BILL ANALYSIS
AB 61
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Date of Hearing: March 31, 2009
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 61 (Nava) - As Amended: March 16, 2009
SUMMARY : Adds specified sex offenses to the list of crimes for
which a minor charged with the commission thereof would become
ineligible for a deferred entry of judgment. Specifically, this
bill excludes the following crimes from eligibility for deferred
entry of judgment:
1)Rape where a person is incapable, because of a mental disorder
or physical disability, of giving consent; rape where a person
is prevented from resisting by the administration of an
intoxicating substance; rape where a person is unconscious of
the nature of the act; rape where a person submits under the
belief that the person committing the act is the person's
spouse; rape where the act is accomplished against the victims
will by threats of retaliation in the future.
2)Rape in concert and incest.
3)Sodomy with a person under 14 years of age and more than 10
years younger than the perpetrator; sodomy where a person is
incapable, because of a mental disorder or physical
disability, of giving consent; rape where a person is
prevented from resisting by the administration of an
intoxicating substance; sodomy where a person is unconscious
of the nature of the act; sodomy where a person submits under
the belief that the person committing the act is the person's
spouse; sodomy where the act is accomplished against the
victims will by threats of retaliation in the future.
4)Lewd or lascivious acts upon a child under the age of 14.
5)Oral copulation with a person under 14 years of age and more
than 10 years younger than the perpetrator; oral copulation
where the act is accomplished against the victims will by
threats of retaliation in the future; oral copulation where a
person is incapable, because of a mental disorder or physical
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disability, of giving consent; oral copulation where a person
is prevented from resisting by the administration of an
intoxicating substance; oral copulation where a person is
unconscious of the nature of the act; oral copulation where a
person submits under the belief that the person committing the
act is the person's spouse.
6)Sexual penetration where the act is accomplished against the
victim's will by threats of retaliation in the future sexual
penetration where a person is incapable, because of a mental
disorder or physical disability, of giving consent; sexual
penetration where a person is prevented from resisting by the
administration of an intoxicating substance; sexual
penetration where a person is unconscious of the nature of the
act; sexual penetration where a person submits under the
belief that the person committing the act is the person's
spouse.
EXISTING LAW :
1)Creates a system for deferred entry of judgment in juvenile
court cases, as specified, which requires the minor to admit
each allegation contained in a petition with the understanding
that, "upon the successful completion of the terms of
probation, as defined in WIC Section 794, the positive
recommendation of the probation department, and the motion of
the prosecuting attorney, but no sooner that 12 months and no
later than 36 months from the date of the minor's referral to
the program, the court shall dismiss the charge or charges
against the minor." [Welfare and Institutions Code (WIC)
Section 790 et seq.]
2)Provides, with respect to minors who have received deferred
entry of judgment, that if "it appears to the prosecuting
attorney, the court, or the probation department that the
minor is not performing satisfactorily in the assigned program
or is not complying with the terms of the minor's probation,
or that the minor is not benefiting from education, treatment,
or rehabilitation, the court shall lift the deferred entry of
judgment and schedule a dispositional hearing. If after
accepting deferred entry of judgment and during the period in
which deferred entry of judgment was granted, the minor is
convicted of, or declared to be a person described in Section
602 for the commission of, any felony offense or of any two
misdemeanor offenses committed on separate occasions, the
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judge shall enter judgment and schedule a dispositional
hearing." [WIC Section 793(a).]
3)Provides that deferred entry of judgment provisions apply only
if a minor is before the court because of the commission of a
felony offense and all of the following circumstances apply:
a) The minor has not previously been declared to be a ward
of the court for the commission of a felony offense.
b) The offense charged is not one of the offenses
enumerated in WIC Section 707(b).
c) The minor has not previously been committed to the
custody of the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities (DJF).
d) The minor's record does not indicate that probation has
ever been revoked without being completed.
e) The minor is at least 14 years of age at the time of the
hearing.
f) The minor is eligible for probation pursuant to pursuant
to provisions of law that prohibit the granting of
probation to any person personally uses a firearm in the
commission of specified violent felonies. (WIC Section
790.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 61 will
prohibit authorities from granting 'deferred entry of
judgment' to juveniles who have committed any sex offenses.
Deferred judgment can be used to 'launder' egregious sex
crimes from a juvenile's record. This measure will stop the
practice of sending juveniles straight to a parole officer if
they have committed these heinous acts. It is inexcusable for
any sex crimes to be 'swept under the rug' without
repercussions."
2)Argument in Support : According to the Peace Officer Research
Association of California , "This bill would add additional
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crimes for which a juvenile would not be eligible for deferred
entry of judgment. Deferred entry of judgment sends the
offender straight to a parole officer and seals their record
from future access. There are many sexually violent offenses
where the privilege of deferred entry of judgment is simply
not appropriate. This bill aims to close those loopholes and
ensure that these dangerous juveniles are properly
rehabilitated."
3)Argument in Opposition : According to the Youth Law Center ,
"This bill represents a fourth attempt at this ill-conceived
policy change. We were present during some of the legislative
committee discussions of SB 520 and SB 1626, the antecedents
to this bill. As with those bills, it is important to correct
common misconceptions about Deferred Entry of Judgment (DEJ).
There is a belief by some that a young person who receives DIJ
is 'getting off'. Nothing could be further from the truth.
The DEJ law was written by prosecutors, and enacted as part of
Proposition 21 (The Gang Violence and Juvenile Crime
Prevention Act) in 2000. That initiative gave California some
of the toughest juvenile laws in the nation.
"In order to qualify for the program, the young person must
admit to a felony. This makes DEJ extremely onerous right
off, because it is predicated on charging decisions made just
after the arrest, when the prosecutor does not have the
benefit of all the information that would later be available.
In a huge proportion of the cases, the facts are later
discovered to justify less serious charges. Thus, in non-DEJ
cases, minors have the ability to produce mitigating evidence
or engage in negotiation that might result in an admission or
a finding that they committed some lesser or different
offenses. In other situations, minors have the right to have
the evidence against them presented in a trial. Admitting a
felony may have serious future consequences for sentence
enhancements, registration requirements, eligibility for
transfer to adult court, or inclusion in criminal databases.
"Moreover, those youth who undergo DEJ may be under court
jurisdiction for up to three years (Welfare and Institutions
Code section 791), subject to whatever requirements the court,
prosecutor and probation officer impose. There are absolutely
no guidelines in the law to determine what constitutes 'not
performing satisfactorily,' but if that determination is made,
the felony stays on the minor's record, and he/she goes
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directly to disposition. That could mean that the person is
incarcerated for up to the maximum time an adult could receive
for the same offense, or up to age 21. In other words, there
are serious consequences for any minor who agrees to be in the
DEJ program.
"Nonetheless, we are concerned with the prospect of
categorically excluding a long list of specific sexual
offenses from eligibility for DEJ. As a group, juvenile sex
offenders have a much lower recidivism rate than adult sexual
offenders, and there is significant research showing that
adolescent sexual behavior is misunderstood and
mischaracterized in court procedures. (See, e.g., Zimring,
Franklin E., An American Travesty: Legal Responses to
Adolescent Sexual Offending, University of Chicago Press,
2004). So many juvenile sex cases we have seen have involved
inappropriate, but hardly pathological behavior that will not
evolve into adult criminal sexual behavior.
"And surely, by foreclosing case-by-case analysis, this bill
violates the most fundamental principle of the California
juvenile justice system - that children should be dealt with
on the basis of their individual characteristics and needs
(Welfare & Institutions Code section 202). The range of
situations we have observed in juvenile sex cases over the
years, cries out for individualized solutions."
4)Prior Legislation :
a) SB 1626 (Ashburn), of the 2005-06 Legislative Session,
as introduced, was identical to this bill. SB 1626 failed
passage in the Senate Public Safety Committee and was later
substantially amended.
b) SB 520 (Ashburn), of the 2005-06 Legislative Session,
was nearly identical to this bill. SB 520 was never heard
by the Senate Public Safety Committee.
c) AB 2408 (Nava) of the 2007-08 Legislative Session, was
nearly identical to this bill. AB 2408 failed passage in
the Senate Public Safety Committee
REGISTERED SUPPORT / OPPOSITION :
Support
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Peace Officers Research Association of California (Sponsor)
California District Attorneys Association
California State Sheriffs' Association
California Correctional Supervisors Association
Crime Victims United of California
Opposition
Youth Law Center
Commonweal
California Public Defenders Association
Legal Services for Prisoners with Children
Friends Committee on Legislation
Taxpayers for Improving Public Safety
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744