BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1844 (Fletcher) 4
As Amended June 2, 2010
Hearing date: June 29, 2010
Penal Code
AA/JM:mc
SEX OFFENSES:
PENALTIES
HISTORY
Source: Author
Prior Legislation: Proposition 83, November 2006 General
Election
SB 1128 (Alquist) - Ch. 337, Stats. 2006
SB 1780 (Hollingsworth) - 2004, failed in this
Committee
SB 448 (Poochigian) - 2005, held in Senate
Appropriations
SB 881 (Hollingsworth) - 2003, failed in this
Committee
SB 884 (Poochigan) - 2003, held in Senate
Appropriations
SBx1 26 (Bergeson) - Ch. 14, Stats. 1994
Support: Attorney General of California; Senator Dianne
Feinstein; San Diego County
District Attorney; San Bernardino County District
Attorney; District Attorney City
and County of San Francisco; Los Angeles County
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District Attorney; County of San Diego; Mayor of the
City of San Diego; City of La Mesa; City of San Marcos;
State Superintendent of Public Instruction;
California State Sheriffs' Association;
San Bernardino County Sheriff-Coroner; California
State PTA; Crime Victims United of California; Child
Abuse Prevention Center; City of Encinitas; City of
Vista; City of Poway; Lakeside Union School
District; Los Angeles County Board of Supervisors; La
Mesa Chamber of Commerce; Grossmont Union High School
District; Ramona Chamber of Commerce; State Public
Affairs Committee of the Junior Leagues of
California; Peace Officers Research Association of
California;
individuals
Opposition:
California Public Defenders Association; California Attorneys for
Criminal Justice; Taxpayers for Improving Public Safety; American
Civil Liberties Union; Friends
Committee on Legislation of California; individuals
Assembly Floor Vote: Ayes 71 - Noes 0
KEY ISSUES
SHOULD DETERMINATE sentenceS FOR SPECIFIED SEX CRIMES BE INCREASED,
AS SPECIFIED?
SHOULD INDETERMINATE SENTENCES FOR SPECIFIED SEX CRIMES BE
INCREASED, INCLUDING LIFE WITHOUT THE POSSIBILITY OF PAROLE FOR
CERTAIN OFFENSES, AS SPECIFIED?
SHOULD A new misdemeanor prohibiting felony sex offender registrants
from entering a park where children regularly gather BE ENACTED, as
specified?
SHOULD parole periods for specified sex offenders BE INCREASED,
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including up to lifetime parole, as specified?
PURPOSE
The purpose of this bill is to change a number of laws relating
to sex crimes and sex offenders in the following three areas:
1) sentence increases, with respect to both determinate and
indeterminate sentences; 2) enactment of a new misdemeanor
prohibiting felony sex offender registrants from entering a park
where children regularly gather, as specified; and 3) increased
parole periods for specified sex offenders, including up to
lifetime parole, as specified.
SENTENCING PROVISIONS
Determinate Sentencing Law Generally
Existing law provides that when a judgment of imprisonment is to
be imposed and the statute specifies a "triad" of three possible
terms - a lower, middle or upper term - the choice of the
appropriate term shall rest within the sound discretion of the
court. The court shall set forth on the record the reasons for
its choice. The court may not impose an upper term by using the
fact of any enhancement upon which sentence is imposed. (Pen.
Code 1170.)
Existing law provides that where a defendant has been convicted
of more than one offense, the court shall impose an "aggregate
term" that is constructed from a principal (or base) term and
subordinate terms reflecting additional crimes of which the
defendant has been convicted. (Pen. Code 669, 1170 and
1170.1.) The following rules apply:
The court shall determine as to each subordinate term
whether or not to impose the term to be served at the same
time as the principal term (a concurrent term) or
consecutively.
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A consecutive term is served in succession with (in
addition to) the principal term.
Except where otherwise provided in the law, a
consecutive, subordinate term is to be imposed as 1/3 of
the middle term for that offense.<1>
Existing law includes special sentencing rules authorizing or
requiring full term consecutive terms for each count of
conviction for specified sex offenses.<2> These consecutive
sentencing rules apply "in lieu" of the normal rules in Section
1170.1 for imposing consecutive sentences.<3> (Pen. Code
667.6, subds. (c) and (d).)
This Bill: Proposed Changes to Determinate Sentencing Laws for
Sex Crimes Against Minors
Assault with Intent to Commit Specified Sex Crimes
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<1> For example, a subordinate consecutive term for robbery
(with a triad of two, three, or five years) would be one year,
1/3 of the middle term of three years.
<2> The following crimes are subject to full-term consecutive
sentences: rape (Pen. Code 261, subd. (a), (2), (3), (6), or
(7)); spousal rape (Pen. Code 262, subd. (a), (1), (4), or
(5).); rape, spousal rape, or sexual penetration, in concert
(Pen. Code 264.1.); sodomy (Pen. Code 286, subds. (c),
(2)-(3), (d) or (k)); lewd or lascivious act by force or
coercion (Pen. Code 288, subd. (b)); continuous sexual abuse
of a child (Pen. Code 288.5); oral copulation (Pen. Code
288a, subds. (c)(2)-(3), (d) or (k)); sexual penetration, as
specified (Pen. Code 289, subds. (a) or (g)); and assault with
intent to commit a specified sexual offense (Pen. Code 220).
<3> The rules for imposing consecutive sentences are as
follows: The court must impose fully consecutive terms for each
crime that a) involved a different victim, or b) was committed
on separate occasions from another crime. Crimes occurred on
separate occasions where the defendant had an opportunity to
reflect between two crimes. (Pen. Code 667.6, subd. (d).)
The court may impose a fully consecutive term for each crime
listed in subdivision (e) if the crime involved the same victim
on the same occasion. (Pen. Code 667.6, subd. (c.).)
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Existing law provides that any person who assaults another with
intent to commit mayhem, rape, sodomy, oral copulation, or any
violation of Section 264.1, 288, or 289 <4>shall be punished by
imprisonment in the state prison for two, four, or six years.
(Penal Code 220(a).)
Existing law further provides that any person who, in the
commission of a burglary of the first
degree, as specified, assaults another with intent to commit
rape, sodomy, oral copulation, or any
violation of Section 264.1, 288, or 289 shall be punished by
imprisonment in the state prison for life with the possibility
of parole. (Penal Code 220(b).)
This bill would provide that, except where a life term applies,
any person who assaults another person under 18 years of age
with the intent to commit rape, sodomy, oral copulation, or any
violation of Section 264.1, 288, or 289 shall be punished by
imprisonment in the state prison for five, seven, or nine years.
Forcible Rape
Current law states that rape, as defined in Section 261 or
262,<5> is punishable by imprisonment in the state prison for
three, six, or eight years. (Penal Code 264.)
This bill would add the following penalties to this provision:
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<4> These cross-referenced offenses generally pertain to in
concert rape, child molestation, and forcible sexual
penetration.
<5> These rape offenses generally include rape and spousal
rape; they do not include statutory rape, which is defined and
punished pursuant to Penal Code section 261.5.
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Any person who commits forcible rape, as specified,<6>
upon a child who is under 14 years of age shall be punished
by imprisonment in the state prison for 6, 12, or 16 years.
Any person who commits forcible rape upon a minor who is
14 years of age or older shall be punished by imprisonment
in the state prison for 6, 9, or 11 years.
This bill would expressly provide that these provisions would
not preclude prosecution under any other provision of law.
In Concert Forcible Rape
Current law provides that notwithstanding the rape penalties
described above, "in any case
in which the defendant, voluntarily acting in concert with
another person, by force or violence and against the will of the
victim, committed . . . (rape, spousal rape, or forcible sexual
penetration, as specified,<7>) either personally or by aiding
and abetting the other person, that fact shall be charged in the
indictment or information and if found to be true by the jury,
upon a jury trial, or if found to be true by the court, upon a
court trial, or if admitted by the defendant, the
defendant shall suffer confinement in the state prison for five,
seven, or nine years. (Penal Code 264.1.)
This bill would add the following penalties to this provision:
If the victim is a child who is under 14 years of age,
the defendant shall be punished by imprisonment in the
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<6> This specifically would include, in violation of Penal Code
section 261(a)(2), the following: "Where it is accomplished
against a person's will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
person or another," hereinafter referred to generally as
"forcible" rape.
<7> Specifically, an act described in Section 261, 262, or
289.
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state prison for 7, 13, or 17 years.
If the victim is a minor who is 14 years of age or
older, the defendant shall be punished by imprisonment in
the state prison for 7, 10, or 12 years.
This bill would expressly provide that these provisions would
not preclude prosecution under any other provision of law.
Sodomy
Current law provides specified penalties for the crime of
sodomy,<8> including the following:
Except as provided,<9> any person who participates in an
act of sodomy with another person who is under 18 years of
age shall be punished by imprisonment in the state prison,
or in a county jail for not more than one year.
Except as provided, any person over the age of 21 years
who participates in an act of sodomy with another person
who is under 16 years of age shall be guilty of a felony.
Any person who participates in an act of sodomy with
another person who is under 14 years of age and more than
10 years younger than he or she shall be punished by
imprisonment in the state prison for three, six, or eight
years.
Any person who commits an act of sodomy when the act is
--------------------------
<8> Sodomy is defined as "sexual conduct consisting of contact
between the penis of one person and the anus of another person.
Any sexual penetration, however slight, is sufficient to
complete the crime of sodomy." (Penal Code 289(a).)
<9> The exception is lewd and lascivious conduct under Penal
Code section 288, a felony.
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accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person shall be
punished by imprisonment in the state prison for three,
six, or eight years. (Penal Code 286.)
This bill would add the following penalty provisions to this
section:
Any person who commits an act of sodomy with another
person who is under 14 years of age when the act is
accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person shall be
punished by imprisonment in the state prison for 6, 12, or
16 years.
Any person who commits an act of sodomy with another
person who is a minor 14 years of age or older when the act
is accomplished against the victim's will by means of
force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person
shall be punished by imprisonment in the state prison for
6, 9, or 11 years.
This bill would provide that these provisions would not preclude
prosecution under any other provision of law.
Current law provides that any person who, while voluntarily
acting in concert with another person, either personally or
aiding and abetting that other person, commits an act of sodomy
when the act is accomplished against the victim's will by means
of force or fear of immediate and unlawful bodily injury on the
victim or another person or where the act is accomplished
against the victim's will by threatening to retaliate in the
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future against the victim or any other person, and there is a
reasonable possibility that the perpetrator will execute the
threat, shall be punished by imprisonment in the state prison
for five, seven, or nine years. (Penal Code 286(d).)
This bill would add the following penalty provisions to this
subdivision:
Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting
that other person, commits an act of sodomy upon a victim
who is under 14 years of age, when the act is accomplished
against the victim's will by means of force or fear of
immediate and unlawful bodily injury on the victim or
another person, shall be punished by imprisonment in the
state prison for 7, 13, or 17 years.
Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting
that other person, commits an act of sodomy upon a victim
who is a minor 14 years of age or older, when the act is
accomplished against the victim's will by means of force or
fear of immediate and unlawful bodily injury on the victim
or another person, shall be punished by imprisonment in the
state prison for 7, 10, or 12 years.
This bill would provide that these provisions would not preclude
prosecution under any other provision of law.
Lewd or Lascivious Act on Child Under 14 - Child Molestation
Current statute provides that any person who willfully and
lewdly commits any lewd or
lascivious act, as specified, upon or with the body, or any part
or member thereof, of a child who is under the age of 14 years,
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with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of that person or the child,
is guilty of a felony and shall be punished by imprisonment in
the state prison for three, six, or eight years.<10> (Penal
Code 288(a).)
Current law further provides if an act described above is
committed "by use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person, is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight
years."<11> (Penal Code 288(b).)
This bill would increase this penalty to six, twelve or sixteen
years in state prison.
Current law provides that any person who is a caretaker and
commits an act described above upon a dependent person by use of
force, violence, duress, menace, or fear of immediate and
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<10> Lewd act with a child can be any touching (through
clothing or on the skin) of a child (by the defendant or by the
child at the instigation of the defendant) done for sexual
gratification (of the perpetrator or the child). (People v.
Martinez (1995) 11 Cal.4th 434, 452.). While lewd conduct
generally involves sexually motivated touching of a child's
breasts, buttocks or external sexual organs, lewd conduct may
involve sexually motivated touching of any part of the body with
sexual intent. (Ibid.) Defined sex crimes (rape, oral
copulation, etc.) may also be charged as lewd conduct. (People
v. Pearson (1986) 42 Cal.3d 351.)
<11> The majority of cases hold that the element of "force" is
shown by force that allowed the defendant to accomplish the act
without the child's consent. (See People v. Neel (1993) 19
Cal.App.4th 1784.) With respect to duress, direct or implied
threat of force, violence, danger, hardship or retribution
sufficient to allow commission of the act. The jury shall
consider all of the circumstances in determining whether duress
was proved, including the age of the victim and his or her
relationship to the defendant. (See People v. Pitmon (1985) 170
Cal.App.3d 38, 47-51.)
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unlawful bodily injury on the victim or another person, with the
intent described above is guilty of a felony and shall be
punished by imprisonment in the state prison for three, six, or
eight years. (Penal Code 288(b)(2).)
This bill would increase this penalty to six, nine or eleven
years.
Oral Copulation
Current law provides specified penalties for oral
copulation,<12> including the following:
Except as provided,<13> any person who participates in
an act of oral copulation with another person who is under
18 years of age shall be punished by imprisonment in the
state prison, or in a county jail for a period of not more
than one year.
Except as provided, any person over the age of 21 years
who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.
Any person who participates in an act of oral copulation
with another person who is under 14 years of age and more
than 10 years younger than he or she shall be punished by
imprisonment in the state prison for three, six, or eight
years.
Any person who commits an act of oral copulation when
the act is accomplished against the victim's will by means
of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person
shall be punished by imprisonment in the state prison for
three, six, or eight years.
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<12> Oral copulation is defined as "the act of copulating the
mouth of one person with the sexual organ or anus of another
person." (Penal Code 288a(a).)
<13> The exception noted in these penalties is lewd and
lascivious conduct under Penal Code section 288, a felony.
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This bill would add the following penalty provisions to this
subdivision:
Any person who commits an act of oral copulation upon a
person who is under 14 years of age, when the act is
accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person, shall be
punished by imprisonment in the state prison for 6, 12, or
16 years.
Any person who commits an act of oral copulation upon a
minor who is 14 years of age or older, when the act is
accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person, shall be
punished by imprisonment in the state prison for 6, 9, or
11 years.
This bill would provide that these provisions do not preclude
prosecution under any other provision of law.
Current law provides that any person who, while voluntarily
acting in concert with another person, either personally or by
aiding and abetting that other person, commits an act of oral
copulation (1) when the act is accomplished against the victim's
will by means of force or fear of immediate and unlawful bodily
injury on the victim or another person, or (2) 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, or (3) where the victim is at the time
incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known
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or reasonably should be known to the person committing the act,
shall be punished by imprisonment in the state prison for five,
seven, or nine years, as specified. (Penal Code 288a(d).)
This bill would add the following penalty provisions to this
subdivision:
Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting
that other person, commits an act of oral copulation upon a
victim who is under 14 years of age, when the act is
accomplished against the victim's will by means of force or
fear of immediate and unlawful bodily injury on the victim
or another person, shall be punished by imprisonment in the
state prison for 7, 13, or 17 years.
Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting
that other person, commits an act of oral copulation upon a
victim who is a minor 14 years of age or older, when the
act is accomplished against the victim's will by means of
force or fear of immediate and unlawful bodily injury on
the victim or another person, shall be punished by
imprisonment in the state prison for 7, 10, or 12 years.
This bill would provide that this paragraph would not preclude
prosecution under any other provision of law.
Sexual Penetration
Current law provides that any person who commits an act of
sexual penetration when the act is accomplished against the
victim's will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or
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another person shall be punished by imprisonment in the state
prison for three, six, or eight years. (Penal Code 289(a).)
This bill would add the following penalty provisions to this
subdivision:
Any person who commits an act of sexual penetration upon
a child who is under 14 years of age, when the act is
accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person, shall be
punished by imprisonment in the state prison for 6, 12, or
16 years.
Any person who commits an act of sexual penetration upon
a minor who is 14 years of age or older, when the act is
accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person, shall be
punished by imprisonment in the state prison for 6, 9, or
11 years.
This bill would provide that these provisions would not preclude
prosecution under any other provision of law.
Life Term Sentences Laws for Sex Crimes
Existing law provides that "aggravated kidnapping" - kidnapping
for robbery, rape or spousal rape, oral copulation, sexual
penetration or sodomy, where the movement of the victim
substantially increased the risk of harm beyond that inherent in
the underlying offense - is punishable by imprisonment in the
state prison for life with the possibility of parole. (People
v. Martinez (2000) 20 Cal.4th 225; Pen. Code 209, subd. (b).)
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Existing law , known as the "habitual sexual offender law,"
provides that a person previously convicted of specified sex
crimes<14> or convicted of the kidnapping of a child for lewd
conduct who is convicted in the current case of one of those
offenses shall be sentenced to a term of 25 years-to-life on
each count of conviction. (Pen. Code 667.71.)<15>
Existing law provides that where the defendant commits a
specified sex crime by force, coercion or credible future
threats against a victim who is under 14 years of age, and where
the defendant is more than 7 years older than the victim, the
defendant is guilty of aggravated sexual assault of a child and
shall be imprisoned for a term of 15 years to life. Consecutive
sentences must be imposed for each count of conviction if the
crimes involved separate victims or the same victim on separate
occasions. (Pen. Code 269.)
Existing law provides that any adult who engages in sexual
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<14> The crimes eligible for this punishment are rape by force,
duress (including power of office), or threats to retaliate;
rape or sexual penetration in concert; lewd conduct with a child
under 14; sexual penetration by force, duress (including power
of office), or threats to retaliate; continuous sexual abuse of
a child; sodomy by force, duress, threats of future harm, or
based on the age difference between the victim (under 14 years
of age) and the perpetrator, or in concert; oral copulation by
force, duress, threats of future harm, or based on the age
difference between victim (under 14 years) and the perpetrator,
or in concert, or where victim is unable to consent, as
specified; kidnapping a child under 14 for lewd conduct by
seduction, misrepresentation, et cetera; kidnapping for sex
crimes; aggravated kidnapping for purposes of specified sex
crimes; aggravated sexual abuse of a child.
<15> The prior crimes subjecting a person to habitual sexual
offender penalties constitute prior "strikes" for purposes of
the Three Strikes law. The interaction of the two laws, as well
as the one-strike law, can produce sentences of well over 100
years. (People v. Murphy (2001) 25 Cal.4th 136 - 160 years to
life for two counts of non-forced lewd conduct where defendant
had two prior similar convictions.)
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intercourse or sodomy with a child who is 10 years of age or
younger is guilty of a felony and shall be imprisoned for a term
of 25-years-to-life. Where the defendant engages in sexual
penetration or oral copulation with such a child, the term shall
be 15-years-to-life. (Pen. Code 288.7.)
Existing law - the Three Strikes law - provides that where the
defendant has been previously convicted of a serious felony, the
defendant's sentence in the current case for any felony shall be
doubled. Where the defendant has been previously convicted of
two or more serious felonies, the current sentence for any
felony must be a term of at least 25 years-to-life. Most sex
offenses are serious felonies, and are prior qualifying offenses
under the Three Strikes law. (Pen. Code 667. subds. (b)-(i)
and 1170.12.)
Existing law , known as the "one strike sex crime" law, generally
provides sentences of 15 or 25 years-to-life for certain sex
crimes if specified circumstances in aggravation are found to be
true. (Pen. Code 667.61.)
Existing law enumerates the following sex offenses as eligible,
depending upon the aggravating circumstances described below,
for punishment under the "one-strike" sex law: rape and spousal
rape by force, coercion or threats of future harm; forced or
coerced sexual penetration; sodomy by force, coercion or threats
of future harm; oral copulation by force, coercion or threats of
future harm; specified sex crimes in concert; and lewd and
lascivious acts with a child under the age of 14 and continuous
sexual abuse of a child, as defined. (Pen. Code 667.61, subd.
(c).)
Existing law provides that if one or more of the following
enumerated aggravating factors is found to be present, the sex
offense is punishable by a term of 25 years-to-life:
Defendant was previously convicted of one of the
qualifying sex offenses;
Defendant kidnapped the victim substantially increasing
the risk of harm;
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Defendant inflicted aggravated mayhem or torture;
The crime involved residential burglary with the intent
to commit a sex offense; or
The crime was committed in concert, as specified.
(Penal Code 667.61(d).)
Existing law provides if one of the following enumerated
aggravating factors is found to be present, the qualifying
sex offense is punishable by a term of 15 years-to-life; and,
if two or more of these factors are found, the qualifying sex
offense is punishable by a term of 25 years-to-life:
Defendant kidnapped the victim, as specified;
Defendant personally used a dangerous or deadly
weapon;
Defendant inflicted great bodily injury;
The victim was tied or bound;
The crime involved more than one victim;
The defendant administered a controlled substance by
force, violence or fear;
The crime occurred during a burglary; or
The crime was committed in concert, as specified.
(Penal Code 667.61(e).)
This Bill: Proposed Changes to One-Strike Sex Crime Law
This bill would make the following changes to the "one strike"
sex crime statute described above:
Under current law , a defendant who commits one of the qualifying
life-term sex offenses and "personally inflicted great bodily
injury on the victim or another person in the commission of the
present offense in violation of Section 12022.53, 12022.7, or
12022.8,"<16> is subject to 15-to-life if that is the single
aggravating circumstance, or 25-to-life if it is one of two or
more aggravating factors. (Penal Code 667.61(e)(3)(emphasis
---------------------------
<16> These cross-references sections impose sentence
enhancements generally relating to use of a firearm and
infliction of great bodily injury.
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added).)
This bill would make this single aggravating circumstance
subject to 25-life.
This bill additionally would add the following life terms to
these provisions:
Life without the possibility of parole for any person 18
years of age or older who is convicted of an eligible
offense against a child under 14 years old under the
following circumstances:
(1) one or more of the "one circumstance" aggravating
factors described above apply; or
(2) the defendant, in the commission of the offense,
inflicted "bodily harm," as described by this bill, on the
victim; or
3) two or more of the "two circumstance" aggravating
factors described above apply, as specified. (proposed (j)(1).)
25-to-life: Same as above, but the defendant is under
18 years of age. (proposed (j)(2).)
25-to-life: for any person convicted of an eligible
offense under one of the "two circumstance" factors
described above against a child under 14 years of age.
(proposed (j)(3).)
Life without the possibility of parole for any person
convicted of an eligible offense upon a child under 14
years of age who, in the commission of the offense,
inflicted "bodily harm" upon the victim. (proposed (k).)
Life without the possibility of parole for any person
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convicted of an enumerated forcible sex offense<17> against
a minor 14 years of age or older under the following
circumstances:
(1) one or more of the "one circumstance" aggravating
factors described above, or (2)
two or more of the "two circumstance" aggravating factors
described above.
(proposed (l).)
25-to-life for any person convicted of a forcible sex
offense<18> under one of the "two circumstance" factors
described above against a minor 14 years of age or older.
(proposed (m).)
This bill would describe "bodily harm" to mean "any substantial
physical injury resulting from the use of force that is more
than the force necessary to commit" on of the offenses eligible
for a life term under this section.
PROVISIONS LIMITING THE MOVEMENTS OF PERSONS
REQUIRED TO REGISTER AS SEX OFFENDERS
Existing law generally proscribes and makes illegal contact or
--------------------------
<17> The enumerated forcible sex offenses are: (1) Rape, in
violation of paragraph (2) of subdivision (a) of Section 261.
(2) Spousal rape, in violation of paragraph (1) of subdivision
(a) of Section 262. (3) Rape, spousal rape, or sexual
penetration, in concert, in violation of Section 264.1. (4)
Sexual penetration, in violation of paragraph (1) of subdivision
(a) of Section 289. (5) Sodomy, in violation of paragraph (2) of
subdivision (c) of Section 286, or in violation of subdivision
(d) of Section 286. (6) Oral copulation, in violation of
paragraph (2) of subdivision (c) of Section 288a, or in
violation of subdivision (d) of Section 288a.
<18> Id.
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attempted contact with a minor for a sexual purpose.<19>
Existing law provides that a person who is required to register
as a sex offender who comes into any school building or upon any
school ground without lawful business thereon and written
permission from the chief administrative official of that
school, is guilty of a misdemeanor, as specified. (Penal Code
626.81.)
Existing law provides it "is unlawful for any person for whom
registration is required pursuant to the Sex Offender
Registration Act to reside within 2,000 feet of any public or
private school, or areas of a park where children regularly
gather." (Pen. Code 3003.5 (b).)
Existing law explicitly authorizes municipal jurisdictions to
enact local ordinances that further restrict the residency of
any person required to register as a sex offender. (Penal Code
3003.5(c).)
This bill would provide that any person who is required to
register as a sex offender for a felony offense, "who enters any
park where children regularly gather without written permission,
is guilty of a misdemeanor:
---------------------------
<19> A person who contacts or communicates with a minor for
the purpose of committing a specified sex crime is guilty of a
felony, punishable by the prison terms prescribed for the sex
crime the person intended to commit. (Pen. Code 288.3.) A
person who has an unnatural sexual interest in children who
arranges a meeting with a minor, or a person the defendant
believes is a minor, for purposes of engaging in sexual
activity is guilty of a misdemeanor. If the defendant has
been previously convicted of a crime for which sex offender
registration is required, the defendant is guilty of a felony.
If the defendant goes to the arranged meeting place, the
crime is a felony, punishable by imprisonment in state prison
for two, three of four years. (Pen. Code 288.4.) An adult
stranger 21 years of age or older who knowingly contacts or
communicates with a minor 12 years of age or younger, who knew
or should have known that the minor is 12 years of age or
younger, for the purpose of persuading, transporting, or
luring the minor away from his or her home or known location,
without consent, is guilty of either an infraction or a
misdemeanor. (Pen. Code 272, subd. (b)(1).)
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(1) If the person is on parole, written permission
shall be obtained from the person's parole officer.
(2) If the person is not on parole, written permission shall
be obtained from the chief administrative official of the
park.
This bill would provide for the following punishments for a
violation of this provision:
(1) First conviction: county jail not exceeding six months,
fine not exceeding $500, or both.
(2) Second conviction: county jail for not less than 10
days and not more than 6 months, and a possible fine not
exceeding $500. A defendant sentenced pursuant to this
paragraph shall not be released on probation, parole, or
any other basis, until he or she has served at least 10
days imprisonment in a county jail.
(3) Third or subsequent conviction: jail for a period of not
less than 90 days and not more than 6 months and a fine not
exceeding $500. A defendant sentenced pursuant to this
paragraph shall not be released on probation, parole, or
any other basis, until he or she has served at least 90
days imprisonment in a county jail.
This bill would provide that this section would not preclude or
prohibit prosecution under any other provision of law.
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PAROLE SUPERVISION PROVISIONS
FOR SEX OFFENDERS
Current law creates in state government the Department of
Corrections and Rehabilitation ("CDCR"), headed by a secretary
who is appointed by the Governor, subject to Senate
confirmation, and serves at the pleasure of the Governor. CDCR
consists of Adult Operations, Adult Programs, Juvenile Justice,
the Corrections Standards Authority, the Board of Parole
Hearings, the State Commission on Juvenile Justice, the Prison
Industry Authority, and the Prison Industry Board. (Government
Code 12838 (a).)
Current law provides that "the supervision, management and
control of the state prisons, and the responsibility for the
care, custody, treatment, training, discipline and employment of
persons
confined therein are vested in the Secretary of the Department
of Corrections and Rehabilitation." (Penal Code 5054.)
Current law generally provides that inmates serving a
determinate term of imprisonment shall be released on parole for
a period of three years.<20> (Penal Code 3000 (b)(1).)
Current law provides that any inmate sentenced for a violent sex
---------------------------
<20> Sex offenders who have served a determinate term of
imprisonment are released on parole for a period of five years.
Specified sex offenders serving indeterminate (life) terms are
released on parole for a period of 10 years. (Penal Code
3000, subd. (b)(1) and (3).)
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offense, as specified,<21> shall be released on parole for a
period not exceeding five years, unless in either case the
parole authority for good cause waives parole and discharges the
inmate from the custody of the department. (Penal Code
3000(b)(2).)
This bill would increase this period from five to ten years
unless a longer parole period applied, and would eliminate the
authority of the parole authority to waive or discharge the
inmate, as specified.
Current law provides that in the case of any offense for which
the inmate has received a life sentence pursuant to the "one
strike sex crime" or "habitual sex offender" statutes described
above (Penal Code section 667.61 or 667.71), the period of
parole shall be 10 years. (Penal Code 3000(b)(3).)
This bill would expand this provision to also apply to
kidnapping (Penal Code section 209(b)) if that offense was
committed with the intent to commit a specified sexual offense,
and exempt its application if a longer parole period is
provided, as specified.
Current law requires that in the case of any inmate sentenced
under Section 1168 for any offense of first or second degree
murder with a maximum term of life imprisonment, the period of
parole, if parole is granted, shall be the remainder of the
inmate's life. (Penal Code 3000.1.)
This bill would expand this provision to require lifetime
parole, if parole is granted, in the following circumstances:
For any inmate sentenced under 288(a) or (b)(1) (lewd
and lascivious acts on a child under the age of 14 years
and lewd and lascivious acts on a child under the age of 14
--------------------------
<21> The enumerated offenses are forcible rape, sodomy, oral
copulation, lewd or lascivious acts under Penal Code section
288, sexual penetration, continuous sexual abuse of a child, and
in concert rape, as specified in Penal Code section 667.5(c)(3),
(4), (5), (6), (11), (16), and (18).
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by means of force, or duress), Section 288.5 (continuous
sexual abuse of a child), or Section 288.7 (life term
specified sex crimes against a child ten years or younger),
the period of parole, if parole is granted, shall be the
remainder of the inmate's life.
For any inmate sentenced under the habitual sexual
offender law (Penal Code section 667.71) in which one or
more of the victims of the offense was a child under 14
years of age, the period of parole, if parole is granted,
shall be the remainder of the inmate's life.
For any inmate sentenced under Section 269 (life term
aggravated sexual assault of a victim under 14), section
667.51(c) (life term child molestation crimes for repeat
offenders) with a maximum term of life imprisonment,
paragraph (2) of subdivision (j) of Section 667.61 (a life
term proposed by this bill), or subdivision (m) of Section
667.61 (a life term proposed by this bill), the period of
parole, if parole is granted, shall be the remainder of the
inmate's life.
For any inmate sentenced under specified sex crimes<22>
in which one or more of the victims of the offense was a
child under 14 years of age, the period of parole, if
parole is granted, shall be the remainder of the inmate's
life.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
---------------------------
<22> The specified offenses are those defined in Section 261
(rape), 262 (spousal rape) , 264.1 (foreign object rape), 286
(sodomy), 288a (oral copulation), or 289 (sexual penetration).
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The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
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laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<23>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill would appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
---------------------------
<23> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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1. Stated Need for This Bill
The author states:
While there are seemingly tough laws on the books for
sex offenders, current California law does not
acknowledge or adjust for the true nature of the
sexual violent predator that attacks children.
Chelsea's law isolates this uniquely dangerous
predator and takes disciplined steps to keep them away
from our communities in a variety of ways.
Beginning with Sentencing,
Our office believes that those have committed the most
serious and heinous sex crimes against children are
not able to be rehabilitated. Which is why under our
proposal, those who commit these crimes against
children will be locked up for life without the
possibility of parole.
This will ensure that victims do not have to live in
terror that their attacker will be freed one day, and
potential victims will not be needlessly harmed by
those who we know to be extremely dangerous.
Also under our proposal those offenders who have
committed a forcible sex crime against a child,
signaling an appetite to prey on children, will be
locked up for much longer than in current law. In
most cases twice as long.
We believe this is an important change because there
currently is no distinction between forcible and
non-forcible sex crimes on a child. A forcible sex
crime, such as forcible child molestation, involves
"violence, duress, menace, or fear of immediate and
unlawful bodily injury". And while all sex crimes are
awful, these crimes are a red flag that the
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perpetrator is capable of much, much worse. The
legislature should acknowledges that.
This is why under Chelsea's Law these offenders will
serve a lifetime on parole if released, including
effective GPS monitoring of their whereabouts.
Chelsea's Law will also create "safe zones".
Specifically, it will now be a misdemeanor for a
felony sex offender to loiter in parks where children
congregate - where they could otherwise wait and
target new victims.
Testimony from corrections officials has stated that
the combination of these safe zones with GPS
monitoring will allow law enforcement officials to be
immediately notified if the most dangerous sex
offenders have entered a park covered under our law.
And steps can be taken to remove them.
We believe this combination of increased sentencing,
enhanced oversight, and the creation of safe zones
will provide increased safety for children and comfort
for parents.
AB 1844 ensures that those who commit a crime of this
nature are effectively kept from engaging in even more
atrocious crimes upon release, and that those who
commit the worst violent sex crimes against children
are put away for life.
2. What This Bill Would Do
As explained in detail above, this bill would change a number of
laws relating to sex crimes and sex offenders. Those changes
fall into the following three general categories:
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AB 1844 (Fletcher)
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Sentence increases, with respect to both determinate and
indeterminate sentences;
Enactment of a new misdemeanor prohibiting felony sex
offender registrants from entering a park where children
regularly gather, as specified; and
Increased parole periods for specified sex offenders,
including up to lifetime parole, as specified.
3. Sentences for Sex Crimes
California law currently provides a complex structure of
determinate sentence punishments for sex crimes. This bill
generally would increase those sentences for sex crimes against
minors.
The following chart summarizes the determinate sentence
increases this bill proposes:
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---------------------------------------------------------------
| SUBJECT | CURRENT | PROPOSED PENALTY |
| | PENALTY | UNDER AB 1844 |
| | | |
|-----------------------+-------------+-------------------------|
| Triad Sentence | | |
| Increases | | |
|-----------------------+-------------+-------------------------|
|PC 220: |2/4/6 |5/7/9 if victim under 18 |
|Assault with intent to | | |
|commit mayhem or | | |
|specified sex offenses | | |
|-----------------------+-------------+-------------------------|
|PC 264: |3/6/8 |6/12/16 for forcible |
|Forcible rape ( 261, | |rape of minor under 14 |
|262) | |6/9/11 for forcible rape |
| | |of minor 14 or older |
|-----------------------+-------------+-------------------------|
|PC 264.1: |5/7/9 |7/13/17 if victim under |
|Aiding and abetting | |14; |
|rape | |7/10/12 if minor victim |
| | |14 or older |
|-----------------------+-------------+-------------------------|
|PC 286: |3/6/8 |6/12/16 (forcible) if |
|Sodomy |(forcible) |victim under 14; |
| | |6/9/11 (forcible) if |
| | |minor victim 14 or |
| | |older; |
| |5/7/9 |7/13/17 (forcible |
| |(forcible |aiding/abetting) victim |
| |aiding/abetti|under 14; |
| |ng) |7/10/12 (forcible |
| | |aiding/abetting) minor |
| | |victim 14 or older |
| | | |
|-----------------------+-------------+-------------------------|
|PC 288: lewd or |3/6/8 |6/12/16 |
|lascivious act on |(forcible | |
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|child under 14 |(a)(b)(1).) |6/9/11 (caretaker upon a |
| |3/6/8 |dependent) |
| |(forcible | |
| |(a)(b)(2) | |
|-----------------------+-------------+-------------------------|
|PC 288a: |3/6/8 |6/12/16 (forcible) if |
|Oral copulation |(forcible) |victim under 14; |
| | |6/9/11 (forcible) if |
| | |minor victim 14 or |
| | |older; |
| | |7/13/17 (forcible |
| | |aiding/abetting) victim |
| | |under 14; |
| | |7/10/12 (forcible |
| | |aiding/abetting) minor |
| | |victim 14 or older |
| | | |
| | | |
|-----------------------+-------------+-------------------------|
|PC 289: |3/6/8 |6/12/16 (forcible) if |
|Sexual Penetration | |victim under 14; |
| | |6/9/11 (forcible) if |
| | |minor victim 14 or older |
---------------------------------------------------------------
The following chart summarizes the indeterminate sentence
increases this bill proposes:
----------------------------------------------------------
| SUBJECT | CURRENT | AB 1844 |
| | PENALTY | |
|-----------+---------------+------------------------------|
| "One | | |
| Strike" | | |
|Sex Crime | | |
| (PC | | |
| 667.61) | | |
| | | |
|-----------+---------------+------------------------------|
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| |25-life for |* Expands existing 25-life |
| |specified sex |sentence 1-circumstance to |
| |crimes<24> |include where the defendant |
| |under either 1 |committed one of the |
| |or more |qualifying sex crimes and |
| |specified |personally inflicted great |
| |circumstances,"|bodily injury on the victim |
---------------------------
<24> PC 667.61(c) predicate offenses: (1) Rape, in violation of
paragraph (2) or (6) of subdivision (a) of Section 261. (2)
Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262. (3) Rape, spousal rape, or
sexual penetration, in concert, in violation of Section 264.1.
(4) Lewd or lascivious act, in violation of subdivision (b) of
Section 288. (5) Sexual penetration, in violation of subdivision
(a) of Section 289. (6) Sodomy, in violation of paragraph (2) or
(3) of subdivision (c), or subdivision (d), of Section 286. (7)
Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a. (8) Lewd
or lascivious act, in violation of subdivision (a) of Section
288. (9) Continuous sexual abuse of a child, in violation of
Section 288.5.
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| |<25> or |or another person while |
| |2 or more |personally using a firearm, |
| |specified |or commission of specified |
| |circumstances<2|sex crimes (PC |
---------------------------
<25> PC 667.61(d): 25-to-life if one or more of the following
apply: (1) The defendant has been previously convicted of an
offense specified in subdivision (c), including an offense
committed in another jurisdiction that includes all of the
elements of an offense specified in subdivision (c). (2) The
defendant kidnapped the victim of the present offense and the
movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily
inherent in the underlying offense in subdivision (c). (3) The
defendant inflicted aggravated mayhem or torture on the victim
or another person in the commission of the present offense in
violation of Section 205 or 206. (4) The defendant committed
the present offense during the commission of a burglary of the
first degree, as defined in subdivision (a) of Section 460, with
intent to commit an offense specified in subdivision (c). (5)
The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision
(d) of Section 288a, and, in the commission of that offense, any
person committed any act described in paragraph (2), (3), or (4)
of this subdivision.
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| |6> ; |667.61(e)(3)now requires a |
| |15-life for 1 |2nd circumstance for 25-life) |
| |of (e), | |
| |25-life for 2 | |
| |of (e) | |
|-----------+---------------+------------------------------|
| SUBJECT | CURRENT |AB |
| Life Term | PENALTY |1844 |
| Offenses | (see above) | |
|(continued)| | |
| | | |
|-----------+---------------+------------------------------|
| | |* LWOP for any person 18 |
| | |years or older convicted of |
| | |qualifying sex crime meeting |
| | |the 1 or more, or 2 or more |
| | |specified circumstance |
| | |triggers, whose victim is |
| | |under 14. (j)(1) |
---------------------------
<26> PC 667.61(e): one or more of the following is 15-to-
life; two or more is 25-to-life: (1) Except as provided in
paragraph (2) of subdivision (d), the defendant kidnapped the
victim of the present offense in violation of Section 207, 209,
or 209.5. (2) Except as provided in paragraph (4) of subdivision
(d), the defendant committed the present offense during the
commission of a burglary in violation of Section 459. (3) The
defendant personally inflicted great bodily injury on the victim
or another person in the commission of the present offense in
violation of Section 12022.53, 12022.7, or 12022.8. (4) The
defendant personally used a dangerous or deadly weapon or a
firearm in the commission of the present offense in violation of
Section 12022, 12022.3, 12022.5, or 12022.53. (5) The defendant
has been convicted in the present case or cases of committing an
offense specified in subdivision (c) against more than one
victim. (6) The defendant engaged in the tying or binding of
the victim or another person in the commission of the present
offense. (7) The defendant administered a controlled substance
to the victim in the commission of the present offense in
violation of Section 12022.75. (8) The defendant committed the
present offense in violation of Section 264.1, subdivision (d)
of Section 286, or subdivision (d) of Section 288a, and, in the
commission of that offense, any person committed any act
described in paragraph (1), (2), (3), (4), (6), or (7) of this
subdivision.
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| | |* LWOP for qualifying sex |
| | |crime against victim under 14 |
| | |where, in the commission of |
| | |the offense, person inflicted |
| | |bodily harm upon the victim. |
| | |(j)(1) |
| | |* LWOP for forcible rape, |
| | |spousal rape, in concert |
| | |rape, foreign object rape, |
| | |sodomy or oral copulation, |
| | |under the 1 or more, or 2 or |
| | |more specified circumstances, |
| | |victim |
| | |14-17. (e) |
| | |* 25-life for person under |
| | |18 convicted of qualifying |
| | |sex crime meeting the |
| | |standard circumstances, or |
| | |inflicts bodily harm, whose |
| | |victim is under 14. (j)(2) |
| | | * 25-life for qualifying |
| | |sex crime with one of the "2 |
| | |or more" circumstances upon a |
| | |victim under 14 years.(j)(3) |
| | |* 25-life for forcible rape, |
| | |spousal rape, in concert |
| | |rape, foreign object rape, |
| | |sodomy or oral copulation, |
| | |with 1 or more of the "2 or |
| | |more" circumstance where |
| | |victim is 14 or over. (m) |
| | |* Definition: "bodily harm" |
| | |means any substantial |
| | |physical injury resulting |
| | |from the use of force that is |
| | |more than the force necessary |
| | |to commit the predicate sex |
| | |offenses for these penalties. |
| | | |
----------------------------------------------------------
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Supporters of this bill submit that these penalty increases will
improve public safety with respect to sex offenders. The San
Diego County District Attorney states in part:
AB 1844 will isolate these particularly harmful
predators and prevent them from inevitable additional
violence. . . . (This bill) will force us to more
effectively prioritize the way we incarcerate and
monitor criminals, particularly sex offenders. We
must change the way we deal with these offenders.
Unlike other criminals, in many cases, sex offenders
cannot be rehabilitated. Chelsea's Law will make sure
these are the offenders that will be housed in prison
until they die. . . .
Opponents, such as the American Civil Liberties Union, argue
that "current law imposes stiff criminal penalties for the
crimes referenced in this legislation. The additional sentence
increases will exacerbate the already severe overcrowding of our
state prison system and impose an enormous additional fiscal
cost to the state."
As members consider the sentence increases proposed by this
bill, it may be useful to consider these sentencing issues in
the context of California's sentencing laws generally. The
expansion and development of California's Determinate Sentencing
Law since its enactment in 1976 has been continuous. Some legal
scholars and others have severely criticized California's
determinate sentencing laws.
Criminal sentencing in California is without a
coherent penal theory, which is in part a result of
multiple layers of criminal sentencing that have
come about over almost thirty years of legislative
changes to sentencing laws.
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. . .
The numerous "drive by" sentencing laws have eroded
whatever coherence was achieved in 1976. That is,
when the media have reported particularly heinous
crimes or trends in criminal behavior, the
Legislature has often enacted enhancement
provisions. Multiple enhancement statutes erode the
principle articulated in Penal Code Section 1170.
From 1984 to 1991, over 1,000 crime bills passed.
Virtually none of them reduced sentences and many of
them imposed sentence enhancements. Often, the
crime bill was a reaction to the "crime of the
month," a crime that was hyped in the media. For
example, in 1987 the Legislature enhanced an
offender's sentence for a murder that occurs when
the shooter is inside a car. Other legislation has
enhanced sentences for a variety of crimes committed
against certain classes of victims or committed
under specific circumstances.<27>
California courts have been no less disapproving of California's
sentencing laws, referring to them in various published opinions
as "labyrinthine procedures,"<28> "mind-numbing
---------------------------
---------------------------
<27> Vitiello and Kelso, A Proposal for a Wholesale Reform of
California's Sentencing Practice and Policy (38 Loy. L.A. Lev.
903 (2004) at 917; 920-921 (citations omitted).
<28> "Justice Gardner also aptly noted: 'As a sentencing judge
wends his way through the labyrinthine procedures of Section
1170 of the Penal Code, he must wonder, as he utters some of its
more esoteric incantations, if, perchance, the Legislature had
not exhumed some long, departed Byzantine scholar to create its
seemingly endless and convoluted complexities. Indeed, in some
ways it resembles the best offerings of those who author
bureaucratic memoranda, income tax forms, insurance policies or
instructions for the assembly of packaged toys.'" Community
Release Bd. v. Superior Court (1979) 91 Cal.App.3d 814, 815, fn.
1 [154 Cal.Rptr. 383].)
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complicated,"<29> and a "a legislative monstrosity, which is
bewildering in its complexity."<30> Similarly, in 1991 the
California District Attorneys Association sponsored a bill "to
reform, simplify, and revamp California's sentencing law." As
explained in the Senate Judiciary Committee analysis of that
bill:
Existing law contains over 30 possible
sentencing triads for felony offenses. The
sentencing formulas are complex, inconsistent
and confusing. A judge is often required to
complete a worksheet which can be more
complicated than an IRS form in order to
calculate the proper sentence. When
mathematical errors or other mistakes are made,
-------------------
<29> "As Presiding Justice Roth has so eloquently indicated:
'[S]entencing statutes are mind-numbing. complicated and, by
virtue of continued legislative tinkering, not likely to soon
become any easier to apply. As the trial judge in this case
remarked: 'I regard it as one of the principal credits to my
professional career that I had nothing to do with designing the
determinate sentencing law.' Such frustration is widely spread.
. . . [] The frequency with which both simple and vexatious
sentencing questions are raised on appeal strongly suggests that
the Legislature can and should undertake with the help of bench
and bar a solid comprehensive overhaul of the system to help all
potential defendants and the public generally.'" (People v.
Reyes (1989) 212 Cal.App.3d 852, 858-859 [260 Cal.Rptr. 846].)
<30> "When in 1976, the Legislature ended its 60-year-old romance
with the Indeterminate Sentence Law, few tears were shed at the
demise of that highly visionary, but woefully unsuccessful, effort
at effective penology. [] Alas, few hosannas have been heard in
the judicial system for its successor, the so-called determinate
sentence law, Penal Code Section 1170, et seq., a legislative
monstrosity, which is bewildering in its complexity. Superimposed
on Penal Code Section 1170 et seq. are the sentencing rules (Cal.
Rules of Court, rule 401 et seq.) promulgated under the aegis of
Penal Code Section 1170.3. Here, the already perplexing
provisions of Penal Code Section 1170 et seq. are further refined
into a kind of labyrinthine formalism under which trial judges
carefully pick their way in a kind of ceremonial ritual during the
sentencing processes. . . . Whether all of this results in any
uniformity of sentencing is doubtful. Tough judges still sentence
severely, easy judges leniently - all within the rules. One
result is crystal clear - sentencing today affords a rich field of
appellate litigation. . . . (People v. Sutton (1980) 113
Cal.App.3d 162, 164 [169 Cal.Rptr. 656].)
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the case is often reversed on appeal. . . .<31>
The Little Hoover Commission in January of 2007 published a
harsh rebuke of California's correctional system which included
California's sentencing laws:
Years of political posturing have taken a good
idea - determinate sentencing - and warped it
beyond recognition with a series of laws passed
with no thought to their cumulative impact. And
these laws stripped away incentives for
offenders to change or improve themselves while
incarcerated.<32>
The Committee may wish to examine the penalties proposed by this
bill with respect to whether, as a whole, they would enact a
proportionate sentencing scheme that would achieve the public
safety objectives of this bill. In its 2007 report, the Little
Hoover Commission highlighted the following goals for a majority
of states that have established sentencing commissions. Members
may wish to consider whether some of these goals - in
particular, those that inform the sentencing structure itself -
might equally apply to this Committee's consideration of the
sentence increases proposed by this bill:
---------------------------
<31> Senate Judiciary Committee analysis of SB 25 (Lockyer)
(1991). This measure was vetoed.
<32> Little Hoover Commission, Solving California's
Correctional Crisis: Time is Running Out (January 2007) at ii.
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? To improve public safety by preventing
the premature release of dangerous offenders.
? To make sentencing more uniform and
reduce disparity.
? To promote more rational policy
formation that is at least somewhat insulated
from political pressure.
? To develop data for informed resource
management decisions.<33>
WOULD THE SENTENCE INCREASES PROPOSED BY THIS BILL PREVENT THE
PREMATURE RELEASE OF DANGEROUS SEX OFFENDERS?
WOULD THE SENTENCE INCREASES PROPOSED BY THIS BILL MAKE
SENTENCING MORE UNIFORM AND REDUCE DISPARITY?
4. Prosecution of Sex Crimes
As illustrated in the Purpose section of this analysis,
California criminal law on sex crimes and their punishment is
complex. Successfully prosecuting a sex crime can be complex
and difficult as well.<34>
Evidentiary issues are considered by some to be the most salient
factor in plea negotiation processes and practices in sex crime
cases.<35> In plea bargaining, the prosecutor and the defense
attorney typically settle on the length of time, or a range of
time, that the defendant should spend in prison as punishment
for the crime or crimes committed. Plea bargains are subject to
approval by the trial court.
When sentences are raised by new laws, sentences imposed
pursuant to plea bargain also may rise. However, given the
---------------------------
<33> Id. at 38-40 (citations omitted).
<34> See A Research Report: Sex Offense Cases and Plea
Negotiation (Van Vleet and Rundquist), Criminal and Juvenile
Justice Consortium (Oct. 2002).
(http://www.justice.utah.gov/Research/SexOffender/Qualitative2002
.pdf.)
<35> Id. at 9-11.
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variable nature of evidence in some criminal cases it is
difficult to ensure, through statutory changes alone, that
particular sentence increases can and will be achieved in every
case. The Legislature has categorically urged that life terms
be sought whenever possible in the most egregious sex crime
cases. In 2006, the Legislature codified the following intent:
It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes
that provide sentencing under a "one strike," "three
strikes" or habitual sex offender statute instead of
engaging in plea bargaining over those offenses.<36>
In 2004 the United States Supreme Court in Crawford v.
Washington (2004) 541 U.S. 36 substantially limited the ability
of prosecutors to introduce statements made by victims and
witnesses to the police in cases where the victim or witness
does not testify at trial. The Court held that the
Confrontation clause of the United States Constitution (Sixth
Amendment) requires that a defendant have the opportunity to
cross-examine a witness before "testimonial" statements are
admitted against the defendant at trial. Testimonial statements
are essentially statements made or taken in contemplation of
prosecution.
In some sex crime cases, victims may be reluctant to testify.
In cases involving children, prosecutor may face difficulty in
presenting clear and understandable testimony by the victim.
Many if not a majority of sex crimes against children involve
relatives or persons close to the family. The child may face
---------------------------
<36> (Penal Code 1192.7(a)(1). That year, the Legislature
also prohibited plea bargaining in specified sex crime cases
"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. At the time of presenting the agreement to
the court, the district attorney shall state on the record why a
sentence under one of those sections was not sought." (Penal
Code 1192.7(a)(3).
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family pressure to recant or not testify. Regardless of the
available sentence, these kinds of evidentiary circumstances may
make a case particularly difficult to take to trial. With the
decision in Crawford limiting the ability of prosecutor's to
admit hearsay statements by the victim, plea negotiations due to
evidentiary issues may be particularly critical.
Members may wish to consider the extent to which evidentiary
issues affect the prosecution of these cases, and the ability of
prosecutors to achieve the severe prison sentences provided
under current law and proposed by this bill.
TO WHAT EXTENT WOULD THE INCREASED SENTENCES PROPOSED BY THIS
BILL AFFECT THE PROSECUTION OF SEX CRIMES?
HOW WOULD THESE INCREASED SENTENCES PROPOSED BY THIS BILL AFFECT
PLEA BARGAINING IN SEX CRIME CASES?
BECAUSE EVIDENTIARY ISSUES IN SOME SEX CRIME CASES ALWAYS MAY
POSE DIFFICULTIES IN TAKING CASES TO TRIAL WHEN LONG PRISON
TERMS ARE SOUGHT, WHAT WOULD BE THE LIKELY EFFECT OF THE
SENTENCE INCREASES PROPOSED BY THIS BILL?
Members also may wish to consider a possible unintended effect
of the increased sentences proposed by this bill on the
prosecution of intra-familial molestation cases. The
complexities of prosecuting these cases was described in a 1987
case discussing whether probation should be allowed in certain
sex crime cases. While probation is not an issue presented by
this bill, the court's discussion, recited below, may be useful
as members consider the determinate and life-term sentences
proposed by this bill. The court in People v. Groomes (1993) 14
Cal.App.4th 84 quoted and paraphrased the court in People v.
Jeffers (1987) 43 Cal.3d 984, as to policy debate about the
possibility of probation for defendants convicted of
intra-family lewd conduct:
Section 1203.066 was enacted in 1981 upon passage of
the Roberti-Imbrecht-Rains-Goggin Child Sexual Abuse
Prevention Act (Stats. 1981, ch. 1064, 1-6, pp.
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4093-4096). In People v. Jeffers (1987) 43 Cal.3d 984,
the Supreme Court examined and extensively discussed
the act's legislative history. The court referred to
testimony before the Joint Committee for Revision of
the Penal Code (1979-1980 Reg. Sess.) (hereafter Joint
Committee) on the subject of child sexual abuse. The
court noted that several witnesses distinguished
pedophile offenders from those characterized as
intra-familial regressive offenders. (See People v.
Jeffers, supra, at pp. 993-996.) The Joint Committee
was told that attempts at rehabilitating pedophile
offenders had not been successful, and mandatory prison
terms were needed. On the other hand, attempts at
rehabilitating regressive offenders, incestuous or
intra-family offenders, had been successful. In
addition to successful rehabilitation programs, there
were other reasons why mandatory prison terms for
regressive offenders are not desirable. Witnesses and
victims were less likely to testify against close
family members or household members and risk
destruction of the family unit .
As the court in Jeffers recognized: " If an intra-family
molester is imprisoned there could be a loss of
financial support for the family, the victim could be
blamed by other family members, and the victim's mother
might abandon the victim in favor of the molester . If a
prison sentence is mandatory, there could also be a
reluctance of prosecuting authorities to file charges,
knowing the consequences for the family. The
authorities might prefer to treat the problem as a
juvenile or family law matter rather than as a criminal
matter, even though criminal prosecution, without a
mandatory prison term, would be preferable. [Citation.]
Effective rehabilitation is more difficult in prison
because the other family members cannot participate. (at
pp. 60-61.)" (People v. Jeffers, supra, 43 Cal.3d at p.
995, fn. omitted, underlining added.)
WOULD THE PENALTIES PROPOSED BY THIS BILL AFFECT THE PROSECUTION
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AB 1844 (Fletcher)
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OF INTRA-FAMILIAL CHILD MOLESTATION?
COULD THIS BILL INADVERTENTLY DETER THE REPORTING OF CHILD
SEXUAL ABUSE CRIMES WITHIN FAMILIES?
WOULD THE PENALTIES PROPOSED BY THIS BILL IMPROVE PUBLIC SAFETY
WITH RESPECT TO INTRA-FAMILIAL CHILD MOLESTATION CRIMES?
The one-strike sex crime law was enacted shortly after enactment
of the Three Strikes law in 1994.<37> The Sexually Violent
Predators Act (which allows civil commitment of sex offenders
deemed too dangerous to be allowed into society upon release
from prison) was enacted in 1995.<38> Many legislators, policy
analysts, prosecutors and others believed that the one-strike
law would eventually limit the necessity for the SVP law, as
particularly dangerous offenders would be committed to prison
for life under one-strike, not committed to prison for
determinate terms and then evaluated for civil commitment under
the SVP Act.<39> However, it appears that may not be the case.
According to a February 2004 analysis by Department of Mental
Health, "602 sex offenders were admitted as one-strike inmates
during the last seven years of the [Sexually Violent Predators
---------------------------
<37> SBx1 26 (Bergeson)(Ch. 14, Stats. 1994).
<38> AB 888 (Rogan)(Ch. 763, Stats. 1995).
<39> "(T)he problem of lack of control over sexual offenders
may have been lessened by enactment of . . . (recent measures
increasing penalties for sex crimes), which will result in life
sentences or significantly increased terms for sexual predators.
This bill would only apply to inmates who are currently in
custody, those who are currently on parole and whose parole is
revoked, and those who in the future come within the terms of
the above-noted bills but who do not receive a life sentence.
The Department of Corrections estimates that there are currently
1026 such inmates in custody, many of whom would not be
recommended for this program, and that there would be a few
determinatively sentenced inmates in the future under the
"One-Strike" bills." Analysis of AB 888 prepared by the Senate
Committee on Criminal Procedure, July 11, 1995.
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AB 1844 (Fletcher)
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Act] implementation. This number represents a fraction of the
20,750 Penal Code Section 290 registrants in prison at any one
time. This is an indicator that offenders are not being charged
with the one-strike provision as they stand trial for sex
offenses. Furthermore, there is no significant upward trend to
indicate that the one-strike law is going to cause referrals to
DMH under the SVP Act to disappear. [] District Attorneys
have informed DMH that the one-strike component must be in the
charging document. . . . As a result, the one-strike
25-years-to-life- sentence can, and often does, become part of a
plea bargain. For instance, the [prosecutor] drops the
one-strike in exchange for a guilty plea."
Members may wish to discuss whether prosecutors have used the
one-strike (life-term) sex crime sentencing law as a plea
bargaining tool. In addition, members may wish to explore in
discussions with prosecutors whether the SVP law has become a
kind of "backstop" that might lessen the imperative to seek
life-term convictions in some cases.
5. Limitations on the Movements of Registered Sex Offenders
As discussed in detail earlier in this analysis, existing laws
apply some limits on the movements of registered sex offenders.
Most notably, as enacted by Jessica's law current law provides
it "is unlawful for any person for whom registration is required
pursuant to the Sex Offender Registration Act to reside within
2,000 feet of any public or private school, or areas of a park
where children regularly gather," and authorizes municipal
jurisdictions to enact local ordinances that further restrict
the residency of any person required to register as a sex
offender. (Pen. Code 3003.5 (b) and (c).)
This bill would make it a misdemeanor offense for felony sex
offender registrants to enter "any park where children regularly
gather without written permission," with written permission
being obtained from a parole officer or, if the registrant is no
longer on parole, "from the chief administrative official of the
park." Many supporters of this bill, such as the Los Angeles
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AB 1844 (Fletcher)
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County Board of Supervisors, submit this provision would
"improve community safety by precluding registered sex offenders
from entering a park where children regularly gather."
In a letter to the author about these provisions, the California
Sex Offender Management Board urged that so-called "exclusion
zone" be enacted only in conjunction with revising the residency
restrictions in Jessica's Law:
AB 1844 creates exclusion zones for sex offenders,
making it a new misdemeanor for a sex offender to
enter a park under specified circumstances. These new
exclusion zones would overlay existing residency
restrictions that already prohibit sex offenders from
residing within 2,000 feet of schools or parks.
CASOMB, on the other hand, recommends the adoption of
more narrowly targeted residency restrictions. The
unintended effect of the current residence restriction
. . . has been to dramatically increase the number of
sex offenders registered as transients, which is the
most serious issue facing California today in the
field of sex offender management. CASOMB has noted
that research shows that sex offenders who live near
schools or parks do not have a greater likelihood of
reoffending. Therefore, residence restrictions should
be limited to offenders who have committed violent sex
offenses against children, sexually violent offenders,
and repeat sex offenders. The adoption of exclusion
zones should only be contemplated in conjunction with
this change in the law. It would be counterproductive
to public safety to enact an exclusion zone provision
without also amending the residence restriction to
reduce the number of transient sex offenders in this
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state.<40>
The concerns about the residency restrictions of Jessica's Law
expressed by the Board also were underscored in a June 1, 2010,
editorial of the San Diego Union Tribune:
(The residency) requirement seems absolutely
reasonable - and deeply reassuring to any parent or
school official. But after discussions with academic
experts, public defenders and others who deal with sex
offenders, and a review of the real-word effects of
residence-restriction laws around the United States,
our view is that it is an ongoing public policy
disaster. . . .
(E)specially in more densely packed low-income
communities, the 2,000-foot rule keeps many registered
sex offenders from living with their immediate
families, relatives and loved ones or from finding
affordable housing of any kind. This makes offenders'
lives far less stable by promoting homelessness,
joblessness, hopelessness and despair - all of which
increases the likelihood of new sex crimes. . . .
In other words, California has a state law in place
that has the likely practical effect of turning some
relatively minor sex offenders into far worse and of
spurring paroled violent sex offenders into acting
again on their dark impulses. The word for this is
grotesque.
Researchers cite several other flaws in the
residence-restriction approach. One has particular
----------------------
<40>
http://www.cce.csus.edu/conferences/cdcr/casomb/docs/CASOMB%20Let
ter%20to%20Assemblyman%
20Fletcher.pdf (emphasis added).
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resonance for San Diegans - the seeming presumption
that sexual predators attack those very near where
they live. That certainly wasn't true of John Gardner
III in his fatal assaults on Chelsea King and Amber
Dubois. Another problem is the false sense of security
the rules promote among parents and anyone with
responsibilities for children.
Yet many victims' rights groups - and many individuals
appalled by sex offenders - applaud when they hear of
how difficult life becomes for sex offenders because
of the residency restrictions. Those who make the
case that the rules are counterproductive face
accusations that they are coddling rapists, as
Tewskbury said in a telephone interview.
This emotional reaction may be understandable. But if
the goal is reducing violent sex crimes, it is not at
all helpful.
. . . The terrible flaw in Jessica's Law needs to be
removed in a new initiative. Otherwise, California
will continue to enforce a formal policy that makes
violent sex crimes more likely. . . .
The present policy is madness. It must change.<41>
Members may wish to discuss whether the concept of an exclusion
zone for certain sex offenders should be considered, as
recommended by the Sex Offender Management Board, only in the
context of a more comprehensive reform that includes revising
the residency restrictions in Jessica's law.
SHOULD AN EXCLUSION ZONE BE ENACTED WITHOUT REFINING RESIDENCY
RESTRICTIONS, AS RECOMMENDED BY THE SEX OFFENDER MANAGEMENT
BOARD?
AS CURRENTLY DRAFTED, WOULD THIS BILL INADVERTENTLY UNDERMINE
---------------------------
<41> Jessica's Law's Huge Flaw, San Diego Union Tribune
Editorial Board, June 1, 2010.
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PUBLIC SAFETY?
In addition to these residency restriction issues, members may
wish to consider a number of operational issues that could be
problematic with respect to the exclusion zone proposed by this
bill. For example, there currently are about 278 state parks,
with about a million and a half acres, 4,000 miles of trails and
nearly one-third of California's coast owned or managed by
California's state park system. There are a number of questions
members may wish to consider with respect to how this exclusion
zone would work, including:
What liability might follow if permission is granted to
a sex offender to enter a park and something happens?
What liability might follow if permission is not granted
to a sex offender to enter a park?
Who would a registrant have to ask permission from? A
ranger, regional administrator or other official?
How would a registrant seek that permission?
On what basis would permission be granted, or refused?
ARE THERE OPERATIONAL QUESTIONS THAT NEED TO BE ADDRESSED BEFORE
THE EXCLUSION ZONE PROPOSED BY THIS BILL IS ENACTED?
6. Parole Supervision
As discussed in detail earlier in this analysis, this bill would
increase the parole period for a number of convicted sex
offenders. In summary, this bill would:
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increase the parole period that now provides for five
years to at least ten years, and eliminate the authority of
the parole authority to waive or discharge the inmate, for
specified crimes;
include a specified kidnapping crime in a provision now
requiring a 10-year parole period for lifer sex offenders;
and
require lifetime parole, if parole is granted, for
specified sex crimes.
In its letter concerning this bill, the California Sex Offender
Management Board made the following comments relating to
lifetime parole:
(N)either lifetime nor less-than-lifetime supervision
can be effective without implementation of the
Containment Model during probation or parole. Most
sex offenders, no matter how long their prison terms,
will be released back into the community, yet
California does not have an effective system for
monitoring sex offenders once released. To address
this, CASOMB has recommended adoption of the
Containment Model, which requires sex
offender-specific management programs to be provided
to all sex offenders on probation or parole, by
approved sex offender management professionals. . . .
Without the adoption of the full model, sex offenders
will continue to pose a greater risk after release,
with less chance of being flagged and closely
monitored in appropriate cases. . . .
Not all sex offenders pose the same risk over their
lifetimes. . . . Sex offenders should be tiered
according to risk level and dangerousness, as is done
in most states. . . . Tiering would help law
enforcement concentrate its resources on sex offenders
in the community who are at higher risk for sexual or
violent re-offending. Similarly, CASOMB has
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recommended lifetime supervision for higher risk,
violent and recidivistic sex offenders.<42>
Members may wish to discuss whether the parole changes proposed
by this bill are consistent with the recommendations of the Sex
Offender Management Board, and whether this bill would be
strengthened by incorporating these Board recommendations.
WOULD THE PAROLE PROVISIONS OF THIS BILL IMPROVE PUBLIC SAFETY?
WOULD PUBLIC SAFETY BE BETTER SERVED IF THIS BILL WAS AMENDED TO
INCORPORATE THE RECOMMENDATIONS OF THE SEX OFFENDER MANAGEMENT
BOARD WITH RESPECT TO MORE TARGETED LIFETIME PAROLE PROVISIONS
AND THE ENACTMENT OF CONTAINMENT MODEL ELEMENTS?
7. The California Sex Offender Management Board: Observations and
Recommendations
In 2006, the California Sex Offender Management Board was
created to "address any issues, concerns, and problems related
to the community management of adult sex offenders. The main
objective of the board, which shall be used to guide the board
in prioritizing resources and use of time, is to achieve safer
communities by reducing victimization."<43>
Since its creation, the Board has produced a number of
reports.<44> In January of this year, the Board issued its
Recommendations Report, which included the following
observations about California's policies with respect to sex
offenders:
. . . (D)ue to California's economic crisis and
significant changes in state law, the challenge of
----------------------
<42>
http://www.cce.csus.edu/conferences/cdcr/casomb/docs/CASOMB%20Let
ter%20to%20Assemblyman%20
Fletcher.pdf.
<43> Penal Code 9002, enacted by AB 1015 (Chu and
Spitzer)(Ch. 338, Stats. 2006).
<44> See http://www.casomb.org/.
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quantifying, assessing and recommending policy changes
that would improve sex offender management practices
statewide has become both more complex and more
fundamentally important. . . .
The reality in California is, rather than a coherent
and coordinated sex offender management system, the
state has multiple sex offender management strategies
created by various legislative, voter initiative and
executive branch actions with varied "mandates" and
very different funding requirements and funding
assurances. California's system of sex offender
management was created - for the most part - piece by
piece through separate and uncoordinated legislative
and administrative actions. Although various
components of the system have learned to work
together, the overall system could not be described as
coherent, cohesive and coordinated. . . .
Sexual crimes rightly outrage communities. The legacy
of sexual assault in the lives of victims is often
profound and long-lasting. In the aftermath of an
assault, communities often demand with great vehemence
that policymakers and public safety professionals DO
SOMETHING. The root of the desire to acknowledge the
serious nature of the crime is difficult to disparage
but, when combined with fear, misinformation and the
heat of media inquiry, the flame of community outrage
can create a political environment that rewards swift
action over more methodical, effective approaches. On
occasion, these swift approaches may address
short-term community outrage at the cost of directing
resources and skilled personnel away from investments
in strategies for long-term safety. . . .
Some of our most public and tragic sex offender
management failures have demonstrated the importance
of qualified, trained professionals working in concert
with other disciplines to identify emergent risks.
Tragedies are not averted because of a single data
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point or tool, they are averted because qualified
professionals know how to interpret that data in
context, communicate with each other and respond
accordingly.
In a time of scarce resources, board members agree
that approaches that can demonstrate success should
take priority over those that are untested.
Furthermore, policymakers should insist on ongoing
evaluation of sex offender management strategies to
ensure that quality is maintained and that new
approaches are effective.<45>
The Board stated in its January 2010 report that it strongly
recommends that the sex offender management strategies
collectively known as the Containment Model be implemented
statewide.
The Containment Model has been identified by the
CASOMB as the best practice for community supervision
of sex offenders. While the Governor's High-Risk Sex
Offender Task Force and the CASOMB have endorsed
implementation of the Containment Model, it has not
been implemented in any uniform or continuous manner.
A few counties have their own version of the
Containment Model; most counties do not, nor does CDCR
use this model.
The Containment Model calls for a collaborative effort
of sex offender specific treatment providers, law
enforcement supervising agents such as probation
officers or parole agents, polygraphists providing
specialized testing as both a treatment and monitoring
tool and victim advocacy participants whenever
possible. The offender is supervised and overseen
within this context. If these aspects of containment
are not in place, efficacy is reduced. CDCR does not
use the Containment Model; there is no treatment being
funded and no polygraph testing being conducted.
----------------------
<45> Id. pp. 8-10.
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While CDCR has a significant amount of funds and
energies invested in GPS and supervision, this
approach is not the full Containment Model.
Supervision alone is not as effective as the full
Containment Model. Public safety would be increased
if the Containment Model were required throughout the
State for all sex offenders, whether on parole or
probation.<46>
The Board's January report summarized the Board's "Key
Recommendations," as follows:
Re-entry, Supervision and Housing
In order to mitigate the potential public safety
risk of increased offender transience, California
should target the use of residence restrictions
utilizing a hybrid model of restrictions similar to a
2009 Iowa law:
Residence restrictions should apply to the
most serious offenders (SVP, repeat sex offenders, and
offenders convicted of violent sex offenses) who have
committed an offense against a child.
Loitering restrictions should apply to
designated Penal Code Section 290 registrants in
places where children congregate (child safe zones)
California cities and counties should not pass sex
offender residence restriction ordinances that are in
conflict with or exceed state law.
GPS monitoring should only be utilized in
conjunction with some form of community supervision,
with the understanding that some high-risk offenders
may need to be subject to extended supervision
(including lifetime supervision for exceptionally
high-risk offenders).
Victim Services
----------------------
<46> Id at 32-33.
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Funding for victim service programs should be
sufficient and stable so as not to erode the
protection of victim rights and access to services.
Multidisciplinary teams should be institutionalized
at the state policy level.
Investigation, Prosecution, Disposition
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Communities should employ best practices that
consider the Victim/Survivor's health and well-being
in addition to maximizing evidence gathering,
successful prosecution and holding sex offenders
legally accountable. These best practices include:
Sexual Assault Response Teams (SART), Child Assault
Centers (CAC), Multi-Discipline Interview Teams (MDIT)
and Family Justice Centers.
Law Enforcement and Prosecution should employ best
practices designed to increase the effectiveness of
responding to, investigating and prosecuting sexual
assault cases. These best practices include:
Specialized Sexual Assault Investigative Units and
Specialized Sexual Assault Prosecution Units.
Treatment
To ensure effective treatment, CASOMB should be
provided resources to develop written policies and
standards which should be implemented at the State
level for programming for sexual offenders. Separate
standards are needed for adult, developmentally
disabled and juvenile sex offenders.
Risk level-appropriate and evidence-based sex
offender specific treatment should be routinely
required for all adult and juvenile sex offenders
under supervision in California.
Registration and Notification
California should concentrate state resources on
more closely monitoring high-and-moderate risk sex
offenders. A sex offender's risk of re-offense should
be one factor in determining the length of time the
person must register as a sex offender and whether to
post the offender on the Internet; other factors that
should determine duration of registration and Internet
(More)
AB 1844 (Fletcher)
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posting include whether the sex offense was violent,
was against a child, involved sexual or violent
recidivism, and whether the person was civilly
committed as a sexually violent predator.
Law enforcement should allocate resources to enforce
registration law, actively pursue violations, maximize
resources and results by devoting more attention to
higher-risk offenders.
Special Populations
California should investigate methods of increasing
available treatment hours and participation rates for
Penal Code Section 290 registrants who are committed
or detained as inpatients within the Department of
Mental Health.
California should identify a more efficient method
of determining when a parole violation is related to
reoffense risk and appropriately triggers a clinical
reevaluation versus parole violations not related to
risk that should not require an additional evaluation
for parolees who have been previously evaluated and
rejected for the Sexually Violent Predator
Program.<47>
Members of the Committee and the author may wish to discuss how
the observations and recommendations of the Board inform the
consideration of this bill and its stated goals with respect to
improving public safety and reducing the risks posed by sex
offenders.
WILL THIS BILL ADVANCE ANY OF THE RECOMMENDATIONS OF THE SEX
OFFENDER MANAGEMENT BOARD?
IS THIS BILL CONSISTENT WITH THE STRATEGIC RECOMMENDATIONS OF
THE SEX OFFENDER MANAGEMENT BOARD?
---------------------------
<47> Recommendations Report, California Sex Offender Management
Board, pp. 5-6 (January 2010).
AB 1844 (Fletcher)
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WILL THIS BILL IMPROVE COMMUNITY SAFETY FROM HIGH RISK SEX
OFFENDERS?
WOULD ELEMENTS OF THE CONTAINMENT MODEL BE MORE EFFECTIVE IN
ACHIEVING PUBLIC SAFETY THAN SOME OF THE PROVISIONS OF THIS
BILL?
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