BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
6
1
AB 61 (Nava)
As Amended June 15, 2009
Hearing date: June 23, 2009
Welfare and Institutions Code
AA:br
JUVENILE JUSTICE :
DEFERRED ENTRY OF JUDGMENT
HISTORY
Source: Peace Officers Research Association of California
Prior Legislation: AB 2408 (Nava) - 2008, failed in Senate
Public Safety
SB 1626 (Ashburn) - Ch. 675, Stats. 2006
SB 520 (Ashburn) - 2005-06 Session; died in the
Senate
Proposition 21 - passed by the electorate March
2000
Support: California State Sheriffs' Association; California
Correctional Supervisors Organization; California
District Attorneys Association; Los Angeles County
Professional Peace Officers Association; Long Beach
Police Officers Association; Crime Victims Action
Alliance; Crime Victims United of California; Los
Angeles County District Attorney's Office; Association
for Los Angeles Deputy Sheriffs; Riverside Sheriffs'
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Association
Opposition:Youth Law Center; Commonweal, The Juvenile Justice
Program; Legal Services for Prisoners with Children;
Friends Committee on Legislation; California Public
Defenders Association; Taxpayers for Improving Public
Safety
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUE
SHOULD DEFERRED ENTRY OF JUDGMENT, AS ENACTED BY PROPOSITION 21 IN
2000, BE ELIMINATED FOR MINORS WHO HAVE BEEN ALLEGED TO HAVE
COMMITTED SPECIFIED SEX OFFENSES?
PURPOSE
The purpose of this bill is to statutorily exclude minors
alleged to have committed specified sex offenses from
eligibility for deferred entry of judgment, as enacted by
Proposition 21 in 2000.
Existing law , as established by Proposition 21, creates a system
for deferred entry of judgment in juvenile court cases, as
specified, which essentially requires an accused 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 Section 794, the positive recommendation of the
probation department, and the motion of the prosecuting
attorney, but no sooner than 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."
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(WIC 790 et seq.)
Current law 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 judge
shall enter judgment and schedule a dispositional hearing." (WIC
793 (a).)
Current law 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:
(1) The minor has not previously been declared to be a
ward of the court for the commission of a felony
offense.
(2) The offense charged is not one of the offenses
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enumerated in Section 707 (b).<1>
(3) The minor has not previously been committed to the
custody of the Youth Authority.
(4) The minor's record does not indicate that probation has
ever been revoked without being completed.
(5) The minor is at least 14 years of age at the time of the
hearing.
(6) The minor is eligible for probation pursuant to Section
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<1> WIC Section 707 (b) offenses are the following: (1)
murder; (2) arson, as specified; (3) robbery; (4) rape with
force or violence or threat of great bodily harm; (5) sodomy by
force, violence, duress, menace, or threat of great bodily harm;
(6) lewd or lascivious act with a child under 14, as specified;
(7) oral copulation by force, violence, duress, menace, or
threat of great bodily harm; (8) forcible sexual penetration, as
specified; (9) kidnapping for ransom; (10) kidnapping for
purpose of robbery; (11) kidnapping with bodily harm; (12)
attempted murder; (13) assault with a firearm or destructive
device; (14) assault by any means of force likely to produce
great bodily injury; (15) discharge of a firearm into an
inhabited or occupied building; (16) specified crimes against
older or physically disabled persons, as specified; (17)
specified firearm offenses; (18) any felony offense in which the
minor personally used a weapon, as specified; (19) specified
felonies involving victim intimidation; (20) manufacturing,
compounding, or selling one-half ounce or more of any salt or
solution of a controlled substance, as specified; (21) any
violent felony, as specified; (22) escape, by the use of force
or violence, from any county juvenile hall, home, ranch, camp,
or forestry camp, as specified, where great bodily injury is
intentionally inflicted upon an employee of the juvenile
facility during the commission of the escape; (23) torture, as
specified; (24) aggravated mayhem, as specified; (25)
carjacking, as specified, while armed with a dangerous or deadly
weapon; (26) kidnapping, as specified; (27) kidnapping relating
to carjacking, as specified; (28) specified offenses involving
firearms in vehicles; (29) specified crimes involving explosive
devices; and (30) voluntary manslaughter, as specified.
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1203.06 of the Penal Code.<2> (Penal Code 790 (a).)
Current law states that, "The prosecuting attorney shall review
his or her file to determine whether or not paragraphs (1) to
(6), inclusive, of subdivision (a) apply. If the minor is
found eligible for deferred entry of judgment, the prosecuting
attorney shall file a declaration in writing with the court or
state for the record the grounds upon which the determination
is based, and shall make this information available to the
minor and his or her attorney. Upon a finding that the minor
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<2> This provision specifies offenses where the person
personally used a firearm; for any person with a prior for
specified serious offenses, previously convicted of a felony
where they were armed with a firearm, as specified; and
aggravated arson, as specified.
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is also suitable for deferred entry of judgment and would
benefit from education, treatment, and rehabilitation efforts,
the court may grant deferred entry of judgment. Under this
procedure, the court may set the hearing for deferred entry of
judgment at the initial appearance under Section 657. The
court shall make findings on the record that a minor is
appropriate for deferred entry of judgment pursuant to this
article in any case where deferred entry of judgment is
granted." (WIC 790 (b).)
This bill would amend Section 790 of the Welfare and
Institutions Code to exclude the following additional sex
crimes<3> from eligibility for deferred entry of judgment
(references are to Penal Code sections):
261 (a) (1), (3), (4), (5), (6), (7):
(specified circumstances of rape)
264.1: (rape in concert)
285: (incest)
286 (c) (1) or (3), (f), (g), (h), (i), (j),
(k): (specified circumstances of sodomy)
288 (a): (lewd or lascivious acts upon a
child)
288a (c) (1) or (3), (d), (f), (g), (h),
(i), (j), (k): (specified circumstances of
oral copulation)
289 (b), (c), (d), (e), (f), (g), (j):
(specified circumstances of sexual
penetration); and
647.6: (annoying or molesting a child under
18).
This bill would make additional, purely technical corrections.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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<3> Sex crimes with force or violence or threat of great bodily
harm already are excluded from eligibility for deferred entry of
judgment under current law.
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California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<4>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
----------------------
<4> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<5>
The final outcome of the panel's tentative decision, as well as
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<5> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Stated Need for This Bill
The author states:
Proposition 21, which passed in March 2000, entitled
"Gang Violence and Juvenile Crime Prevention Act of
1998" gave the ability to authorities to grant
Deferred Entry of Judgment (DEJ) to juveniles who
commit felonies in order to give them the opportunity
to "straighten up" through probation and subsequently
dismissing the actual case. The primary problem is
that there are only a limited number of felonies
excluded from qualifying for this alternative process
of dealing with these cases. There are numerous
felonies of a sexual nature that are not excluded,
including rape, sodomy, lewd and lascivious acts with
a child, and oral copulation without force, violence,
or threat of great bodily injury.
2. What This Bill Would Do
This bill would exclude certain sex crimes from eligibility for
deferred entry of judgment in the juvenile system, a legal
process created by the proponents of Proposition 21 in 2000. In
the juvenile court, deferred entry of judgment means a minor
admits an offense for the chance of successfully completing a 12
to 36-month program, as determined by probation and the
prosecuting attorney, in which case where his or her charges may
be dismissed.
As established by Proposition 21, sex offenses committed with
force or violence or threat of great bodily harm are statutorily
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excluded from deferred entry of judgment. This bill would
exclude additional specified sex offenses from eligibility for
deferred entry of judgment:
Rape, oral copulation, sexual penetration or sodomy
where a person is incapable, because of a mental disorder
or developmental or physical disability, of giving legal
consent, and this is known or reasonably should be known to
the person committing the act;
Rape, oral copulation, sexual penetration or sodomy
where a person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled
substance, and this condition was known, or reasonably
should have been known by the accused;
Rape, oral copulation, sexual penetration or sodomy
where a person is at the time unconscious of the nature of
the act, and this is known to the accused, as specified;
Rape, oral copulation, sexual penetration or sodomy
where a person submits under the belief that the person
committing the act is the victim's spouse, and this belief
is induced by any artifice, pretense, or concealment
practiced by the accused, with intent to induce the belief;
Rape, sodomy, or oral copulation where the act is
accomplished against the victim's will by threatening to
retaliate in the future against the victim or any other
person, and there is a reasonable possibility that the
perpetrator will execute the threat, as specified;
Rape, oral copulation, sexual penetration or sodomy
where the act is accomplished against the victim's will by
threatening to use the authority of a public official to
incarcerate, arrest, or deport the victim or another, and
the victim has a reasonable belief that the perpetrator is
a public official, as specified;
"In concert" rape or oral copulation, in which the
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defendant, voluntarily acting in concert with another
person, by force or violence and against the will of the
victim, committed a specified sex crime either personally
or by aiding and abetting the other person;
Incest - "Persons (who) being within the degrees of
consanguinity within which marriages are declared by law to
be incestuous and void, who intermarry with each other, or
who being 14 years of age or older, commit fornication or
adultery with each other";
Sodomy, sexual penetration or oral copulation with
another person who is under 14 years of age and more than
10 years younger than he or she;
Willful and lewd or lascivious act on a child who is
under the age of 14 years, as specified; and
Annoying or molesting a child under the age of 18.<6>
3. Prior Bills
Three prior bills, AB 2408 (Nava) in 2008, SB 1626 (Ashburn) in
2006, and SB 520 (Ashburn) in 2005, have proposed the exclusions
to DEJ this bill is proposing. Those proposals failed passage
in this Committee.
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<6> To prove that the defendant is guilty of this crime, the
People must prove that: 1. The defendant engaged in conduct
directed at a child; 2. A normal person, without hesitation,
would have been disturbed, irritated, offended, or injured by
the defendant's conduct; 3. The defendant's conduct was
motivated by an unnatural or abnormal sexual interest in the
child; AND 4. The child was under the age of 18 years at the
time of the conduct. [It is not necessary that the child
actually be irritated or disturbed.] [It is [also] not
necessary that the child actually be touched.] [It is not a
defense that the child may have consented to the act.]
(Judicial Council of California, Criminal Jury Instructions,
CALCRIM 2008, 1122.)
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4. Proposition 21; Deferred Entry of Judgment
As explained above, deferred entry of judgment ("DEJ") in the
juvenile law was established in 2000 by Proposition 21.
Proposition 21 was supported by the California District
Attorneys Association, the California State Sheriffs'
Association, the California Police Chiefs Association, crime
victims and others.<7> (See WIC 790, et seq.) Under DEJ, a
minor admits the charges without an adversarial proceeding. DEJ
may be granted either after a hearing or summarily, without a
hearing. (WIC 791, Cal. Rules of Court, Rule 5.800 (d).)
If the child waives the right to a speedy disposition
hearing, the court may summarily grant the deferred entry
of judgment.
When appropriate, the court may order the probation
department to prepare a report with recommendations on the
suitability of the child for deferred entry of judgment or
set a hearing on the matter, with or without the order to
the probation department for a report.
The probation report must address the following:
The child's age, maturity, educational background,
family relationships, motivation, any treatment
history, and any other relevant factors regarding the
benefit the child would derive from education,
treatment, and rehabilitation efforts; and
The programs best suited to assist the child and
the child's family.
The probation report must be submitted to the court, the
child, the prosecuting attorney, and the child's attorney
at least 48 hours, excluding non-court days, before the
hearing. (Cal. Rules of Court, Rule 5.800 (d).)
-------------------------
<7> See Argument in Favor of Proposition 21, Secretary of
State's Office.
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If a hearing is granted to determine if DEJ should apply, the
Court Rule provides:
At the hearing, the court must consider the
declaration of the prosecuting attorney, any report
and recommendations from the probation department,
and any other relevant material provided by the child
or other interested parties.
(1) If the child consents to the deferred entry of
judgment, the child must enter an admission as stated
in Rule 5.778 (c) and (d). A no-contest plea must
not be accepted.
(2) The child must waive the right to a speedy
disposition hearing.
(3) After acceptance of the child's admission,
the court must set a date for review of the child's
progress and a date by which the probation
department must submit to the court, the child, the
child's parent or guardian, the child's attorney,
and the prosecuting attorney a report on the child's
adherence to the conditions set by the court.
Although the date set may be any time within the
following 36 months, consideration of dismissal of
the petition may not occur until at least 12 months
have passed since the court granted the deferred
entry of judgment.
(4) If the court grants the deferred entry of
judgment, the court must order search-and-seizure
probation conditions and may order probation
conditions regarding the following:
(A) Education;
(B) Treatment;
(C) Testing for alcohol and other
drugs, if appropriate;
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(D Curfew; and
(E) Any other conditions consistent
with the identified needs of the child and the
factors that led to the conduct of the child.
(Cal. Rules of Court, Rule 5.800 (f).)
Current law provides very broad provisions with respect to
revoking a deferred entry of judgment and entering judgment
against the minor. For example, the court is required to
schedule a hearing if the court itself, the probation department
or the prosecuting attorney alleges that the minor has not
complied with the conditions imposed or that the conditions are
not benefiting the minor. (See WIC 793; Rule of Court 5.800
(h).) Because a minor in a DEJ case already has admitted the
allegations against him, once the DEJ is lifted the disposition
hearing occurs.
5. Support
This bill is supported by several law enforcement groups.
The sponsor, PORAC, submits in part:
Sexually violent criminals are some of the most
dangerous offenders. It is important that the
punishment fit the crime. In the case of these
sexually violent offenses, sending the offenders
straight to a parole officer and sealing their
records does not make certain that they will be
adequately reformed. Being able to access a
juvenile's history is key to properly assessing their
propensity to commit further sexually violent crimes;
. . . .
Similarly, Crime Victims United of California argues:
The nature of sex crimes committed by juveniles
provides good insight into the individual's potential
sexual and violent tendencies as an adult. Research
seems to show that many sex offenders began their
sexually abusive behavior as juveniles.
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The Los Angeles County District Attorney's Office submits:
Our office believes the sexually violent offenses
enumerated in AB 61 are not appropriate offenses to be
handled through DEJ. AB 61 will help ensure that
these sexually violent juveniles are properly
rehabilitated.
6. Opposition
This bill is opposed by several juvenile advocacy groups.
Commonweal, The Juvenile Justice Program, states in part:
AB 61 is a fourth legislative attempt to remove this
option for children charged with listed sex
offenses. Prior Senate bills . . . . also tried to
delete the "DEJ" option for first time juvenile sex
offenders, as did Assembly Member Nava's AB 2408
last year. . . . These bills arise from a single
Kern County case in which the prosecutor, against
the victim's family wishes, placed a juvenile sex
offender in the DEJ program in lieu of formal
prosecution. . . .
. . . When they put Deferred Entry into Proposition
21, initiative sponsors also eliminated WIC Section
654 "informal supervision" as an option in first
time juvenile felony cases . . . . DEJ was heavily
promoted by the sponsors as a "better model" for
first time offenders - one that was under prosecutor
control. AB 61 violates the intent and structure of
Proposition 21 by removing both supervision options
(WIC 654 and DEJ) for minors charged with first-time
felony sex offenses.
. . . If the offense charged is a serious sex crime
on the WIC 707 (b) list, the minor is already
ineligible for Deferred Entry of Judgment . . . .
Juveniles over 14 charged with a serious sex offense
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on the WIC 70 7(b) list can be, and often are,
direct filed in adult criminal court at the
prosecutor's discretion. Deferred Entry of judgment
is available only for lesser sex offenses that fall
below the WIC 707 (b) threshold.
. . . Under current law, no minor can get DEJ as an
option unless the prosecutor initiates a request for
DEJ in the case . . . . Subsequently, if DEJ is
granted by the court, the deferral of judgment may be
cancelled unilaterally by the prosecutor if he or she
believes the minor has not performed satisfactorily .
. . . In our justice system we rely on prosecutors to
represent victim rights in juvenile delinquency
proceedings. In our view, victims are adequately
protected by existing law.
. . .
. . . AB 61 would remove a dispositional option
from the Juvenile Court that could well be
appropriate under all of the circumstances of the
case. The Deferred Entry of Judgment option as
presently structured is basically consistent with
the overall objective of the Juvenile Court law,
which is to provide treatment and rehabilitation as
may be consistent with the goal of public
protection.
Similarly, the Youth Law Center argues:
(T)his 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 . . . . The
range of situations we have observed in juvenile sex
cases over the years, cries out for individualized
solutions.
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7. Background: Juvenile Sex Offenders
According to a fact sheet prepared in 2002 by the American
Prosecutors Research Institute, research indicates that
"(a)dolescent sex offenders are significantly different from
adult sex offenders in several ways:
Adolescent sex offenders are considered to be more
responsive to treatment than adult offenders and do not
appear to continue re-offending into adulthood,
especially when provided with appropriate treatment.
Adolescent sex offenders have fewer numbers of victims
than adult offenders and, on average, engage in less
serious and aggressive behaviors. Most adolescents do
not have deviant sexual arousal and/or deviant sexual
fantasies that many adult sex offenders have. Most
adolescents are not sexual predators nor do they meet
the accepted criteria for pedophilia. Few adolescents
appear to have the same long-term tendencies to commit
sexual offenses as some adult offenders. Across a
number of treatment research studies, the overall
sexual recidivism rate for adolescent sex offenders is
low, generally under 11 percent. Adolescent offenders
against children tend to have slightly lower sexual
recidivism rates than adolescents who rape other teens.
Adolescent sex offender rates for sexual re-offenses
(5-14%) are substantially lower than their rates of
recidivism for other delinquent behavior (8-58%).
. . .
Adolescent sex offenders should be subjected to the normal
juvenile probation supervision requirements.
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Most adolescent sex offenders pose a manageable level
of risk to the community. They can be safely
maintained in the community under supervision by
probation officers and be treated in outpatient
treatment programs. However, a minority pose a danger
to the community and require residential or custodial
placement to ensure safety.
It is important to identify higher risk youth in order
to make the most effective placement decisions. There
is currently no scientifically validated system or test
to determine exactly which adolescent sex offenders
pose a high risk for recidivism. Mental health
professionals and treatment staff typically
overestimate the possibility of recidivism in
evaluations, labeling far more teenagers as high risk
than is actually accurate. In predicting risk to the
community, it is usually appropriate to assume that an
adolescent sex offender is relatively low risk unless
there is significant evidence to suggest otherwise.
Low risk does not imply the absence of risk, and
low-risk offenders still need supervision and
treatment. The following factors are important to
consider in evaluating risk:
A history of multiple sexual offenses,
especially if any occurs after adequate
treatment.
A history of repeated non-sexual juvenile
offenses.
Clear and persistent sexual interest in
children.
Failure to comply with an adolescent
sexual offender treatment program.
Self-evident risk signs such as out-of-control
behavior, statements of intent to re-offend,
etc.
Family resistance regarding supervision
and compliance (e.g., the youth needs to be
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supervised by appropriate adults in the home
and community and the adults need to make
certain the youth complies with probation and
treatment requirements). . . . <8>
***************
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<8> What Research Shows About Adolescent Sex Offenders,
American Prosecutors Research Institute, National District
Attorneys Association (Volume V, November 2, 2002) (citations
omitted).