BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 538


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          538 (Campos)


          As Amended  August 20, 2015


          Majority vote


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          Original Committee Reference:  JUD.




          SUMMARY:  Allows victims of specified felonies to be notified  
          that the person who committed the felony has entered into a  
          contract for the sale of the story of the crime.  Specifically,  
          this bill:   


          1)Provides that no civil action for damages may be filed against  
            a person who was unlawfully imprisoned or restrained but has  
            been released from prison after successfully prosecuting a  
            writ of habeas corpus (i.e. falsely convicted and later  
            released.)


          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  








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            shall notify the California Department of Corrections and  
            Rehabilitation (CDCR) that the parties have entered into such  
            a contract, if the following are true:


             a)   A crime that is the basis of the story sold under the  
               contract is specified in Code of Civil Procedure (CCP)  
               Section 340.3(b) and resulted in the felony conviction of  
               the offender.


             b)   An action for damages against the offender is allowed to  
               be commenced pursuant to CCP Section 340.3(b).


          3)Requires CDCR to notify the victim, or if the victim cannot be  
            reasonably notified, a member 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 such notification has previously been requested of  
            CDCR.


          The Senate amendments: 


          1)Remove provisions that would have extended by five years (from  
            10 to 15 years) the statute of limitations for a crime victim  
            to file a civil action for damages against the person  
            convicted of a specified felony.  


          2)Clarify that under this bill, CDCR's duty is discharged by  
            notifying the victim of the existence of a contract but no  
            other details, and that if the victim cannot be notified, a  
            family member of the victim may instead be notified.


          3)Make technical changes by changing references to the Office of  
            Victim and Survivor Rights and Services (an office within  
            CDCR) to simply refer to CDCR.









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          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.


          COMMENTS:  This bill seeks modest changes to California's  
          so-called "Son of Sam" law.  First, this bill allows victims of  
          specified felonies to be notified that the person who committed  
          the felony has entered into a contract for the sale of the story  
          of the crime.  This bill also specifically prohibits any such  
          suit from being filed against a person who was falsely convicted  
          of the crime and released from prison upon being exonerated.


          This bill seeks to help victims be notified when an offender  
          signs a contract to sell the story of the crime to another  
          party.  According to proponents, existing law is insufficient in  
          providing a mechanism by which a crime victim is made aware at  
          an early stage that a book or movie may be released portraying  
          the crime in a very public way, leaving the victim or victim's  
          family to discover that fact when the book or movie is released  
          in stores or in theaters.  Proponents state that this bill is  
          intended to ensure that the victim or victim's next of kin is  
          made aware that their victimization may be replayed in a public  
          setting, so they can prepare themselves and make an informed and  
          timely decision about whether to pursue the recovery of civil  
          damages.  This bill would require CDCR to be notified when a  
          criminal offender enters into a contract with another person for  
          the sale of the story of a crime for which the offender is  
          convicted and other circumstances are satisfied.  The  
          notification requirement would apply only when the crime is one  
          of the felonies specified in CCP Section 340.3(b), and when an  
          action for damages against the offender is allowed to be  
          commenced prior to the expiration of the SOL specified under CCP  
          Section 340.3(b).


          According to the author, this bill seeks to harness the existing  
          victim notification process within CDCR to require anyone who  
          enters into a contract with a criminal offender for the sale of  
          the story about the crime to notify CDCR that the parties have  
          entered into such a contract.  This bill then requires CDCR,  








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          within 90 days of receiving such notification, to notify any  
          victim who had previously requested notification of the  
          existence of a contract, or if the victim cannot be notified, an  
          immediate family member of the victim.  Proponents assert that  
          these requirements do not restrict the ability of a person or  
          company to enter into a contract for the sale of the offender's  
          story about the crime, but merely require notification to CDCR  
          that the contract exists.


          Utilizing the existing victim notification program.  Currently,  
          crime victims, their family members, and certain witnesses in a  
          criminal matter may fill out a form (known as the "CDCR 1707  
          form") to provide their contact information to CDCR to request  
          that CDCR notify them in the case of certain future events  
          related to a particular criminal offender.  For example, the  
          current CDCR 1707 form allows a person to be notified of the  
          release, escape, or death of the offender; a criminal appeal by  
          the offender; the parole hearing date for an offender sentenced  
          to life imprisonment; and the scheduled execution of an offender  
          sentenced to death.  The form is also used to inform CDCR about  
          the existence of a restitution order, as well as any request for  
          special conditions of parole or community supervision when the  
          offender is released from incarceration.  


          According to the author, this bill would simply require CDCR to  
          modify its current victim notification process to provide  
          notification of an additional event related to the criminal  
          offender - namely, a contractual relationship with another party  
          for the sale of the story of the crime for which he or she was  
          convicted.  It is envisioned that this could be accomplished by  
          updating the CDCR 1707 form to allow victims and their immediate  
          family members to request such notification, along with the  
          other types of notifications already offered.  It should be  
          noted, however, that the current CDCR victim notification  
          program offers victims only notification of events related to an  
          offender that occur while the offender is still an inmate under  
          custody or supervision of CDCR.  Under this bill, CDCR would be  
          responsible for notifying those victims who request notification  
          of a contract for the sale of the perpetrator's story to another  
          party.  This contract can only be made after the offender is no  








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          longer an inmate, because current CDCR rules prohibit any inmate  
          from actively engaging in a business or profession.   
          Furthermore, the contract for the sale of the story could  
          potentially be made one day after the perpetrator is discharged  
          from parole, or perhaps several years after parole is  
          terminated.  There is no upper limit on the date when that event  
          could occur.  Consequently, this bill creates a new  
          responsibility for CDCR that continues past the date of date  
          when the former inmate is discharged from parole, when the  
          former inmate is no longer under CDCR supervision.  It should be  
          noted that CDCR notification would only be effective to the  
          extent that victims and their family members maintain updated  
          contact information with CDCR for a period of time that could be  
          many years after the parole of the offender.


          This bill is also opposed by the Motion Picture Association of  
          America, Inc. (MPAA), who contends that this bill singles out  
          for regulation certain speech that is protected by the First  
          Amendment, and is therefore unconstitutional in its view.  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.  
          [citation omitted.]"  Proponents counter that this bill simply  
          requires notification to CDCR when a company enters into a  
          contract with a convicted person for the sale of the story, and  
          does not impose a financial burden on the convicted person  
          because of the content of his or her speech.  


          This bill exempts wrongly convicted persons released from prison  
          from being sued for damages based on the conviction.  Existing  
          law specifically exempts from being sued for damages any  
          defendant who has been pardoned or received a certificate of  
          rehabilitation, as well as victims of domestic violence who  
          killed or attempt to kill their abusers.  This reflects the  
          Legislature's deliberate decision to exempt groups from  
          liability because of their reduced culpability or later  








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          rehabilitation.  This bill would add an additional category of  
          persons who would be exempted from suit - namely, wrongly  
          convicted persons who have been released from prison for crimes  
          they did not commit.  Improvements in DNA technology coupled  
          with increased attention by advocates seeking to identify  
          prisoners with claims of factual innocence have resulted in a  
          number of recent cases of persons being freed from prison for  
          crimes they were shown not to have committed.  Because a person  
          who is wrongly convicted of a crime has even less culpability  
          than certain categories of convicted persons who are already  
          exempt from being sued under the current law, it makes sense to  
          also exempt persons who are wrongly convicted from being sued  
          for damages.  


          Analysis Prepared by:                                             
          Anthony Lew / JUD. / (916) 319-2334FN: 0001570