORDED:  Glazer, Liu

           SENATE JUDICIARY COMMITTEE:  7-0, 7/14/15
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

           SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           ASSEMBLY FLOOR:  75-0, 5/28/15 - See last page for vote

           SUBJECT:   Actions for damages: felony offenses: victim  
                     notification


          SOURCE:    Crime Victims of California


          DIGEST:  This bill requires 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.


          ANALYSIS:   









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          Existing law:   


          1) Provides that 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.  (Cal. Const. Art. 1  
             § 28, subd. (b)(13)(A)-(C).)

          2) 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).)

          3) 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).)

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

             a)    The defendant has received a certificate of  
                rehabilitation or

                   pardon;

             b)    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  







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                committed the crime because he or she was the victim of  
                intimate partner battering; or

             c)    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).)

          5) 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).)

          6) 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).)

          10)          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.)

          11)          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.  (Pen. Code § 3058.8(a).)

          12)          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  







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             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).) 

          13)          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:   


          1) Provides that no civil action for damages may be filed  
             against a person who was previously convicted of a specified  
             violent crime 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.)


          2) 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 CDCR that the parties have entered  
             into such a contract, if the following are true:


             a)    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.

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








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          3) 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.

          
          Background

          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.   
          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.  (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.)  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."   
          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 treatment of livestock, or activities legal in  
          some jurisdictions but not others, such as cockfighting.  (Id.,  
          at pp. 1588-1592.)  

          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  







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          punish false or misleading speech.  (Va. Pharmacy Bd. v. Va.  
          Consumer Council (1976) 425 U.S. 748, 762, 770-773.)   
          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.)  

          Criminals who commit bizarre or horrific crimes have long been  
          the subject of public fascination through popular culture.   
          Victims and their family members are confronted with such  
          material for their rest of their lives.  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.  The crimes of Charles  
          Manson and his so-called family have created a virtual sub-genre  
          of crime media.  


          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 which 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 to be placed in an involuntary trust for the  
          benefit of the criminal's victims.  


          The New York law was overturned in Simon & Schuster v. New York  
          Crime Victims Board (1991) 502 U.S. 105.  The case concerned  
          Henry Hill, a former mafia member who signed a contract with  
          Simon & Schuster to publish a book recounting his life.  The  
          book, Wiseguy, was later made into the movie Goodfellas.  The  
          State of New York moved to place an involuntary trust on Hill's  
          income.  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.)


          California passed its own "Son of Sam" law in 1983.  The law was  
          amended a number of times.  The statute imposed an involuntary  
          trust on the proceeds a felon receives from the sale of the  







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          story of his or her crime.  However, the California Supreme  
          Court, following the U.S. Supreme decision in Simon & Schuster,  
          struck down the California law.  (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.)


          This bill does not 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 in the CDCR 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.  This 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 this bill does target the  
          content of speech. That is, this bill targets a contract about a  
          certain kind of speech.  If this bill is found to regulate or  
          limit the content of speech, the bill would be subject to strict  
          scrutiny.  This 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.)  


          The Motion Picture Association of America, Association of  
          American Publishers and California Broadcasters Association have  
          argued that this bill will have a chilling effect on protected  
          speech.  Arguably, publications and other forms of media could  







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          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.  This 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. 


          This bill could also be found to be content-neutral on its face,  
          but nevertheless impose a burden on speech.  This bill enters  
          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.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          SUPPORT:   (Verified 8/18/15)




          Crime Victims of California (source)
          California Police Chiefs Association
          California State Sheriffs' Association


          OPPOSITION:   (Verified 8/18/15)


          Association of American Publishers
          California Broadcasters Association
          Media Coalition, Inc.
          Motion Picture Association of America
          Warner Brothers








                                                                     AB 538  
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          ASSEMBLY FLOOR:  75-0, 5/28/15
          AYES:  Alejo, Travis Allen, Baker, Bigelow, Bonilla, Bonta,  
            Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez,  
            Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,  
            Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Hadley,  
            Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer,  
            Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,  
            Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, O'Donnell,  
            Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas,  
            Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,  
            Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Achadjian, Bloom, Gomez, Grove, Obernolte

          Prepared by:Jerome McGuire / PUB. S. / 
          8/19/15 21:10:30


                                   ****  END  ****