BILL ANALYSIS
SB 1253
Page 1
Date of Hearing: June 15, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1253 (Strickland) - As Amended: April 27, 2010
SUMMARY : Prohibits a person convicted of lewd or lascivious
acts upon or with the body of a child, or of continuous sexual
abuse of a child, from being placed or residing within one-half
mile of the child victim's residence for the duration of his or
her 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.
EXISTING LAW :
1)Provides that probation shall not be granted to, nor shall the
execution or imposition of sentence be suspended for, any of
the following persons [Penal Code Section 1203.066(a)]:
a) A person who is convicted of violating Penal Code
Section 288 (lewd or lascivious act) or 288.5 (continuous
sexual abuse of a child) when the act is committed by the
use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or
another person.
b) A person who caused bodily injury on the child victim in
committing a violation of Penal Code Section 288 or 288.5.
c) A person who is convicted of a violation of Penal Code
Section 288 or 288.5 and who was a stranger to the child
victim or befriended the child victim for the purpose of
committing an act in violation of Penal Code Section 288 or
288.5, unless the defendant honestly and reasonably
believed the victim was 14 years of age or older.
d) A person who used a weapon during the commission of a
violation of Penal Code Section 288 or 288.5.
e) A person who is convicted of committing a violation of
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Section 288 or 288.5 and who has been previously convicted
of a violation of rape, rape of a spouse, rape or
penetration of genital or anal openings by a foreign
object, inveiglement or enticement of an unmarried female
under 18 for purposes of prostitution, unlawful sexual
intercourse when consent is procured by false or fraudulent
representation with intent to create fear, abduction of a
person under 18 for the purpose of prostitution, incest,
sodomy, lewd or lascivious act, continuous sexual abuse of
a child, oral copulation, or forcible acts of sexual
penetration, or of assaulting another person with intent to
commit a crime with the intent to commit mayhem, rape,
sodomy, oral copulation, or who has been previously
convicted in another state of an offense which, if
committed or attempted in this state, would constitute an
offense enumerated in this paragraph.
f) A person who violated Penal Code Section 288 or 288.5
while kidnapping the child victim.
g) A person who is convicted of committing a violation of
Penal Code Section 288 or 288.5 against more than one
victim.
h) A person who, in violating Penal Code Section 288 or
288.5, has substantial sexual conduct with a victim who is
under 14 years of age.
i) A person who, in violating Penal Code Section 288 or
288.5, used obscene matter, or matter depicting sexual
conduct.
2)States that if a person is convicted of a violation of Penal
Code Section 288 or 288.5, and the factors listed in the
aforementioned subdivision (a) are not pled or proven,
probation may be granted only if the following terms and
conditions are met [Penal Code Section 1203.066(d)]:
a) 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.
b) 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
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treatment program designed to deal with child molestation
immediately after the grant of probation or the suspension
of execution or imposition of sentence.
c) 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.
d) The court finds that there is no threat of physical harm
to the victim if probation is granted.
3)Mandates 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 or a felony in which the
defendant inflicts great bodily injury on any person other
than an accomplice that has been charged and, 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 (CDCR) finds
that there is a need to protect the life, safety, or
well-being of a victim or witness. [Penal Code Section
3003(f).]
4)Requires an inmate who is released on parole for a violation
of Penal Code Section 288 or 288.5 whom the CDCR determines
poses a high risk to the public shall not be placed or reside,
for the duration of his or her parole, within one-half mile of
any public or private school including any or all of
Kindergarten and Grades 1 to 12, inclusive. [Penal Code
Section 3003(g).]
5)Requires any inmate convicted of a felony registerable sex
offense and who is committed to prison and released on parole
shall be monitored by global positioning system for the term
of his or her parole. [Penal Code Section 3000.07(a).]
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6)States that any person who commits lewd and lascivious acts
upon the body, or any part thereof, of a child under the age
of 14 years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that
person or the child is punishable by imprisonment in the state
prison for three, six or eight years. [Penal Code Section
288(a).]
7)Defines "continuous sexual abuse of a child" as three or more
acts of substantial sexual conduct with a child under the age
of 14 years, or three or more acts of lewd and lascivious
conduct with a child under the age of 14 years, over a period
of not less than three months in duration. Continuous sexual
abuse of a child is punishable by imprisonment in the state
prison for 6, 12, or 16 years. [Penal Code Section 288.5(a).]
8)Provides for the "one-strike" sex crime sentencing law that
provides sentences of 15-years or 25-years-to-life in certain
sex crimes if specified circumstances in aggravation are found
to be true. (Penal Code Section 667.61.)
9)Specifies that the qualifying sex crimes under the one-strike
sex law are punishable by imprisonment in the state prison for
life, and the defendant shall not be eligible for release on
parole for 15 years or 25 years, as specified. These crimes
are forcible rape, forcible spousal rape, rape by a foreign
object, forcible sodomy, forcible oral copulation, lewd and
lascivious acts with a child under the age of 14 accomplished
by force or duress, and lewd and lascivious acts with a child
under the age of 14 accomplished by other than force or duress
where the defendant is not eligible for probation. [Penal
Code Section 667.61(a) and (c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author of this bill,
"Child or continuous sexual abuse of a 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 from living near their child
victim.
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"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 CDCR,
shall not be placed or reside within one-half mile of any
school.
"These children have 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."
2)Background : According to information provided by the author,
"Current law prohibits specified defendants who are convicted
of lewd or lascivious acts on a child or continuous sexual
abuse of a 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 from living
near their child victim."
3)Is this Bill Necessary ? Under Penal Code Section 1203.066, a
prison sentence is presumed to be the correct sentence. Penal
Code Section 1203.066 states that, notwithstanding any other
provision of law, "probation shall not be granted to, nor
shall the execution or imposition of sentence be suspended for
[specified child sexual offenders.]" Thus, a grant of
probation must be consistent with that presumption. A 1993
case held that prison is presumed to be the correct sentence
for lewd conduct regardless of the probation provisions in
Penal Code Section 1203.066(c): "[T]he Legislature has
declared that imprisonment is the normal sentence if a
defendant has engaged in substantial sexual conduct with a
child under the age of 14 years . . . Only when a defendant
can establish he or she meets all the criteria of . . .
Section 1203.066[(c)] can probation be ordered. This court
has previously held that a defendant has the burden to present
evidence showing that he is entitled to consideration for
probation under subdivision (c) of Section 1203.066." [People
v. Groomes (1993) 14 Cal.App.4th 84, 89.]
Further, the "one-strike" law enacted in September 1994
increased the length of the prison terms to which sex
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offenders will be sentenced by adding a new section to the
California Penal Code and amending two other sections. (See
Penal Code Sections 667.61, 667.71 and 1203.066.)
Specifically, the one-strike law mandates that a person
convicted of a sex offense listed in Penal Code Section
667.61(c) will be sentenced under certain circumstances to
life in prison without the possibility of parole (LWOP) for 25
years and includes lewd and lascivious acts with a child under
14 years of age. A person convicted of a sex offense under
other circumstances will be sentenced to LWOP for 15 years.
The law further denies the convicted offender the possibility
of probation or the suspension of his or her sentence if the
offense is one of the first six offenses enumerated in Penal
Code Section 667.61(c). For a first-time sex offender, the
opportunity for parole is expressly prohibited until the
offender has served at least 85% of the minimum prison term.
[Penal Code Section 667.61(j).]
a) Restrictions on Paroled Sex Offenders : As outlined
above, Penal Code Section 1203.066, subdivision (d), leaves
a very few circumstances where a defendant would be granted
probation. Thus, the majority of offenders will be given
prison time. If and when such an offender is paroled,
there are multiple provisions under current law that
protect minor victims of sex crimes.
On November 8, 2006, California voters passed Proposition 83,
"The Sexual Predator Punishment and Control Act: Jessica's
Law". Proposition 83 requires any inmate convicted of a
felony registerable sex offense and committed to prison and
released on parole to be monitored by global positioning
system (GPS) for the term of his or her parole. [Pen. Code
Section 3000.07(a).] Essentially, GPS monitoring provides
information to probation and parole officials about the
whereabouts of sex offenders. Theoretically, monitoring
prohibits sex offenders from certain areas (e.g., schools,
day care centers, etc.) by making those areas exclusion
zones. Entrance into these exclusion zones can result in a
violation of an offender's parole status.
At present, Penal Code Section 3003(f) also states "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 or a felony in
which the defendant inflicts great bodily injury on any
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person other than an accomplice that has been charged and,
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 CDCR finds that there is a need to
protect the life, safety, or well-being of a victim or
witness."
Lastly, Penal Code Section 3003(g) states "an inmate who is
released on parole for a violation of lewd and lascivious
acts with a child, or continuous sexual abuse of a child,
whom the CDCR has determined poses a high risk to the
public shall not be placed or reside, for the duration of
his or her parole, within one-half mile of any public or
private school including any or all of Kindergarten and
Grades 1 through 12, inclusive." [Penal Code Section
3003(g).]
b) Restrictions on Paroled Sex Offenders and Sex Offenders
Granted Probation : In 2006, under "Jessica's Law,"
California prohibited any registerable sex offender from
residing within 2,000 feet of any public or private school,
or park where children regularly gather regardless of
whether or not his or her underlying crime involved a minor
victim. [Penal Code Section 3003.5(b).] Municipal
jurisdictions were also afforded the ability to adopt any
additional local ordinances which further restrict the
residency of any person for whom registration as a sex
offender is required. [Penal Code Section 3003.5(c).]
Current law also allows information about certain sex
offenders to be made available to the public via the
Internet and includes the name, known aliases, a
photograph, a physical description, date of birth, and the
address at which the person resides for specified sex
offenses. [Penal Code Section 290.46(b).]
c) Is an Additional One-Half Mile Restriction a Reasonable
Means to an End : Current sex offender restrictions affect
one's residence, employment, family, and even freedom if he
or she fails to register accordingly. Understanding the
costs and benefits of a law is crucial to determining its
rationality. The benefits of residency restrictions are
two-fold. At one level, communities benefit from knowing
that they do not have sex offenders living in specified
areas. This provides security. Theoretically, the second
benefit of residency laws would be that they prevent some
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sex offenses from occurring. However, empirical evidence
demonstrates that these laws do not prevent a majority of
sex crimes. "Ninety percent of child victims know their
offender, with almost half of the offenders being a family
member. Of sexual assaults against people age 12 and up,
approximately 80% of the victims know the offender."
[Office of the Attorney General, Facts About Sex Offenders
(as
Jan. 7, 2010).] These findings not only undermine the
stated purpose of residency restrictions, but also render
false the sense of security.
The perceived "benefits" of residency restrictions come with
monetary, psychological, and ethical costs. [See Levenson
(2005) Sex Offender Residence Restrictions: A Report to
the Florida Legislature.] The obvious costs include those
associated with identifying, monitoring, arresting,
prosecuting, and imprisoning sex offenders who violate
broad residency laws. There are also other less obvious
social costs. Perhaps the most compelling of these costs
is that police resources will be spread thin by voluminous
monitoring obligations, leaving fewer resources. Other
costs include a potential loss of labor from sex
registrants unable to obtain jobs upon disclosing their
status as registrants. Additionally, communities incur
other subtle costs by disenfranchising a substantial sector
of their population. Feelings of disenfranchisement,
rejection, hatred, and neglect negatively affect the mental
states of those individuals forced to live on the fringes
of society. [See Pinard & Thompson, Offender Reentry and
the Collateral Consequences of Criminal Convictions: An
Introduction (2006) 30 N.Y.U. Rev. L. & Soc. Change 585.]
This large-scale rejection often causes the sex offender to
harbor reciprocal feelings towards society, sometimes to
the point where the offender's feelings of civic
responsibility - including the duty to follow laws -
dissipate. (Ibid.) When people are denied the rights of
citizens, some may feel like they have proportionally fewer
duties of citizenship. (Ibid.) As sex offenders are
forced farther and farther from densely populated areas and
required to find housing from an increasingly small number
of options that comply with residency restrictions, they
are more likely to become homeless and transient.
Homelessness and transience increase the risks of
psychological and treatment problems and the costs of
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monitoring and tracking the sex offenders. (Ibid.)
According to the California Sex Offender Management Board
(SOMB) January 2009 report:
"The vast majority evidence and research conducted to date
does not demonstrate a connection between where an offender
lives and recidivism. Since the expansion of residency
restrictions in California in 2006, the availability of
suitable housing for sex offenders has plummeted. As a
result, the number of sex offenders registering transient
has dramatically increased. The body of literature and
research to date indicates that a lack of stable and
appropriate housing can contribute to recidivism." [SOMB,
Progress Report (Jan. 2009) p. 8
(as of Feb. 19, 2010).]
Given the current residency restrictions and information
available via the Internet concerning registered sex
offenders it is questionable whether another one-half mile
restriction is necessary.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
San Bernardino County Sheriff's Department
One private individual
Opposition
California Public Defenders Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744