BILL ANALYSIS Ó
AB 538
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CONCURRENCE IN SENATE AMENDMENTS
AB
538 (Campos)
As Amended August 20, 2015
Majority vote
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|ASSEMBLY: |75-0 |(May 28, 2015 |SENATE: |40-0 |(August 31, |
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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