BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 164        Hearing Date:    March 24, 2015    
          
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          |Author:    |Beall                                                |
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          |Version:   |February 4, 2015                                     |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|JM                                                   |
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                          Subject:  Serial Sexual Predators



          HISTORY

          Source:   California District Attorneys Association

          Prior Legislation:                                     AB 1844  
          (Fletcher) - Ch. 219, Stats 2010
                         Proposition 83, November 2006 General Election
                         SB 1128 (Alquist) - Ch. 337, Stats. 2006
                         SB 448 (Poochigian) - 2005, held in Senate  
          Appropriations
                         SB 1780 (Hollingsworth) - 2004, failed in this  
          Committee
                         SB 881 (Hollingsworth) - 2003, failed in this  
          Committee
                         SB 884 (Poochigan) - 2003, held in Senate  
          Appropriations 
                         SBx1 26 (Bergeson) - Ch. 14, Stats. 1994


          Support:  American Federation of State, County and Municipal  
                    Employees; California College and University Police  
                    Chiefs Association; California Communities United  
                    Institute; California Peace Officers Association;  
                    California Police Chiefs Association; California State  








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                    Sheriffs' Association; Crime Victims United of  
                    California; Peace Officers Research Association of  
                    California; California Protective Parents Association;  
                    Incest Survivors' Speakers Bureau 

          Opposition:California Public Defenders Association 
                
          PURPOSE

          The purpose of this bill is to provide that where a defendant  
          has been convicted of a One-Strike qualifying crime in two  
          separate cases, he or she is subject to a life term under the  
          law regardless of the order of the convictions. 

          Existing law includes the One Strike law.<1>  The One Strike  
          scheme applies to rape, oral copulation, sodomy, and sexual  
          penetration committed by force, duress or threats; lewd conduct  
          with a child under the age of 14 and continuous sexual abuse of  
          a child.  Depending on the number and kinds of aggravating  
          factors attendant to the crime, the court must impose a term of  
          15 or 25-years-to-life, or life without parole for specified  
          crimes against a minor.  (Pen. Code  667.61.)

           The factors requiring imposition of a 25-years-to-life  
            sentence where one factor is proved include the following:

             o    The crime was committed during the commission of  
               kidnapping in which the victim was exposed to an elevated  
               risk of harm;
             o    The crime was committed during the commission of a  
               residential burglary;
             o    The victim or another person was subjected to torture or  
               mayhem;
             o    The victim suffered great bodily injury;
             o    A victim under the age of 14 suffered bodily harm;
             o    The crime was committed by multiple perpetrators, one of  
               whom kidnapped the victim causing an elevated risk of harm,  
               inflicted torture or mayhem, or committed a residential  
               burglary; or, 
             o    The defendant was previously convicted of a qualifying  
               One-Strike crime.  (Pen. Code 
                667.61, subd. (d).)
          ---------------------------
          <1> The law includes numerous other special sex crime sentencing  
          schemes under which a defendant is subject to a life sentence.







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           The factors requiring a sentence of 15-years-to-life for a  
            single factor and 25-years-to-life for two or more factors are  
            the following:

             o    The crime involved a non-residential burglary;
             o    The defendant kidnapped the victim without elevated risk  
               of harm;
             o    The defendant used a firearm or weapon;
             o    The crime involved multiple victims;
             o    Infliction of a specified kinds of injury;
             o    The victim was bound or tied;
             o    The defendant administered a controlled substance to the  
               victim; or,
             o    The crime was committed by multiple perpetrators, one of  
               whom kidnapped the victim without elevated risk, committed  
               a non-residential burglary, used a weapon, bound or tied  
               the victim, inflicted great bodily harm or administered a  
               controlled substance.  (Pen. Code  667.61, subd. (e).)

          Existing law requires the following life terms under the  
          One-Strike law where the victim is a minor:

           Life without the possibility of parole for an adult  
            perpetrator, or 25-years-to-life if the perpetrator is a  
            minor, if the perpetrator is convicted of a standard One  
            Strike qualifying offense (Pen. Code  667.61, subd. (c)) if  
            the victim is under 14 years under the following  
            circumstances:

             o    One or more of the most serious aggravating factors  
               described in Penal Code Section 667.61, subdivision. (d)  
               apply; or,
             o    The defendant inflicted "bodily harm."
             o    Two or more of the aggravating factors described in  
               Penal Code Section 667.61, subdivision (e) apply). 
             o    These special penalties do not apply to a lewd conduct  
               offense not involving force or duress.  The usual  
               One-Strike penalties apply in such cases.

           25-years-to-life for any person convicted of an eligible  
            offense under one of the factors set out in Penal Code section  
            667.6, subdivision (e) against a child under 14 years of age.  
            (Pen. Code  667.61, subd. (j).)








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          Existing law requires the following life terms under the  
          One-Strike law where the victim is a minor who is at least 14  
          years old and the defendant is convicted of rape, sodomy or oral  
          copulation by force or duress, or the defendant is convicted of  
          rape, sodomy or oral copulation in concert (with multiple  
          perpetrators):

           Life without the possibility of parole for an adult  
            perpetrator, or 25-years-to-life if the perpetrator is a  
            minor, under the following circumstances:

             o    One or more of the most serious aggravating factors  
               described in Penal Code Section 667.61, subdivision. (d)  
               apply; or,
             o    Two or more of the aggravating factors described in  
               Penal Code Section 667.61, subdivision (e) apply). 

           25-years-to-life if any one of the factors set out in Penal  
            Code section 667.6, subdivision (e), apply.  (Pen. Code   
            667.61, subds. (l)-(m).)

          This bill provides that where the defendant has been convicted  
          of separate qualifying One Strike offenses, he<2> shall be  
          subject to a One Strike sentence of 25-years-to-life, regardless  
          of the order of the convictions.  

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   
          ---------------------------
          <2> The vast majority of sex offenders are men.







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                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In its most recent status report to the court (February 2015),  
          the administration reported that as "of February 11, 2015,  
          112,993 inmates were housed in the State's 34 adult  
          institutions, which
          amounts to 136.6% of design bed capacity, and 8,828 inmates were  
          housed in out-of-state
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design
          bed capacity."( Defendants' February 2015 Status Report In  
          Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC,  
          3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS








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          1. Need for This Bill

          According to the author:

               California's "One Strike Law", enacted in 1994, is  
               designed to punish serial sexual predators who commit  
               multiple offenses and target multiple victims.  The  
               Law is designed to keep the most dangerous people in  
               society behind bars and improve public safety.

               Unfortunately, the statutory language has created a  
               loophole where serial sexual predators can escape  
               punishment under the One Strike Law simply because  
               their crimes were uncovered late, such as when a child  
               molestation victim comes forward later or when DNA  
               technology solves a violent rape via a "cold hit" in  
               the DNA database.

               If such crimes were prosecuted simultaneously to  
               another qualifying sexual offense, then the One Strike  
               Law would be applicable. However, because the crimes  
               were uncovered after the prosecution for another  
               qualifying offense, the One Strike Law does not apply.  
                Neither the multiple victim nor prior conviction  
               triggering circumstances is applicable in such  
               situations.  Furthermore, the "prior conviction"  
               triggering circumstance requires the conviction of the  
               qualifying offense to occur before the commission of  
               the currently charged offense.  This loophole allows a  
               sexual predator to escape the appropriate punishment  
               under the One Strike Law based on the timing of the  
               conviction rather than the crime itself.

               SB 164 will close the loophole allowing sexual  
               predators to escape punishment under the One Strike  
               Law.  This bill simply proposes to remove the word  
               "previously" from statute and explicitly state that  
               the timing of the conviction is not a factor in  
               whether the One Strike Law applies. 

               Simply put, this bill will ensure two convictions of  
               specified violent sex crimes will result in punishment  
               under the One Strike Law.








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               SB 164 is designed to keep repeat offenders of the  
               most heinous, violent crimes off the streets.  As  
               Proposition 47 is implemented and non-violent  
               offenders are released from prison, California must  
               focus on reserving space in our corrections facilities  
               for violent criminals-especially repeat offenders.  SB  
               164 is step in this direction.
          
          2.The Decision Prompting Introduction of This Bill
          
          This bill seeks to essentially obviate or overrule the decision  
          of the court in People v. Huynh (2014) 227 Cal.App.4th 1210.<3>   
          The opinion succinctly described the issue in the case:

               The issue in this case is simply, what does  
               "previously convicted" in Penal Code section 667.61,  
               subdivision (d)(1), mean (all further statutory  
               references are to the Penal Code)?  The Orange County  
               District Attorney argues "previously convicted" means  
               a defendant was convicted of a qualifying offense but  
               it is immaterial whether the qualifying offense  
               occurred before or after the currently charged offense  
               and the trial court erred in dismissing the section  
               667.61, subdivision (d)(1), allegation.  Randy Thanh  
               Huynh responds "previously convicted" means a  
               defendant was convicted of a qualifying offense before  
               the commission of the currently charged offense and  
               the court properly dismissed the section 667.61,  
               subdivision (d)(1), allegation.  We agree with Huynh  
               and affirm the trial court's order dismissing the  
               section 667.61, subdivision (d)(1), allegation.  (Id.,  
               at p 1212.)

          This bill essentially makes the position of the Orange  
          County District Attorney the law.  That is, the bill  
          provides that a defendant is subject to a life term under  
          the One Strike law if he has been convicted of qualifying  
          crimes in separate prosecutions.   
          -------------------------
          <3> Huynh was decided by the Court of Appeal of California,  
          Fourth District, DivisionThree.  The Fourth District has three  
          Divisions.  Division One:  San Diego and Imperial Counties;  
          Division Two, Inyo, Riverside and San Bernardino Counties;  
          Division Three: Orange County.    







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          3.Policy Issue Raised by this Bill

          Proponents assert that this bill closes a "loophole" that allows  
          defendants to avoid the intended purpose of the One Strike law.   
          However, as noted by the court in Huynh, the provision amended  
          by this bill is a recidivist penalty, not a more general  
          provision concerning defendants who committed more than one  
          qualifying sex crime.  A recidivist is punished severely not  
          simply because he committed more than one offense, but because  
          he received due process in the prior offense and faced formal  
          judgment, with its attendant consequences of public rebuke and  
          punishment.  (People v. Kilborn (1996) 41 Cal.App.4th 1325,  
          1329.)

          The essence of the One Strike law is inherent in its name.  The  
          defendant sentenced under the law can be imprisoned for life for  
          one crime. The court in Huynh explained that the One Strike law,  
          with one notable exception, punishes defendants for the  
          aggravated or heinous manner in which an offense was committed.   
          (People v.Huynh, supra, 227 Cal.App.4th 1210, 1215.)  The One  
          Strike factors that show a single offense to be especially  
          heinous are numerous.  Examples include infliction of injury,  
          kidnapping and multiple victims in the current offense.  

          In contrast to One Strike, the Three Strikes law is a true  
          recidivist punishment scheme, under which defendants are subject  
          to increasingly severe punishments with each successive  
          conviction.  The One Strike law does have a single recidivism  
          provision, under which a defendant convicted in the current case  
          of a qualifying One Strike offense is subject to a life term if  
          he has a prior conviction for such an offense.  Neither the  
          prior offense nor the current offense must be shown to involve  
          aggravating factors, such as the binding of the victim,  
          kidnapping, infliction of great bodily injury and others.  

          This bill essentially provides that a defendant who has been  
          convicted of more than one qualifying crime in separate cases is  
          subject to a life term, regardless of the chronological order of  
          the convictions or crimes.  Clearly, a defendant who has been  
          convicted  of sex crimes in more than one case is more culpable  
          than a person who has been convicted of a single crime, but a  
          defendant is a recidivist only where he committed the second  
          crimes after being convicted and subjected to judgment and  








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          sentencing.  

          4.Suggested Amendment

          The purpose of this bill is to provide that a defendant who has  
          been convicted in separate cases of One Strike qualifying crimes  
          are subject to a sentence of 25-years-to-life, regardless of the  
          order of conviction.  Specifically, the bill provides hat a One  
          Strike sentence applies if the defendant has been "convicted of  
          a separate violation" of a qualifying offense.

          For the reasons set out below, the following amendment is  
          suggested to realize the stated intent of the author and the  
          sponsor, the California District Attorneys Association:

               The defendant has been convicted of more than one  
               offense listed in subdivision (c) on charges brought  
               and tried separately. 

          Without this amendment a defendant could be subject to a life  
          term because he was convicted of more than one violation - or  
          "count of conviction" - against a single victim in a single  
          case.  Many, if not most, single-victim sex crime cases involve  
          or result in a more than one count or violation.  Typically,  
          each prohibited act in a sex crime is a separate violation.  For  
          example, a rape is committed when the perpetrator penetrates the  
          victim without her consent.  Each separate penetration -  
          regardless of the time between them - is a separate rape.  
          (People v. Harrison (1989) 48 Cal.3d 321.)  Equivalent rules  
          apply to oral copulation and other offenses.  Without the  
          amendment, many, if not most, sex crimes would be subject to a  
          life sentence under this bill, eliminating distinctions between  
          particularly aggravated sex crimes and others.  


          Sex offenders who are not punished pursuant to One Strike or  
          another special sentencing scheme are still subject to greater  
          penalties under California law than other offenders.  In most  
          non-sex crimes, a defendant can only be punished a single time  
          for multiple crimes committed pursuant to a single objective.   
          (Pen. Code  654.)  However, in sex crimes, each separately  
          defined sex crime is essentially deemed to have been committed  
          pursuant to multiple objectives, and is thus separately  
          punishable.   (People v. Harrison, supra, 48 Cal.3d 321,  








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          335-337.)  In most cases that do not involve sex crimes, where  
          the defendant is convicted of multiple offenses, the court can  
          only impose a full term in one count.  The "subordinate" terms  
          for other offenses must be imposed as 1/3 the middle term.   
          (Pen. Code  1170.1.)  In sex crimes, the court has either must  
          impose, or has discretion to impose, full-term consecutive  
          sentences, depending on the facts of the case.  Specifically, if  
          the defendant had the opportunity to reflect on his actions  
          between crimes, the court must impose full-term consecutive  
          sentences.  (People v. Corona (1986) 206 Cal.App.3d 13, 17-18;  
          Pen. Code   667.6, subds. (c)-(d).) 


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