BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 324|
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THIRD READING
Bill No: AB 324
Author: Buchanan (D)
Amended: 2/7/12 in Senate
Vote: 27 - Urgency
PRIOR SENATE VOTE NOT RELEVANT
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 2/9/12
AYES: Hancock, Anderson, Calderon, Harman, Price,
Steinberg
NO VOTE RECORDED: Liu
SENATE APPROPRIATIONS COMMITTEE : 7-0, 2/13/12
AYES: Kehoe, Walters, Alquist, Emmerson, Pavley, Price,
Steinberg
NO VOTE RECORDED: Lieu, Runner
ASSEMBLY FLOOR : Not relevant
SUBJECT : Juvenile offenders
SOURCE : California District Attorneys Association
Chief Probation Officers of California
DIGEST : This bill addresses the recent California
Supreme Court decision in In re C.H ., (2011) 53 Cal.4th 94,
by (1) expressly authorizing the commitment to the Division
of Juvenile Facilities (DJF) of juvenile offenders who have
been adjudicated to be wards of the juvenile court for a
registerable sex offense, as specified, and (2) authorizing
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DJF to enter into contracts with counties to furnish
housing to certain juvenile sex offenders committed to DJF,
as specified.
ANALYSIS : Current law generally authorizes the juvenile
court to order specified types of treatment for minors
adjudged to be delinquent wards of the court. (Welfare and
Institutions Code (WIC) Section 731)
Current statute authorizes the juvenile court to commit a
delinquent ward to the Department of Corrections and
Rehabilitation, DJF, if the ward has committed an offense
described in subdivision (b) of Section 707 and is not
otherwise ineligible for commitment to the division under
Section 733. (WIC Section 731(a)(4))
This bill revises this provision to expressly allow the
juvenile court to commit a delinquent ward to DJF if the
ward has committed a sex offense, as described in
subdivision (c) of Section 290.008 of the Penal Code.
Current law provides that a ward of the juvenile court who
meets any condition described below shall not be committed
to DJF:
(a) The ward is under 11 years of age.
(b) The ward is suffering from any contagious,
infectious, or other disease that would probably
endanger the lives or health of the other inmates of
any facility.
(c) The ward has been or is adjudged a ward of the court
pursuant to Section 602, and the most recent offense
alleged in any petition and admitted or found to be
true by the court is not described in subdivision (b)
of Section 707, unless the offense is a sex offense set
forth in subdivision (c) of Section 290.008 of the
Penal Code. This subdivision shall be effective on and
after September 1, 2007. (WIC Section 733)
This bill revises subdivision (c) of this section to
instead state, "The ward has been or is adjudged a ward of
the court pursuant to Section 602, and the most recent
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offense alleged in any petition and admitted or found to be
true by the court is not described in subdivision (b) of
Section 707, unless the offense is a sex offense set forth
in or subdivision (c) of Section 290.008 of the Penal Code.
?"
Current law authorizes DJF to enter into contracts with a
county to furnish diagnosis and treatment services and
temporary detention during a period of study to the county
for selected cases of persons eligible for commitment to
DJF, as specified. (WIC Section 1752.1)
Current law further authorizes DJF to enter into contracts
with a county to furnish temporary emergency detention
facilities and necessary services for persons under the age
of 18 years who are in the custody of the county probation
officer on a temporary basis when existing county juvenile
facilities are rendered unsafe or inadequate because of a
natural or manmade disaster, or when the continued presence
of the minor or minors in the county juvenile facilities
would, in the opinion of the judge of the juvenile court
having jurisdiction over the minor, of the chief probation
officer of the county, and of the director, present a
significant risk of violence or escape. (WIC Section
1752.15)
This bill authorizes the chief of the DJF, with approval of
the Director of the Department of Finance, to "enter into
contracts with any county of this state for the Division of
Juvenile Facilities to furnish housing to a ward who was in
the custody of the Division of Juvenile Facilities on
December 12, 2011, and whose commitment was recalled based
on both of the following:
(1) The ward was committed to the Division of Juvenile
Facilities for the commission of an offense described
in subdivision (c) of Section 290.008 of the Penal
Code.
(2) The ward has not been adjudged a ward of the court
pursuant to Section 602 for commission of an offense
described in subdivision (b) of Section 707."
This bill provides in statute that it "is the intent of the
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Legislature in enacting this act to address the California
Supreme Court's ruling in In re C.H. (2011) 53 Cal.4th 94."
Background: SB 81 (2007); In re C.H.
In 2007, as part of the Budget, the Legislature passed and
the Governor signed into law SB 81 (Senate Budget and
Fiscal Review Committee), Chapter 175. That bill included
provisions to tighten eligibility for commitment to DJF to
the most serious juvenile offenders. Due in part to this
"realignment" of the juvenile offender population, the DJF
population has dropped dramatically. At the time SB 81 was
implemented, there were 2,480 wards at DJF; last month,
there were 993.
Official analyses prepared by the Legislature at that time
unequivocally indicated that the Legislature did not intend
this change to exclude juvenile sex offenders from
eligibility for DJF commitment. Floor analyses for SB 81
in both houses stated in part:
Juvenile sex offenders are excluded from this change and
will not be impacted by this bill.
Similarly, AB 191 (Assembly Budget Committee), Chapter 257,
Statutes of 2007) was enacted in September of 2007 to
modify SB 81 including, as explained in the floor analysis,
to make:
? conforming changes to ensure that none of the juvenile
justice reforms contained in the SB 81 affect juveniles
adjudicated of a sex offense as set forth in paragraph
(3) of subdivision (d) of Section 290 of the Penal Code.
SB 81 amended WIC Section 731 to narrow the juvenile
court's authority to commit a juvenile delinquent to DJF to
those wards adjudicated to have committed a serious or
violent offense as described in WIC Section 707(b). SB 81,
which also recast WIC Section 733 to describe which
juvenile offenders are ineligible for commitment to DJF,
included the following, now contained in subdivision (c) of
WIC Section 733:
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(c) The ward has been or is adjudged a ward of the court
pursuant to Section 602, and the most recent offense
alleged in any petition and admitted or found to be true
by the court is not described in subdivision (b) of
Section 707, unless the offense is a sex offense set
forth in subdivision (c) of Section 290.008 of the Penal
Code. This subdivision shall be effective on and after
September 1, 2007. (Emphasis added.)
The C.H. case, decided on December 12, 2011, involved a
youthful offender who, in February of 2009, was committed
to DJF after unsuccessful programming efforts at the local
level "in order to enable him to participate in its sex
offender program." The commitment offense was Penal Code
Section 288(a), a registerable sex offense not described in
WIC Section 707(b).
The Court focused its analysis on WIC Section 731 and 733,
and reconciled their apparent inconsistent provisions
concerning juvenile sex offenders by concluding that the
language in Section 733 was intended to provide a more
"nuanced approach" authorizing DJF commitment for
non-707(b) juvenile sex offenders who had a previously
sustained petition for a 707(b) offense. Thus, the Court
concluded that a delinquent ward was eligible for DJF
commitment if the ward was being committed for a 707(b)
offense, or for a registerable sex crime if the ward had a
previous 707(b) offense in their history.
Noting that "only when a statute's language is ambiguous or
susceptible of more than one reasonable interpretation may
we turn to extrinsic aids to assist in interpretation," the
Court concluded under the circumstances presented by its
analysis "it is inappropriate to resort to the legislative
history ? to consider whether an otherwise undisclosed
legislative intent might be reflected." Accordingly, the
Court apparently did not consider the legislative intent
described in the floor analyses quoted above.
Background: Affected Population; Responses to the
Decision; Potential Consequences
Sixty-five juvenile offenders committed to DJF are affected
by the C.H . case. Most of these juvenile offenders - 51 -
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were adjudicated to have committed a non-forcible child
molestation crime (Penal Code Section 288(a).) All of
these offenders are subject to a maximum DJF jurisdiction
of 21 years of age. Two of these offenders - one age 21
and one age 22 - are being confined beyond their maximum
confinement age pursuant to the civil commitment provisions
contained in WIC Section 1800. Out of the 170 juvenile sex
offenders at DJF, almost forty percent of them are subject
to the C.H. decision.
In January, the Division of Juvenile Justice sent letters
to presiding judges of the juvenile court advising them of
the C.H. decision, providing them with a roster of youth
committed to DJF from their respective counties who may
have been ineligible for DJF commitment under the decision,
and to request that the court take appropriate action for
all cases determined by the court to be affected by C.H.
As of February 3rd, six wards have been removed from DJF to
their county of commitments, and at least three have been
recalled by the court and are awaiting further disposition.
The bill's sponsors submit that this bill is necessary and
urgent to not interrupt the sex treatment these wards are
receiving at DJF, and because counties do not have adequate
housing or programming capacity to address the needs of
these particular wards. The Chief Probation Officers of
California and the California District Attorneys
Association state in part:
If this measure is not approved, the sex offender
treatment being received by these wards would be
disturbed. Additionally, it appears that most counties
would be ill-prepared to house and treat these wards
locally.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2012-13 2013-14 2014-15 Fund
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Current DJF commitments No new state costs.
Potentially significant General
(65 wards) foregone savings of $1,400 to $1,850
per
10 wards retained at DJF; maximum one-
time foregone savings of $12,000
Prospective DJF Potential first-year costs up to
$600,General
commitments* annual ongoing costs up to $2,300.
Potential cost savings in averted
fitness General**/
hearings, jury trials, and
incarceration Local
* Annualized costs increase to $7.8 million if 2012-13
Governor's Budget proposal is enacted
**Trial Court Trust Fund
SUPPORT : (Verified 2/12/12)
California District Attorneys Association (co-source)
Chief Probation Officers of California (co-source)
Chief Probation Officers for the Counties of Mariposa,
Monterey, Sacramento, San Francisco, San Luis Obispo,
Santa Barbara, and Sutter
Peace Officers Research Association of California
Service Employees International Union, Local 1000
State Coalition of Probation Organizations
OPPOSITION : (Verified 2/12/12)
California Public Defenders Association
California Attorneys for Criminal Justice
Pacific Juvenile Division Center
ARGUMENTS IN SUPPORT : The author states in part:
In 2007, via the enactment of SB 81 and AB 191, the
Legislature narrowed the universe of juvenile offenders
that are eligible for commitment to the Division of
Juvenile Facilities (DJF). The intent of those bills was
to limit DJF commitments to juvenile offenders
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adjudicated for offenses under WIC section 707(b) or sex
offenses under PC section 290.008(c) (the successor
statute to PC section 290(d)(3)). This intent is
memorialized by Assembly and Senate Floor Analyses that
include statements such as: "Juvenile sex offenders are
excluded from this change and will not be impacted by �SB
81]" and "�AB 191] makes conforming changes to ensure
that none of the juvenile justice reforms contained in
the 2007 Corrections trailer bill affect juveniles
adjudicated of a sex offense as set forth in paragraph
(3) of subdivision (d) of Section 290 of the Penal Code."
In other words, these bills were not meant to exclude
sex offenders from commitment to DJF.
On December 12, 2011, the California Supreme Court ruled
that a juvenile offender may not be committed to DJF for
a sex offense described in PC section 290.008(c) unless
the juvenile has also been adjudicated for a current or
prior offense described in WIC section 707(b). The case
is In re C.H. (2011) 53 Cal.4th 94. The Supreme Court,
in making its ruling, read WIC sections 731 and 733 as
statutes determining eligibility and ineligibility,
respectively, for placements at DJF. According to the
Court, the plain language of WIC section 731 only allows
juvenile offenders with a WIC section 707(b) offense to
be committed to DJF. While WIC section 733 does not make
a minor with a sex offense ineligible, the Court held
that the lack of ineligibility does not make a minor
eligible for a DJF commitment.
This bill would clarify that a juvenile offender
adjudicated for a specified sex offense may be committed
to the DJF, regardless of whether the juvenile has also
been adjudicated for a current or prior offense under WIC
section 707(b). To ensure that juvenile offenders who
have committed sex offenses remain eligible for DJF
commitment, WIC sections 731 and 733 must be amended to
clarify the intent of the Legislature in enacting SB 81
and AB 191. AB 324 merely clarifies what most
stakeholders and practitioners understood to be the state
of the law after SB 81 and AB 191, that is, a juvenile
offender with either a WIC section 707(b) offense or a PC
section 290.008(c) sex offense is eligible for commitment
to DJF.
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AB 324 also creates a procedure whereby the limited class
of juvenile offenders affected by this ruling may be
housed at DJF pursuant to a contract with their
committing counties. If this measure is not approved,
the sex offender treatment being received by these wards
would be disturbed. Additionally, it appears that most
counties would be ill-prepared to house and treat these
wards locally. (Emphasis in original.)
ARGUMENTS IN OPPOSITION : The California Public Defenders
Association (CPDA), which opposes this bill, submits that
the class of sex offenses this bill would make eligible for
DJF commitment is too broad. CPDA argues in part:
We contend that there are two categories of offenses,
which are included in the list of 290.008 registerable
offenses which should not subject a juvenile to
commitment at DJF. The first is Penal Code section
647.6, a misdemeanor which prohibits annoying or
molesting a person under 18. The second is Penal Code
section 288(a) which most often involves minor touching
between either siblings, or intermarital families, or
relatives. Violations of Penal Code section 288(a) can
occur based on hugging, if the intent is to arouse that
person or child and includes touching over clothing. It
is important to note that there is no force involved in
288(a) offenses, for similar actions involving force are
charged as violating Penal Code section 288(b)(1). There
are myriad emotional, psychological, and behavioral
distinctions between juveniles with sexual behavior
problems and adult sex offenders. Accordingly, vastly
different treatment is recommended and proves successful
for juvenile offenders, who, it should be noted, are much
less likely to reoffend than adult offenders.
Specifically, evidence has shown that community based
treatment is far more successful for juvenile offenders
than institutional treatment (such as they would receive
at DJF.) This is in large part due to concerns regarding
"peer contagion" (i.e. juveniles with minor,
unsophisticated offenses (like so many of the 288 (a)'s)
being exposed in an institutionalized setting to more
sophisticated sexual offenders.) ("The Comprehensive
Approach to Sex Offender Management," The Center for
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Effective Policy, 2010.) In other words, committing
juvenile 288(a) offenders to DJF, may well lead to
unintended and detrimental consequences for juveniles who
otherwise would be very unlikely to reoffend, and the
communities into which they are ultimately released.
AB 324 presents a false construct, namely that only DJF
provides meaningful and effective sex offender treatment.
In January 2012, Governor Brown released his budget
blueprint which includes the entire elimination of all
DJF prisons for youthful offenders. Not only does annual
cost of housing a child in DJF approximate $200,000 per
child, but the Governor's proposal to eliminate DJF is
rooted in failed attempts to rehabilitate juvenile
offenders and improve public safety.
Meaningful sex offender treatment for child offenders can
and should take place in the community or in an
alternative residential placement, in programs that have
been evaluated for their effectiveness. Because it found
that C.H. was not statutorily eligible for DJF placement,
the California Supreme Court in In re C.H. expressly
declined to consider whether it was error to commit C.H.
to the DJF without evidence demonstrating probable
benefit to him from his commitment and/or without
adequately considering alternative placements. But
California's worsening budget woes and our obligation to
provide meaningful and effective treatment to children in
delinquency proceedings, even those charged with
committing sex offenses requires a real commitment to
treatment that most effectively utilizes precious
taxpayer dollars and is not focused on punitive
principles of retribution. ?
RJG:mw 2/14/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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