BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1253 (Strickland) 3
As Introduced February 19, 2010
Hearing date: April 20, 2010
Penal Code
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SEX OFFENDERS:
CONDITIONS OF PROBATION
HISTORY
Source: Author
Prior Legislation: SB 586 (Joint Committee for Revision of the
Penal Code) - Ch. 1064, Stats. 1981
Support: California State Sheriffs' Association
Opposition:Taxpayers for Improving Public Safety; California
Public Defenders Association
KEY ISSUE
SHOULD COURTS BE PROHIBITED FROM ALLOWING THE NARROW CATEGORY OF SEX
OFFENDERS CURRENTLY ELIGIBLE FOR PROBATION FROM BEING PLACED OR
RESIDING WITHIN ONE-HALF MILE OF A CHILD VICTIM'S RESIDENCE, AS
SPECIFIED?
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SB 1253 (Strickland)
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PURPOSE
The purpose of this bill is to prohibit the narrow category of
sex offenders currently eligible for probation from being placed
or residing, for the duration of the probation term, within
one-half mile of the child victim's residence, as specified.
Current law generally prohibits probation for certain sex
crimes, as specified. (Penal Code 1203.066.)
Current law authorizes an exception to this general rule and
allows probation to be granted in specified intrafamilial sex
crimes,<1> only if the following terms and conditions are met:
1. If the defendant is a member of the victim's household,
the court finds that probation is in the best interest of
the child victim.
2. The court finds that rehabilitation of the defendant is
feasible and that the defendant is amenable to undergoing
treatment, and the defendant is placed in a recognized
treatment program designed to deal with child molestation
immediately after the grant of probation or the suspension
of execution or imposition of sentence.
3. If the defendant is a member of the victim's household,
probation shall not be granted unless the defendant is
removed from the household of the victim until the court
determines that the best interests of the victim would be
served by his or her return. While removed from the
household, the court shall prohibit contact by the
defendant with the victim, with the exception that the
court may permit supervised contact, upon the request of
the director of the court-ordered supervised treatment
program, and with the agreement of the victim and the
victim's parent or legal guardian, other than the
defendant.
4. The court finds that there is no threat of physical harm
to the victim if probation is granted. (Penal Code
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<1> The statutory provisions are Penal Code section 288 and
288.5, to the extent the case is eligible under the criteria set
forth above.
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1203.066(d)(emphasis added).)<2>
This bill would revise (3) above to delete the authority of the
court to allow a defendant who is a member of the victim's
household to return to the household if the court determines
that the best interests of the victim would be served by his or
her return.
This bill would add to these provisions a requirement that the
court prohibit the defendant from being placed or residing, for
the duration of the probation term, within one-half mile of the
child victim's residence.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
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,
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<2> Current law further requires the following in these
circumstances: the court shall state its reasons on the record
for whatever sentence it imposes on the defendant; the court
shall order the psychiatrist or psychologist who is appointed as
specified to include a consideration of specified factors in
making his or her report to the court; the court shall order the
defendant to comply with all probation requirements, including
the requirements to attend counseling, keep all program
appointments, and pay program fees based upon ability to pay;
and no victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's
enrollment on participation by the victim. ( Penal Code
1203.066(d)(2).)
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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
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
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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.<3>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Stated Need for This Bill
The author states:
Current law prohibits specified defendants who are
convicted of lewd or lascivious acts on a child or
continuous sexual abuse of child from being granted
probation. If the defendant is eligible for
probation, then probation is granted only if certain
terms and conditions are met. These terms and
conditions do not currently prohibit the defendant
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<3> 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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from living near their child victim.
If this same defendant is convicted and granted
parole, current law does allow for a residence
restriction to be imposed. An offender, who is found
to be a high risk by the Department of Corrections,
shall not be placed or reside within mile of any
school.
These children have already suffered unimaginable
harm, regardless of whether the offender is convicted
of a misdemeanor or a felony. The children should not
be further traumatized and forced to live near their
attacker. We should do everything possible to ensure
the safety of the victim and restore their sense of
security in the neighborhood. . . .
Prohibits a defendant convicted of lewd or lascivious
acts on a child or continuous sexual abuse of a child
from being placed or residing, for the duration of the
probation term, within mile of the child victim's
residence.
2. What This Bill Would Do
As explained above, current law generally prohibits probation in
sex crime cases. Current law also imposes specified residency
restrictions concerning where serious and violent parolees,
including sex offenders, can be placed in terms of proximity to
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a victim.<4>
For the very narrow category of sex offenders who may receive
probation, this bill would require courts to prohibit the
defendant from being placed or residing, for the duration of the
probation term, within one-half mile of the child victim's
residence. This proscription would include offenders who are
members of a victim's household.
3. Potential Inadvertent Consequences; Suggested Revision
The basis for these provisions - probation eligibility for sex
offenders -- are recounted in People v. Groomes (1993) 14
Cal.App.4th 84, which quoted and paraphrased the California
Supreme Court in People v. Jeffers (1987) 43 Cal.3d 984:
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.
4093-4096). In People v. Jeffers (1987) 43 Cal.3d
984. . . the Supreme Court examined and extensively
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<4> See Penal Code section 3003(f): "Notwithstanding any other
provision of law, an inmate who is released on parole shall not
be returned to a location within 35 miles of the actual
residence of a victim of, or a witness to, a
violent felony as defined in paragraphs (1) to (7), inclusive,
and paragraph (16) of subdivision (c) of Section 667.5 or a
felony in which the defendant inflicts great bodily injury on
any person other than an accomplice that has been charged and
proved . . . if the victim or witness has requested additional
distance in the placement of the inmate on parole, and if the
Board of Parole Hearings or the Department of Corrections and
Rehabilitation finds that there is a need to protect the life,
safety, or well-being of a victim or witness."
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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 intrafamilial regressive offenders. .
. . 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 intrafamily
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 intrafamily 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. ([Hgs. on Child Molestation Legislation]
Hg. of Apr. 24, 1981, pp. 56-57.) Effective
rehabilitation is more difficult in prison because the
other family members cannot participate. (Id. at pp.
60-61.)" (People v. Jeffers, supra, 43 Cal.3d at p.
995, fn. omitted.)<5>
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<5> People v. Groomes, supra, at 89-90 (some footnotes
omitted)(emphasis added).
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For the narrow category of sex crimes where probation is
permissible, in cases where the defendant is a member of the
victim's household probation is allowed if the court finds that
probation would be in the best interest of the child victim.
Current law further provides that if the defendant is a member
of the victim's household, probation shall not be granted unless
the defendant is removed from the household of the victim until
the court determines that the best interests of the victim would
be served by his or her return.
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As currently drafted, this bill would repeal the authority of a
court to allow a defendant who is a member of the victim's
household to move back into the household if the court finds his
or her return would be in the best interest of the child. This
change links to the bill's principal goal of prohibiting sex
offender probationers from living within one-half mile of the
child victim's residence during the term of the probation.
These provisions would apply this residency restriction on any
offender subject to these provisions, regardless of the
individual circumstances of a case or requirements of a victim.
As explained in the background materials provided by the
author's office and supporters like the California State
Sheriffs' Association, this bill is intended to protected
children "who have already experienced unimaginable hardships .
. . ." In light of the historical purposes for current law,
members may wish to discuss whether as drafted this bill may
inadvertently discourage the reporting of intra-familial
molestation. Members also may wish to consider whether there
may be instances where this residency restriction might not be
in the best interests of a child. For example, there may be
cases of intra-familial abuse where the court determines a
return to the home would be in the best interests of the child,
or cases where the defendant is a relative who lives nearby and
limiting his or her residence would be adverse to the best
interests of the victim.
Recasting the provisions of this bill to require the imposition
of this condition unless the court finds, on the record, that
the residency restriction would not be in the best interest of
the child may fulfill the purposes of this bill without risking
these or other unintended consequences. Specifically, the
author and/or the Committee may wish to consider refining this
bill as follows:
(C) If the defendant is a member of the victim's
household, probation shall not be granted unless the
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defendant is removed from the household of the victim
until the court determines that the best interests of
the victim would be served by his or her return.
victim . While removed from the household, the court
shall prohibit contact by the defendant with the
victim, with the exception that the court may permit
supervised contact, upon the request of the director
of the court-ordered supervised treatment program, and
with the agreement of the victim and the victim's
parent or legal guardian, other than the defendant.
(D ) If the defendant is not a member of the victim's
household , the court shall prohibit the defendant from
being placed or residing within one-half mile of the
child victim's residence for the duration of the
probation term unless the court, on the record, states
its reasons for finding that this residency
restriction would not serve the best interest of the
victim. The court prohibits the defendant from being
placed or residing, for the duration of the probation
term, within one-half mile of the child victim's
residence.
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