BILL ANALYSIS Ó
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).)
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<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:
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<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.
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<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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