BILL ANALYSIS
AB 1844
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Date of Hearing: May 19, 2010
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 1844 (Fletcher) - As Amended: April 28, 2010
Policy Committee: Public
SafetyVote: 5-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill, the Chelsea King Child Predator Prevention Act of
2010, significantly increases sentences for sexual offenses
against minors -doubling current penalties and creating
life-without-possibility-of-parole (LWOP) sentences - and
requires lifetime parole for most of these offenses.
FISCAL EFFECT
According to an analysis of this bill by the Legislative
Analyst's Office (LAO), requested by the chair of this
committee, this bill will create annual GF costs in the tens of
millions of dollars within the decade, and hundreds of millions
of dollars for longer prison terms in the out-years, lifetime
parole supervision and increased parole revocations.
These estimates may be conservative, as the LAO analysis used
the marginal overcrowding figures for inmates and parolees
($23,000 and $2,500, respectively), rather than the budgeted per
capita cost ($45,000 and $6,000).
Also, the LAO estimates do not include:
1)How many offenders would receive life terms as a result of
this bill. (The Department of Corrections and Rehabilitation
(CDCR) was unable to provide sufficient data to make such as
estimate.) LAO does state, however, "that the number of
offenders affected by the measure could be substantial." LAO
specifically notes "the inclusion of a traumatic condition on
a victim under age 14, would appear to be broad enough to
affect a significant number of offenders."
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2)The length-of-stay differential for offenders who would serve
a 15 or 25-to-life sentence under current law, but would serve
LWOP under this bill. There is insufficient data to determine
the length-of-stay for lifers with the possibility of parole,
though clearly it will be shorter than LWOP, so out-year costs
would be significant.
3)State trial court costs as a result of more trials. Offenders
are not likely to plead to life. These costs could range into
the low tens of millions of dollars.
4)Potential for construction costs to house the increased
population. These one-time out-year costs could be in the low
hundreds of millions.
SUMMARY CONTINUED
This bill (1) increases determinate triad sentences for sex
offenses against minors, (2) creates LWOP and 25-years-to-life
terms for specified sex offenses against minors, (3) requires
lifetime parole for sex offenses against minors, and (4)
prohibits registered sex offenders to enter any park where
children gather. Specifically, this bill:
1)Triad Sentence Increases
a) Assault w/intent to commit mayhem, rape, sodomy, oral
copulation, or rape with a foreign object, or lewd and
lascivious acts against a minor under the age of 14, is
punishable by 2, 4, 6 years.
This bill increases this penalty, if the assault is
committed upon a minor under 18, to 5, 7, or 9 years.
b) Rape (PC 261, 262) is punishable by 3, 6, or 8 years.
This bill increases this penalty, when the victim is
under 14, to 6, 12, or 16 years, and to 6, 9, or 11 years when
the victim is 14 to 18.
c) Rape in concert is punishable by 5, 7, or 9 years.
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This bill increases this penalty, when the victim is
under 14, to 7, 13, or 17 years, and to 6, 9, or 11 years when
the victim is 14 to 18.
d) Anyone who participates in an act of sodomy with a minor
under 18 may be punished by up to six months in county
jail, or 16 months, 2, or 3 years in state
prison.
Anyone over 21 who participates in an act of sodomy with
a minor under 16, may be punished by 16 months, 2, or 3
years.
Anyone who is more than 10 years older than a minor under
14 and participates in an act of sodomy may be
punished by 3, 6, or 8 years.
Anyone who commits a forceful act of sodomy may be
punished by 3, 6, or 8 years.
This bill increases the penalty for forceful sodomy with
a minor under 14 to 6, 12, or 16 years; and for forceful
sodomy on minor 14 to 18 to 6, 9, or 12 years.
e) Anyone who commits an act of sodomy by force in concert
may be punished by 5, 7, or 9 years.
This bill increases the penalty for forceful sodomy in
concert to 7, 13, or
17 years if the victim
is under 14, and to 7, 10, or 12 years if the victim is 14 to
18.
f) Lewd and Lascivious acts accomplished by force on a
minor under 14 is punishable by 3, 6, or 8 years.
This bill increases this penalty to 3, 12, or 16 years.
g) Lewd and Lascivious acts accomplished by force by a
caretaker is punishable by 3, 6, or 8 years.
This bill increases this penalty to 6, 9, or 11 years.
h) Oral copulation with a person under 18 is punishable by
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up to six months in county jail or 16 months, 2, or 3 years
in state prison.
Oral copulation by a person over 21 with a minor under 16
is punishable by 16 months, 2, or 3 years.
Oral copulation with a minor under 14 by a person more
than 10 years older is punishable by 3, 6, or 8 years.
Oral copulation by force is punishable by 3, 6, or 8
years.
This bill increases the penalty for forceful oral
copulation on a minor under 14 to 6, 12, or 16 years, and to
6, 9, or 11 years if the minor is 14 to18.
i) Oral copulation by force, in concert is punishable by 5,
7, or 9 years.
This bill increases this penalty to 7, 13, or 17 years if
the minor is under 14, and to 7, 10, or 12 years if the minor
is 14 to 18.
j) Forcible rape is punishable by 3, 6, or 8 years.
This bill increases this penalty to 6, 12, 16 years when
the victim is under 14, and to 6, 9, or 11 years if the victim
is 14 to 18.
2)Life Term Sentence Increases
a) Rape, spousal rape, rape in concert, lewd and lascivious
acts on a minor, sexual penetration, sodomy, oral
copulation, continuous sexual abuse of a child, is
punishable by 25-years-to-life with one of the
circumstances from group 1, or 2 of the circumstances from
group 2, and by 15-years-to-life with one of the
circumstances from group 2.
Group 1:
i) The defendant has been previously convicted of a
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specified sex offense.
ii) The
defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the
risk of harm to the victim.
iii) The
defendant inflicted aggravated mayhem or torture on the
victim or another person in the commission of the
offense.
iv) The
defendant committed the offense during a first-degree
burglary.
v) The defendant inflicted great bodily injury on the
victim or another person.
vi) The
defendant committed rape by a foreign object, sodomy in
concert, oral copulation in concert, with specified
factors.
Group 2:
i) The defendant kidnapped the victim, as specified.
ii) The
defendant committed the offense during a burglary.
iii) The
defendant used a dangerous weapon in the commission of
the offense.
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iv) The
defendant has been convicted of committing the sexual
offense against multiple victims.
v) The defendant bound the victim or another person in
the commission of the offense.
vi) The
defendant administered a controlled substance to the
victim.
vii) The
defendant committed rape by a foreign object, sodomy in
concert, oral copulation in concert, with specified
factors.
Current law also:
Provides that any person who commits any of the following
acts upon a child who is under 14 and seven or more years
younger than the offender is guilty of aggravated sexual
assault of a child, punishable by 15-years-to-life: rape;
rape or sexual penetration, in concert; sodomy; oral
copulation, sexual penetration (PC Sec 269).
Provides that any person over 18 who engages in sexual
intercourse or sodomy with a child under 10 shall be punished
by 25-years-to-life, and that any person over 18 who engages
in oral copulation or sexual penetration with a child under 10
years of age shall be punished by15-years-to-life (PC Sec
288.7(a)(b)).
This bill specifies that any person convicted of rape,
spousal rape, rape in concert, lewd or lascivious acts,
sexual penetration, sodomy, oral copulation, or continuous
sexual abuse of a child, against a child under the age of
14 under one or more of the circumstances in group 1 (plus
great bodily injury, which is moved up from group 2 in this
bill) or under two or more of the circumstances in group 2,
is punishable by LWOP. A conviction of one of these
offenses, under one of the circumstances in group 2 is
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punishable by 25-to-life.
This bill specifies any person convicted of rape, spousal
rape, rape in concert, lewd or lascivious acts, sexual
penetration, sodomy, oral copulation, or continuous sexual
abuse of a child upon a victim who is a child under 14
years of age and who, in the commission of the offense,
inflicted physical injury resulting in a traumatic
condition shall be punished by LWOP.
This bill states that any person convicted of rape by force
or fear, spousal rape, rape in concert, sexual penetration,
sodomy as specified, or oral copulation as specified, with
a victim 14 to 18, under one or more of the circumstances
in Group 1, or under two or more of the circumstances in
Group 2, shall be punished by LWOP.
This bill states that any person convicted of rape by force
or fear, spousal rape, rape in concert, sexual penetration,
sodomy as specified, or oral copulation as specified, with
a victim 14 to 18, under one of the circumstances Group 2,
shall be punished by 25-to-life.
3)Lifetime Parole
a) Parole is generally for a period of up to 3 years,
except for specified sex offenses (rape, sodomy, oral
copulation) for which parole is up to 5 years.
This bill increases this five-year parole period to 10
years, unless a longer period is specified, and adds
offenders who received a life term for kidnapping with the
intent to commit a sexual offense.
b) First and second degree murder results in lifetime
parole. These offenders may be discharged from parole
after 7 or 5 years, respectively, unless the parole board
determines otherwise.
c) This bill requires lifetime parole (and GPS supervision
as a result of current law that requires GPS for registered
sex offenders while on parole) with no possibility of
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discharge for:
i) continuous sexual abuse of a child
ii) a
person serving a life term for penetration of a child
under 10
iii) a person serving a life term as a habitual sex
offender with a child victim
iv) a person serving a life term for aggravated sexual
assault on a child
v) a person serving a life term for lewd and lascivious
acts on a child
vi) lewd and lascivious acts on a minor under 14
vii) rape, spousal rape, sodomy, oral copulation if the
victim is under 14
4)Sex Offenders May Not Enter a Park
This bill makes it a misdemeanor for any person required to
register as a sex offender for a felony offense to enter any
park "where children regularly gather," without written
permission from a parole official, or if the person is not on
parole, permission from the chief park official.
COMMENTS
1)Rationale . The author and proponents contend the proposed
penalty increases, including LWOP and lifetime parole, will
deter sex offenders and protect children.
2)Opponents - generally defense bar representatives and the ACLU
- counter the proposal is reactionary, over broad and
extremely costly.
3)Chelsea King was a 17-year-old Poway high school student who
disappeared February 25, 2010 after a run in a Rancho Bernardo
Park. Law enforcement and volunteers searched for days, until
they found her body near Lake Hodges in San Diego.
On April 16, registered sex offender John Gardner pled guilty
to the murders of Chelsea King and Amber Dubois, a 14-year-old
Escondido girl abducted on her way to school in February 2009,
with the special circumstance of murder during the course of
rape in each case. He also pled guilty to assault with intent
to rape a third victim. The parties stipulated that the
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maximum punishment allowed by law, other than death, will be
imposed for these crimes.
On May 31, 2000, Gardner was convicted of two counts of lewd
and lascivious acts against a child under 14 and one count of
false imprisonment. Additional charges of a forcible lewd act
against a child under 14 and a misdemeanor count of annoying
or molesting a child under 18 were dismissed as part of a plea
bargain.
4)The 13 recommendations from The California Sex Offender
Management Board report on Gardner, requested by the governor,
did not include longer sentences or parole periods.
According to the report, "This report examines California laws
and practices used to monitor convicted sex offenders to
suggest changes that can help such horrific crimes from
occurring?.
"The focus is not just what could have been done, if anything,
to prevent these crimes, but what can be done to prevent any
future crimes of sexual assault, with this case being used as
a lens through which we can examine that goal. For the victims
of crimes which have already occurred, California also needs
to invest in victim services, to ensure that victims' needs
are met and that they can fully participate in the criminal
justice system.
Unfortunately, there will always be some risk of re-offense by
sex offenders, even if California implements the best possible
system for dealing with such offenders. However, it is
CASOMB's belief that implementation of the recommendations in
this report will contribute significantly to reduce
reoffending and prevent future victimization."
With its release of this report May 1, 2010, "The Board is
calling on lawmakers to examine and update policies impacting
the management, treatment and housing of sex offenders.
Specifically, the Board recommends that California focus
resources on treatment for sex offenders, rethink the
effectiveness of residency restrictions, establish sex
offender exclusion zones rather than residence restrictions,
implement a better tool to assess sexual predators' risk to
reoffend, and combine GPS tracking with lifetime supervision
for exceptionally high risk offenders."
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5)LWOP and proportionality . The punishment for first-degree
murder in California is 25-years-to-life. With special
circumstances, the punishment is death or, in the alternative,
LWOP. This bill punishes rape, spousal rape, rape in concert,
lewd or lascivious acts, sexual penetration, sodomy, oral
copulation, or continuous sexual abuse of a child, under
specified circumstances with LWOP. For the most part, this
bill takes one-strike sex offenses, which are generally
punished for 25-years-to-life, and increases the penalty to
LWOP if the victim is under the age of 14.
Should these offenses, as heinous as they are, be punished
more severely than murder?
6)Is existing one-strike sentencing for sex offenses
insufficient? One-strike sex offenses trigger 25-years-to-life
in prison for a specified sex offense with one or more
specified circumstances. Rape, spousal rape, rape in concert,
lewd and lascivious acts on a minor, sexual penetration,
sodomy, oral copulation, continuous sexual abuse of a child,
is punishable by 25-years-to-life with one of the
circumstances from group 1 (see Summary point (2), above) or
two of the circumstances from group 2, and by 15-years-to-life
with one of the circumstances from group 2. These penalties
currently apply to all individuals, regardless of the victim's
age. This bill expands the punishment for one-strike sex
offenses to LWOP in most instances for minors under the age of
14 years.
In addition, any person who commits any of the following acts
upon a child under 14 and seven or more years younger than the
offender is guilty of aggravated sexual assault of a child,
punishable by 15-years-to-life for rape, rape or sexual
penetration in concert, sodomy, oral copulation, or sexual
penetration.
7)Suggested Amendments
a) This bill punishes rape, spousal rape, rape in concert,
lewd or lascivious acts, sexual penetration, sodomy, oral
copulation, or continuous sexual abuse of a minor under 14
where the victim suffers a "traumatic injury" with LWOP.
Traumatic injury is defined as "as a wound or external or
internal injury, whether of a minor or serious nature,
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caused by a physical force." Therefore a bruise would be
sufficient to determine LWOP. The committee may wish to
delete this provision, which is a significant out-year cost
driver.
b) This bill requires lifetime parole for a series of
offenses, including lewd and lascivious acts on a minor
under the age of 14 (PC 288(a)) - defined as any acts that
appeal to the sexual desires of the offender, which can
include touching over clothing. It does not require force
or fear. As this offense is the largest cost driver behind
the lifetime parole provision (almost 800 of these
offenders are paroled annually), the committee may wish to
delete this provision.
c) Given the significant cost of this measure and the
state's ongoing fiscal problems, the committee may wish to
acknowledge the need to make to make CDCR budget and inmate
population reductions sufficient to at least partially
cover these costs, by making this measure contingent upon a
subsequent statute that reduces CDCR spending by a
specified amount beginning in 2011. This subsequent statute
would presumably be developed over the course of 2010-11
budget deliberations.
d) The language prohibiting registered sex offenders in
parks appears vague and over broad. What constitutes a park
where children regularly gather? Should this prohibition
apply to consensual offenders between teens, misdemeanor
sexual batterers, and first-time misdemeanor indecent
exposure offenders? The committee may wish to clarify and
narrow the focus of this language to registered sex
offenders whose victims were minors.
8)Support. The Peace Officers Research Association of CA
(PORAC), the CA State Sheriffs Association, and Crime Victims
United. According to PORAC, "Assembly Bill 1844 will institute
lifetime parole and GPS monitoring for serious sex offenders,
as well as other restrictions for anyone convicted of serious
and violent sexual offenses.
"In the wake of the recent tragedies in Southern California,
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we feel that additional steps must be taken to keep these
dangerous offenders off the streets."
9)Opposition . Ca Attorneys for Criminal Justice (CACJ), the
ACLU, and the CA Public Defenders (CPDA) Association.
According to CPDA, "[t]he death of Chelsea King is a tragedy.
In her honor, it is incumbent upon California legislators to
use scarce resources wisely. Locking up every child molester
for life without the possibility of parole will not create a
safer California. To the contrary, we believe that this
measure will tie up already scarce resources thereby
preventing law enforcement from focusing on those individuals
who pose a risk to society.
"Rape and sexual assault are a serious problem and deserve
critical and analytical attention. Evidence based research has
shown that all sex offenders are not the same, accordingly
blanket approaches such as the one envisioned in this measure
do not achieve the desired effect of making society safer. Sex
offenders need to be treated, assessed, and where appropriate
re-integrated into the community so that they will not
re-offend.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081