BILL NUMBER: SB 1393 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Florez
FEBRUARY 22, 2006
An act to amend Section 68152 of the Government Code, and to amend
Section 1192.7 of, and to add Section 13105 to, the Penal Code,
relating to sex offenders.
LEGISLATIVE COUNSEL'S DIGEST
SB 1393, as introduced, Florez Sex offenders: prosecution.
Existing law sets forth timelines for the retention of court
records, depending upon the subject matter or criminal offense.
This bill would require courts to keep all records relating to
persons required to register as sex offenders for the life of the
offender. The bill also would prohibit a state or local law
enforcement agency from destroying any records relating to a
registered sex offender for the life of the offender. Because the
bill would impose new responsibilities on local agencies, the bill
would impose a state-mandated local program.
Existing law, added by an initiative statute that provides for
amendment of its provision by 2/3 vote of the Legislature, prohibits
plea bargaining in certain felony cases, except as specified.
This bill would state the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under "one strike," "3 strikes" or habitual sexual
offender laws instead of engaging in plea bargaining, and would
require a district attorney to state on the record why a sentence
should not be prosecuted under those provisions, if he or she engages
in plea bargaining despite the stated intent.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 68152 of the Government Code is amended to
read:
68152. The trial court clerk may destroy court records under
Section 68153 after notice of destruction and if there is no request
and order for transfer of the records, except the comprehensive
historical and sample superior court records preserved for research
under the California Rules of Court, when the following times have
expired after final disposition of the case in the categories listed:
(a) Adoption: retain permanently.
(b) Change of name: retain permanently.
(c) Other civil actions and proceedings, as follows:
(1) Except as otherwise specified: 10 years.
(2) Where a party appears by a guardian ad litem: 10 years after
termination of the court's jurisdiction.
(3) Domestic violence: same period as duration of the restraining
or other orders and any renewals, then retain the restraining or
other orders as a judgment; 60 days after expiration of the temporary
protective or temporary restraining order.
(4) Eminent domain: retain permanently.
(5) Family law, except as otherwise specified: 30 years.
(6) Harassment: same period as duration of the injunction and any
renewals, then retain the injunction as a judgment; 60 days after
expiration of the temporary restraining order.
(7) Mental health (Lanterman Developmental Disabilities Services
Act and Lanterman-Petris-Short Act): 30 years.
(8) Paternity: retain permanently.
(9) Petition, except as otherwise specified: 10 years.
(10) Real property other than unlawful detainer: retain
permanently if the action affects title or an interest in real
property.
(11) Small claims: 10 years.
(12) Unlawful detainer: one year if judgment is for possession of
the premises; 10 years if judgment is for money.
(d) Notwithstanding subdivision (c), any civil or small claims
case in the trial court:
(1) Involuntarily dismissed by the court for delay in prosecution
or failure to comply with state or local rules: one year.
(2) Voluntarily dismissed by a party without entry of judgment:
one year.
Notation of the dismissal shall be made on the civil index of
cases or on a separate dismissal index.
(e) Criminal.
(1) Capital felony (murder with special circumstances where the
prosecution seeks the death penalty): retain permanently. If the
charge is disposed of by acquittal or a sentence less than death, the
case shall be reclassified.
(2) Felony, except as otherwise specified: 75 years.
(3) Felony, except capital felony, with court records from the
initial complaint through the preliminary hearing or plea and for
which the case file does not include final sentencing or other final
disposition of the case because the case was bound over to the
superior court: five years.
(4) Misdemeanor, except as otherwise specified: five years.
(5) Misdemeanor alleging a violation of the Vehicle Code, except
as otherwise specified: three years.
(6) Misdemeanor alleging a violation of Section 23103, 23152, or
23153 of the Vehicle Code: 10 years.
(7) Misdemeanor alleging a violation of Section 14601, 14601.1,
20002, 23104, or 23109 of the Vehicle Code: five years.
(8) Misdemeanor alleging a marijuana violation under subdivision
(b), (c), (d), or (e) of Section 11357 of the Health and Safety Code,
or subdivision (b) of Section 11360 of the Health and Safety Code in
accordance with the procedure set forth in Section 11361.5 of the
Health and Safety Code: records shall be destroyed two years from the
date of conviction or from the date of arrest if no conviction.
(9) Misdemeanor, infraction, or civil action alleging a violation
of the regulation and licensing of dogs under Sections 30951 to
30956, inclusive, of the Food and Agricultural Code or violation of
any other local ordinance: three years.
(10) Infraction, except as otherwise specified: three years.
(11) Parking infractions, including alleged violations under the
stopping, standing, and parking provisions set forth in Chapter 9
(commencing with Section 22500) of Division 11 of the Vehicle Code:
two years.
(12) Records relating to a person required to register as a sex
offender pursuant to Section 290 of the Penal Code: retain for the
life of the offender.
(f) Habeas corpus: same period as period for retention of the
records in the underlying case category.
(g) Juvenile.
(1) Dependent (Section 300 of the Welfare and Institutions Code):
upon reaching age 28 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed pursuant to subdivision (c) of
Section 389 of the Welfare and Institutions Code.
(2) Ward (Section 601 of the Welfare and Institutions Code): upon
reaching age 21 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed under subdivision (d) of Section
781 of the Welfare and Institutions Code.
(3) Ward (Section 602 of the Welfare and Institutions Code): upon
reaching age 38 under subdivision (a) of Section 826 of the Welfare
and Institutions Code. Sealed records shall be destroyed upon court
order when the subject of the record reaches the age of 38 under
subdivision (d) of Section 781 of the Welfare and Institutions Code.
(4) Traffic and some nontraffic misdemeanors and infractions
(Section 601 of the Welfare and Institutions Code): upon reaching
age 21 or five years after jurisdiction over the person has
terminated under subdivision (c) of Section 826 of the Welfare and
Institutions Code. May be microfilmed or photocopied.
(5) Marijuana misdemeanor under subdivision (e) of Section 11357
of the Health and Safety Code in accordance with procedures specified
in subdivision (a) of Section 11361.5 of the Health and Safety Code:
upon reaching age 18 the records shall be destroyed.
(h) Probate.
(1) Conservatorship: 10 years after decree of termination.
(2) Guardianship: 10 years after the age of 18.
(3) Probate, including probated wills, except as otherwise
specified: retain permanently.
(i) Court records of the appellate division of the superior court:
five years.
(j) Other records.
(1) Applications in forma pauperis: any time after the disposition
of the underlying case.
(2) Arrest warrant: same period as period for retention of the
records in the underlying case category.
(3) Bench warrant: same period as period for retention of the
records in the underlying case category.
(4) Bond: three years after exoneration and release.
(5) Coroner's inquest report: same period as period for retention
of the records in the underlying case category; if no case, then
permanent.
(6) Court orders not associated with an underlying case, such as
orders for destruction of court records for telephone taps, or to
destroy drugs, and other miscellaneous court orders: three years.
(7) Court reporter notes: 10 years after the notes have been taken
in criminal and juvenile proceedings and five years after the notes
have been taken in all other proceedings, except notes reporting
proceedings in capital felony cases (murder with special
circumstances where the prosecution seeks the death penalty and the
sentence is death), including notes reporting the preliminary
hearing, which shall be retained permanently, unless the Supreme
Court on request of the court clerk authorizes the destruction.
(8) Electronic recordings made as the official record of the oral
proceedings under the California Rules of Court: any time after final
disposition of the case in infraction and misdemeanor proceedings,
10 years in all other criminal proceedings, and five years in all
other proceedings.
(9) Electronic recordings not made as the official record of the
oral proceedings under the California Rules of Court: any time either
before or after final disposition of the case.
(10) Index, except as otherwise specified: retain permanently.
(11) Index for cases alleging traffic violations: same period as
period for retention of the records in the underlying case category.
(12) Judgments within the jurisdiction of the superior court other
than in a limited civil case, misdemeanor case, or infraction case:
retain permanently.
(13) Judgments in misdemeanor cases, infraction cases, and limited
civil cases: same period as period for retention of the records in
the underlying case category.
(14) Minutes: same period as period for retention of the records
in the underlying case category.
(15) Naturalization index: retain permanently.
(16) Ninety-day evaluation (under Section 1203.03 of the Penal
Code): same period as period for retention of the records in the
underlying case category, or period for completion or termination of
probation, whichever is longer.
(17) Register of actions or docket: same period as period for
retention of the records in the underlying case category, but in no
event less than 10 years for civil and small claims cases.
(18) Search warrant: 10 years, except search warrants issued in
connection with a capital felony case defined in paragraph (7), which
shall be retained permanently.
(k) Retention of any of the court records under this section shall
be extended as follows:
(1) By order of the court on its own motion, or on application of
a party or any interested member of the public for good cause shown
and on those terms as are just. A fee shall not be charged for making
the application.
(2) Upon application and order for renewal of the judgment to the
extended time for enforcing the judgment.
SEC. 2. Section 1192.7 of the Penal Code is amended to read:
1192.7. (a) Plea (1)
It is the intent of the Legislature that district attorne
ys prosecute violent sex crimes under the statutes that provide
sentencing under a "one strike," "three strikes," or habitual sex
offender provisions instead of engaging in plea bargaining over those
offenses.
(2) Plea bargaining in any case
in which the indictment or information charges any serious felony,
any felony in which it is alleged that a firearm was personally used
by the defendant, or any offense of driving while under the influence
of alcohol, drugs, narcotics, or any other intoxicating substance,
or any combination thereof, is prohibited, unless there is
insufficient evidence to prove the people's case, or testimony of a
material witness cannot be obtained, or a reduction or dismissal
would not result in a substantial change in sentence.
(3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Section 269, subdivisions (b) through
(i) of Section 667, or Sections 667.61 or 667.71, and the district
attorney engages in a plea bargain, he or she shall state on the
record, at the time of presenting the plea agreement to the court,
why a sentence under one of those sections was not sought.
(b) As used in this section "plea bargaining" means any
bargaining, negotiation, or discussion between a criminal defendant,
or his or her counsel, and a prosecuting attorney or judge, whereby
the defendant agrees to plead guilty or nolo contendere, in exchange
for any promises, commitments, concessions, assurances, or
consideration by the prosecuting attorney or judge relating to any
charge against the defendant or to the sentencing of the defendant.
(c) As used in this section, "serious felony" means any of the
following:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
sodomy by force, violence, duress, menace, threat of great bodily
injury, or fear of immediate and unlawful bodily injury on the victim
or another person; (5) oral copulation by force, violence, duress,
menace, threat of great bodily injury, or fear of immediate and
unlawful bodily injury on the victim or another person; (6) lewd or
lascivious act on a child under the age of 14
years of age ; (7) any felony punishable by death or
imprisonment in the state prison for life; (8) any felony in which
the defendant personally inflicts great bodily injury on any person,
other than an accomplice, or any felony in which the defendant
personally uses a firearm; (9) attempted murder; (10) assault with
intent to commit rape or robbery; (11) assault with a deadly weapon
or instrument on a peace officer; (12) assault by a life prisoner on
a noninmate; (13) assault with a deadly weapon by an inmate; (14)
arson; (15) exploding a destructive device or any explosive with
intent to injure; (16) exploding a destructive device or any
explosive causing bodily injury, great bodily injury, or mayhem; (17)
exploding a destructive device or any explosive with intent to
murder; (18) any burglary of the first degree; (19) robbery or bank
robbery; (20) kidnapping; (21) holding of a hostage by a person
confined in a state prison; (22) attempt to commit a felony
punishable by death or imprisonment in the state prison for life;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) selling, furnishing, administering, giving, or
offering to sell, furnish, administer, or give to a minor any heroin,
cocaine, phencyclidine (PCP), or any methamphetamine-related drug,
as described in paragraph (2) of subdivision (d) of Section 11055 of
the Health and Safety Code, or any of the precursors of
methamphetamines, as described in subparagraph (A) of paragraph (1)
of subdivision (f) of Section 11055 or subdivision (a) of Section
11100 of the Health and Safety Code; (25) any violation of
subdivision (a) of Section 289 where the act is accomplished against
the victim's will by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) assault with a deadly weapon, firearm, machinegun, assault
weapon, or semiautomatic firearm or assault on a peace officer or
firefighter, in violation of Section 245; (32) assault with a deadly
weapon against a public transit employee, custodial officer, or
school employee, in violation of Sections 245.2, 245.3, or 245.5;
(33) discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 12034; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(d) As used in this section, "bank robbery" means to take or
attempt to take, by force or violence, or by intimidation from the
person or presence of another any property or money or any other
thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings
and loan association.
As used in this subdivision, the following terms have the
following meanings:
(1) "Bank" means any member of the Federal Reserve System, and any
bank, banking association, trust company, savings bank, or other
banking institution organized or operating under the laws of the
United States, and any bank the deposits of which are insured by the
Federal Deposit Insurance Corporation.
(2) "Savings and loan association" means any federal savings and
loan association and any "insured institution" as defined in Section
401 of the National Housing Act, as amended, and any federal credit
union as defined in Section 2 of the Federal Credit Union Act.
(3) "Credit union" means any federal credit union and any
state-chartered credit union the accounts of which are insured by the
Administrator of the National Credit Union administration.
(e) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
SEC. 3. Section 13105 is added to the Penal Code, to read:
13105. A state or local law enforcement agency shall not destroy
any records relating to a person who is required to register as a sex
offender pursuant to Section 290, for as long as the person is
living.
SEC. 4. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.