BILL ANALYSIS                                                                                                                                                                                                    Ó






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        AB 538|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   THIRD READING 


          Bill No:  AB 538
          Author:   Campos (D)
          Amended:  8/20/15 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 Department of Corrections  
          and Rehabilitation (CDCR).












                                                                     AB 538  
                                                                    Page  2


          Senate Floor Amendments of 8/20/15 grant discretion to the CDCR  
          to determine how notification shall be provided to a crime  
          victim or victim's family member that the perpetrator of the  
          crime has sold his or her story of the crime.  The amendments  
          also limit the number of notifications CDCR must make.


          ANALYSIS: 


          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  







                                                                     AB 538  
                                                                    Page  3


             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  
                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).)








                                                                     AB 538  
                                                                    Page  4






           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 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).)





           7) 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.)





           8) 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.   







                                                                     AB 538  
                                                                    Page  5


             (Pen. Code § 3058.8(a).)





           9) 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).) 





           10)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 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  







                                                                     AB 538 
                                                                    Page  6


               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).)

          3)Requires the CDCRto 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  







                                                                     AB 538  
                                                                    Page  7


          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  
          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  







                                                                     AB 538  
                                                                    Page  8


          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  
          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 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  







                                                                     AB 538  
                                                                    Page  9


          "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  
          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:   (Verified8/24/15)




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


          OPPOSITION:   (Verified8/24/15)







                                                                     AB 538  
                                                                    Page  10




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

          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. / 
          8/26/15 10:49:22


                                   ****  END  ****