BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1317 (Leno) 7
As Amended April 8, 2010
Hearing date: April 20, 2010
Penal Code
AA:mc
TRUANCY:
PARENTAL CRIMINAL LIABILITY
HISTORY
Source: San Francisco District Attorney
Prior Legislation: SB 1555 (Robbins) - Ch. 1256, Stats. 1988
Support: California District Attorneys Association; California
State PTA; California
Teachers Association; California Probation, Parole, and
Correctional Association;
Chief Probation Officers of California; one individual
Opposition:California Public Defenders Association; American
Civil Liberties Union (unless amended)
KEY ISSUES
Should a new misdemeanor be enacted for parents of K-8 children WHO
ARE CHRONICALLY TRUANT, AS SPECIFIED?
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Should courts expressly be authorized to establish a deferred entry
of judgment program to handle cases involving parents or guardians
of elementary school pupils who are chronicALLY TRUANT, AS
SPECIFIED?
PURPOSE
The purposes of this bill are to 1) enact a new misdemeanor for
parents of K-8 children who are chronically truant, as
specified; and 2) authorize courts to establish a deferred entry
of judgment program to handle cases involving parents or
guardians of elementary school pupils who are chronically
truant, with specified features.
Current law provides that "every person who commits any act or
omits the performance of any duty, which act or omission causes
or tends to cause or encourage any person under the age of 18
years to (become a dependent or delinquent ward of the juvenile
court<1>) or which act or omission contributes thereto, or any
person who, by any act or omission, or by threats, commands, or
persuasion, induces or endeavors to induce any person under the
age of 18 years or any ward or dependent child of the juvenile
court to fail or refuse to conform to a lawful order of the
juvenile court, or to do or to perform any act or to follow any
course of conduct or to so live as would cause or manifestly
tend to cause that person to become or to remain a person within
the (jurisdiction of the dependency or delinquency court, as
specified), is guilty of a misdemeanor and upon conviction
thereof shall be punished by a fine not exceeding $2,500, or by
imprisonment in the county jail for not more than one year, or
by both fine and imprisonment in a county jail, or may be
released on probation for a period not exceeding five years."
(Penal Code 272.)
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<1> Specifically, come within the provisions of Section 300,
601, or 602 of the Welfare and Institutions Code.
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Current law provides that for purposes of these provisions, "a
parent or legal guardian to any person under the age of 18 years
shall have the duty to exercise reasonable care, supervision,
protection, and control over their minor child." (Id.)
This bill would enact a new crime providing that a "parent or
guardian of a pupil of six years of age or more who is in
kindergarten or any of grades 1 to 8, inclusive, and who is
subject to compulsory full-time education or compulsory
continuation education, whose child is a chronic truant as
defined in Section 48263.6 of the Education Code, is guilty of a
misdemeanor," punishable by a fine not exceeding $2,000, or by
imprisonment in the county jail not exceeding one year, or by
both that fine and imprisonment.
Current law authorizes a diversion program for parents or
guardians who are being prosecuted for contributing to the
delinquency of a minor under Penal Code section 272, as
specified. (Penal Code 1001.70 et seq.)
This bill would provide that a parent or guardian guilty of the
new misdemeanor this bill would create would be eligible to
participate in the deferred entry of judgment program created by
this bill, as explained below.
This bill would authorize a superior court to establish a
deferred entry of judgment program "to adjudicate cases
involving parents or guardians of elementary school pupils who
are chronic truants as defined in Section 48263.6 of the
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Education Code,<2>" with the following components:
(1) A dedicated court calendar.
(2) Leadership by a judge of the superior court in that
county.
(3) Service referrals for parents or guardians, including,
but not necessarily limited to, all of the following:
(A) Case management.
(B) Mental and physical health services.
(C) Parenting classes and support.
(D) Substance abuse treatment.
(E) Child care and housing.
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<2> This section is proposed in SB 1148 (Alquist), the
enactment of which this bill is contingent upon. As amended
April 6, 2010, SB 1148 would provide that, "Any pupil subject to
compulsory full-time education or to compulsory continuation
education who is absent from school without valid excuse for 10
percent or more of the schooldays in
one school year, from the date of enrollment to the current
date, is deemed a chronic truant, provided that the appropriate
school district officer or employee has complied with Sections
48260, 48260.5, 48261, 48262, 48263, and 48291."
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(1) A clear statement that, in lieu of trial, the court may
grant deferred entry of judgment with respect to the
current crime or crimes charged if the defendant pleads
guilty to each charge and waives time for the pronouncement
of judgment and that, upon the defendant's compliance with
the terms and conditions set forth by the court and agreed
to by the defendant upon the entry of his or her plea, and
upon the motion of the prosecuting attorney, the court will
dismiss the charge or charges against the defendant, as
specified.
(2) A clear statement that failure to comply with any
condition under the program may result in the prosecuting
attorney or the court making a motion for entry of
judgment, whereupon the court will render a finding of
guilty to the charge or charges pled, enter judgment, and
schedule a sentencing hearing as otherwise provided in this
code.
(3) An explanation of criminal record retention and
disposition resulting from participation in the deferred
entry of judgment program and the defendant's rights
relative to answering questions about his or her arrest and
deferred entry of judgment following successful completion
of the program.
This bill becomes operative only if Senate Bill 1148 of the
2009-10 Regular Session is enacted, adds Section 48263.6 to the
Education Code, and becomes operative on or before January 1,
2011.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
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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
laws, as well as the state's counterproductive parole
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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.<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 aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Stated Need for This Bill
The author states in part:
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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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When it comes to breaking the cycle of crime, we can
either pay attention to the signs of trouble now, or
we can pay the price later. We pay that price in more
ways than one. Elementary school children who fail to
attend school today become tomorrow's high school
dropouts. Dropouts are those most likely to end up in
the streets as either victims or perpetrators of
crime. . . . . Combating elementary school
truancy is a smart approach to crime prevention.
The statistics speak volumes. Habitual truants become
high school truants, and it is estimated that as many
as 75 percent of all truant high school students will
eventually drop out of school. Statewide,
three-fourths of prison inmates are high school
dropouts. In San Francisco, over 94 percent of all
homicide victims under the age of 25 are high school
dropouts. . . .
. . . In 2007, the National Center for Children in
Poverty issued a study finding that children who miss
10 percent or more of the days in a given school year
are the most likely to suffer lower academic
performance in subsequent school years. . . .
. . . Numerous studies demonstrate a strong
correlation between teenage truancy and juvenile
delinquency. The California Department of Education
identified truancy as the most powerful predictor of
juvenile delinquent behavior. The Office of Juvenile
Justice and Delinquency Prevention reported that
truancy correlates with substance abuse, gang
involvement, and other criminal activity. A report
by Fight Crime: Invest in Kids concluded that
increasing graduation rates by 10 percentage points
would decrease rates of violent crime by 20 percent,
and prevent 500 murders and more than 20,000
aggravated assaults each year in California. . . .
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County prosecutors have relied on Penal Code Section
272, "contributing to the delinquency of a minor" to
seek stronger sanctions against parents of repeatedly
truant children. Although Section 272 does not
specifically address truancy, courts have found
parents guilty of this misdemeanor if their failure to
get their child in school results in delinquent
juvenile behavior. Under this statute, parents can be
fined up to $2,500 or placed in jail for 6 months.
Unfortunately, however, neither the Education Code nor
the Penal Code effectively addresses the most serious
problem that needs the most immediate attention:
chronic elementary school truancy.
The Education Code does not distinguish between levels
of truancy, leaving the potential for parents of
children who have missed 5 days to be considered as
liable as parents of children who have missed 50 days
for failing to ensure access to education. The most
severe consequence that a parent can receive under the
Education Code is an infraction conviction and a fine.
(Education Code Section 48293)
Second, the Penal Code's silence on the issue of
truancy leaves prosecutors and courts with the
unhelpful option of focusing on whether the child is
delinquent as a result of missing school, rather than
focusing on the parents' failure to provide a basic
need. Parents who allow their young children to have
chronic levels of truancy are neglecting their child's
needs, regardless of whether that child demonstrates
delinquent behavior. Failing to educate a child is an
issue of neglect, just like failing to feed or clothe
them.
Finally, when prosecutors do invoke "contributing to
the delinquency of a minor" to bring misdemeanor
charges against parents of severely truant children,
criminal courts have widely varying responses to these
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charges. Some courts take a punitive approach that
may levy a fine or jail time on the parent but may not
result in the return of the child to school, while
others may not take these charges seriously, given the
gravity of other criminal offenses being addressed,
and may throw out the cases with no changed
circumstances for the child. . . .
2. What This Bill Would Do
As explained in detail above, this bill would do the following:
Enact a discrete new misdemeanor for parents of K-8
children where the child is a "chronic truant," subject to
a fine up to $2,000 or by county jail up to one year, or
both; and
Authorize courts to establish a deferred entry of
judgment program to handle cases involving parents or
guardians of elementary school pupils who are chronic
truants, with specified features.
This bill is contingent upon the passage of SB 1148 (Alquist),
which would enact the definition of "chronic truant" employed by
this bill.
3. "Chronic Truant"
As noted above, this bill is contingent upon the passage of
Senator Alquist's bill, SB 1148, which as amended April 6, 2010,
would provide the following definition of chronic truancy:
Any pupil subject to compulsory full-time education or
to compulsory continuation education who is absent
from school without valid excuse for 10 percent or
more of the schooldays in one school year, from the
date of enrollment to the current date, is deemed a
chronic truant, provided that the appropriate school
district officer or employee has complied with
Sections 48260, 48260.5, 48261, 48262, 48263, and
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48291. (emphasis added.)
The analysis of SB 1148 prepared by the Senate Committee on
Education sets forth the following summary of relevant law in
the Education Code:
Current law:
1) Defines a truant as a pupil subject to
compulsory full-time education who is absent without
valid excuses three full days in one school year, or
tardy or absent for more than any 30-minute period on
three occasions, or any combination. (Education Code
48260.)
2) Requires a truant to be reported to the
attendance supervisor or to the superintendent of the
school district. (EC 48260.)
3) Requires the school district to notify the
pupil's parent by mail upon a pupil's initial
classification as a truant about basic information,
including that the parent is obligated to compel the
pupil to attend school, may be guilty of an infraction
and subject to prosecution, and that the pupil may be
subject to penalties. (EC 48260.5.)
4) Requires that any pupil who has once been
reported as a truant and who is again absent or tardy
from school without a valid excuse for one day to
again be reported as a truant to the attendance
supervisor or district superintendent. (EC 48261.)
5) Defines a habitual truant as any pupil who has
been reported as a truant three or more times per
school year (absent or tardy at least 5 days). A
pupil may not be deemed habitually truant unless an
appropriate district officer or employee had made a
conscientious effort to hold at least one conference
with a parent and the pupil, after the filing of
either a truancy report to the attendance supervisor
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or district superintendent. (EC 48262.)
6) Authorizes a habitually truant pupil to be
referred to a school attendance review board (SARB) or
to the probation department for services. If the SARB
or probation officer determines that available
community services can resolve the problem, the pupil
or pupil's parents shall be directed to make use of
those services. If it is determined that services
cannot solve the problem, or if the pupil and/or
parent have failed to respond to directives, the SARB
may notify the district attorney or probation officer.
(EC 48263.)
7) Establishes a truancy mediation program
whereby the district attorney or probation officer may
request the parents and the pupil attend a meeting to
discuss the possible legal consequences of the child's
truancy. (EC 48260.6 and 48263.5.)
8) Authorizes schools to require any minor who is
reported as a truant to attend makeup classes during
the weekend and provides that truants are subject to
the following:
a) The pupil may be given a written
warning by a peace officer the first time a
truancy report is required.
b) The pupil may be assigned by the
school to an afterschool or weekend study
program upon the second truancy report.
c) The pupil shall be classified a
habitual truant and may be referred to, and
required to attend, an attendance review board
or a truancy mediation program upon the third
truancy report.
d) The pupil shall be within the
jurisdiction of the juvenile court, which may
adjudge the pupil to be a ward of the court upon
the fourth truancy report. (EC 48264.5.)
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4. Contributing to the Delinquency of a Minor; Truancy
As noted above, under current law, parents and guardians can be
prosecuted for allowing their children to be truant under Penal
Code section 272, which penalizes contributing to the
delinquency of a minor. Witkin explains:
P.C. 272 was amended in 1988 to provide that under the
statute, a parent or legal guardian of a person under
age 18 has a duty "to exercise reasonable care,
supervision, protection, and control" over the minor.
In Williams v. Garcetti (1993) 5 C.4th 561, . . . a
challenge to this provision as unconstitutionally
vague and overbroad was rejected. The court declined
to decide whether the amendment enlarged or merely
clarified the scope of parents' criminal liability,
because in either case the inquiry is the same:
"Whether a parental duty of 'reasonable care,
supervision, protection, and control' is sufficiently
certain to meet constitutional due process
requirements. We conclude that it is because it
incorporates the definitions and the limits of
parental duties that have long been a part of
California dependency law and tort law."
(a) Parents' legal responsibilities for the care and
protection of their children are well established and
defined, and Welf.C. 300 provides guidelines that are
sufficiently specific to define the parental duty of
care and protection.
(b) The parental duty of supervision and control
focuses on the child's actions and their effect on
third persons. Prior to the 1988 amendment, P.C. 272,
read in conjunction with Welf.C. 601 and 602, imposed
misdemeanor liability on a person whose act or
omission "causes or tends to cause or encourage" a
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child to engage in delinquent acts. Implicit in the
statutory language was the duty to make a reasonable
effort to prevent the child from so doing.
(c) "The amendment here at issue provides more
explicitly that parents violate section 272 when they
omit to perform their duty of reasonable 'supervision'
and 'control' and that omission results in the child's
delinquency. Therefore, the Legislature must have
intended the 'supervision' and 'control' elements of
the amendment to describe parents' duty to reasonably
supervise and control their children so that the
children do not engage in delinquent acts."
(d) Parents' duty to supervise and control their
children, and tort liability for breach of that duty,
have long existed in California; "supervision" and
"control," as used in the 1988 amendment, are
consistent with that duty. "Therefore, we understand
the amendment to describe the duty of reasonable
restraint of and discipline for a child's delinquent
acts by parents who know or should know that their
child is at risk of delinquency and that they are able
to control the child
(e) This duty of reasonable supervision and control is
sufficiently certain even though it cannot be defined
with precision. Liability under P.C. 272 requires
criminal negligence, i.e., aggravated, culpable,
gross, or reckless conduct. These heightened
standards alleviate any uncertainty as to what
constitutes reasonable supervision or control.
Liability attaches only if parents know or reasonably
should know that their child is at risk of
delinquency. And parents who reasonably try but are
unable to control their children are not criminally
negligent. . . . <4>
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<4> 2 Witkin Cal. Crim. Law Sex Crimes 154 (some citations
omitted).
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With respect to truancy, the Garcetti case noted in Witkin
stated:
The terms "supervision" and "control" suggest an
aspect of the parental duty that focuses on the
child's actions and their effect on third parties.
This aspect becomes plain when the amendment is read
in conjunction with Welfare and Institutions Code
sections 601 and 602. . . . Subdivision (b) of
section 601 brings within the jurisdiction of the
juvenile court minors for whom "the available public
and private services are insufficient or inappropriate
to correct the habitual truancy of the minor, or to
correct the minor's persistent or habitual refusal to
obey the reasonable and proper orders or directions of
school authorities . . .." Section 602 brings within
the jurisdiction of the juvenile court any minor who
"violates any law of this state or of the United
States or any ordinance of any city or county of this
state defining crime . . .."<5>
The author and/or the Committee may wish to describe how this
bill would affect or work in conjunction with current law.
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<5> Williams v. Garcetti (1993) 5 Cal. 4th 561, 570-571).
5. Deferred Entry of Judgment Program; Diversion
This bill would authorize a deferred entry of judgment program
for K-8 chronic truancy cases, as detailed above. Current law,
enacted in 1988, authorizes diversion under certain
circumstances involving contributing to the delinquency of a
minor. Unlike deferred entry of judgment, where defendants are
required to plead guilty in exchange for the future dismissal of
the charges once they have complied with all the terms and
conditions required by the court, a diversion model does not
require defendants to plead guilty in order to get into the
program. The author and/or the Committee may wish to discuss
the differences of these two models with respect to the persons
affected by this measure.
IS THE DEFERRED ENTRY MODEL BETTER THAN A DIVERSION MODEL FOR
THE PERSONS AND PROBLEM TARGETED BY THIS BILL?
6. San Francisco District Attorney's Office Program
This Committee conducted an informational hearing earlier this
year on issues surrounding truancy, especially with respect to
its impact on public safety. The district attorneys for San
Bernardino and San Francisco, along with other informed experts,
underscored the importance of addressing truancy, especially in
the lower grades. The San Francisco District Attorney, sponsor
of this bill, describes the San Francisco program which is the
basis of this bill as follows:
The District Attorney's Office works with the San
Francisco Unified School District (SFUSD) to employ a
three-pronged approach to combat truancy.
Stage 1: Education
We engage in public education and outreach. We use
billboards, media and district-wide forums to educate
parents about truancy and encourage students to stay
in school. The DA also sends letters to every public
school parent describing
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the problem of truancy and the consequences, and
urging parents to keep children in school.
Stage 2: Intervention
When children become habitually truant, parents are
asked to attend school attendance review board (SARB)
meetings. We also host parent mediations to outline
the steps parents must take to get their children in
school and avoid more
serious consequences. The DA's Office also hosts
collaborative meetings with various city agencies and
service providers to address the needs of parents with
habitually truant students.
Stage 3: Prosecution
Parents of truant children who do not change course in
Stage 2 are subject to prosecution. Parents must
report to a specialized Truancy Court we created that
combines close court monitoring with tailored family
services. We have SFUSD and Children and Family
Services on hand to resolve underlying issues such as
transportation, unstable housing, substance abuse,
mental health, neglect or unresolved special education
needs. Parents who are continually reluctant to send
their children to school are subject to fine or
imprisonment.<6>
***************
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<6> The Truancy Reduction Initiative: Getting Kids Back in
School (available online at: http://www.sfdistrictattorney
.org/pdfs/SFDA.truancybrochure.pdf.