BILL ANALYSIS �
AB 324
Page 1
Date of Hearing: February 21, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 324 (Buchanan) - As Amended: February 7, 2012
Policy Committee: Not
ApplicableVote:
Urgency: Yes State Mandated Local Program:
No Reimbursable:
SUMMARY
As passed by the Assembly , this bill required the Department of
General Services, when selecting locations for state-owned or
-leased buildings exceeding 10,000 square feet, to consider the
residential location of the workforce to be housed, and the
availability of transit service.
As passed by the Senate (31-0), this bill specifies that
juvenile offenders who have been adjudicated for an offense
requiring registration as a sex offender may be committed to
the CA Department of Corrections and Rehabilitation's Division
of Juvenile Facilities (DJF). Specifically this bill:
1)Stipulates the court may commit a juvenile to DJF for the
commitment of an offense requiring registration as a sex
offender, as referenced in Penal Code (PC) Section 290.008.
Doing so addresses the December 12, 2011 decision in In re
C.H., wherein the California Supreme Court ruled that current
law does not expressly authorize commitment of a juvenile sex
offender to the DJF if the offender was not adjudicated for a
Welfare and Institutions Code (WIC) 707 (b) offense (the
citation generally used to identify serious and violent
offenses).
2)Stipulates that wards ineligible for DJF commitment do not
include wards required to register as sex offenders.
3)Authorizes counties to contract with DJF to house wards who
were in DJF custody on Dec. 12, 2011, whose commitment was
recalled as a result of the C.H. case. (The state's intent is
to not charge the counties for such arrangements.)
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FISCAL EFFECT
1)Foregone GF savings in the range of $10 million per year for
about two years to continue housing 65 wards prohibited from
DJF placement pursuant to the C.H. ruling of December 12,
2011. (The proposed budget assumes these wards would be housed
at DJF.)
Since the 65 wards who were in DJF custody as of Dec. 12, 2011
are no longer DJF-eligible, and are in various stages of
release to local custody and care, this bill authorizes
counties to contract with the state to house these wards. DJF
would not charge the counties for these contracts. Based on a
per capita cost of $163,000 and an average of 24 months in DJF
custody, if counties contracted with the state for all 65
wards, the cost would be about $10 million per year for two
years.
2)Unknown out-year annual GF costs in the range of $7 million to
house PC 290.008 wards, assuming 22 commitments per year and a
two-year average length-of-stay. (This assumes the budget
proposal to not charge the counties $125,000 per DJF
commitment, as part of the January 2012 budget trigger cuts,
is maintained.)
3)Should the bill fail, there will be analogous annual
nonreimbursable costs to local governments to place these
wards in appropriate local settings/programs if DJF is not an
option.
4)Unknown, likely minor, GF trial court savings to the extent
restoring DJF as an option for PC 290.008 wards results in
fewer adult filings for offenders who, prior to C.H., would
have been charged as juveniles and housed in DJF.
COMMENTS
1)Rationale . Sponsored by the CA District Attorneys
Association (CDAA) and the CA Probation Officers
Association (CPOC), 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).
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According to the author, to ensure that juvenile
offenders who have committed sex offenses remain eligible
for DJF commitment, current law must be amended to
clarify the intent of the Legislature in enacting
juvenile justice realignment in 2007. AB 324 clarifies
what most stakeholders and practitioners understood to be
the law after juvenile realignment: that a juvenile
offender with either a WIC section 707(b) offense or a PC
section 290.008(c) sex offense is eligible for DJF
commitment.
2)Background . In 2007, SB 81 and SB 191 (juvenile offender
realignment) were enacted to restrict DJF eligibility to the
most serious juvenile offenders, so-called 707(b) offenders.
Following enactment of SB 81 and SB 191, WIC 731 specified
that only 707(b) offenses were eligible for DJF commitment,
while WIC 733 specified who was ineligible for DJF, including
wards who have not committed a 707(b) offense, "Unless the
offense is a sex offense set forth in subdivision (c) of
Section 290.008 of the Penal Code." (PC 290.008 references
registerable sex offenses).
While legislative analyses of SB 81 and SB 191 clearly and
explicitly state the Legislature did not intend to exclude any
registerable sex offenders from DJF eligibility, the CA
Supreme Court, reversing the judgment of the Court of Appeal,
ruled the grammatical construction of the two sections trumped
the contention of the Attorney General that the intent of the
Legislature was to include all registerable sex offenses
(Penal Code 290.008), and that as a result, only a ward who
has committed a 707(b) offense may be committed to the DJF.
3)Sexual offenses requiring registration as a sex offender that
are not included in WIC 707(b) include assault with intent to
commit a sexual offense, non-forcible rape, sodomy and oral
copulation, continuous sexual abuse of a child, and lewd or
lascivious acts with a minor. Of the 65 juvenile offenders
currently housed by DJF who were committed for a non 707(b)
offense, 51 were committed for non-forcible lewd and
lascivious acts with a minor.
4)In re C.H. involved a 13-year-old offender who admitted
molesting his three-year-old sister and two other siblings. He
was adjudicated under PC 288(a) and placed on probation. After
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four probation violations for failure to comply with program
placement rules, including 90 days in juvenile hall custody,
the juvenile court committed C.H. to DJF and its sex offender
program. C.H. appealed the juvenile court order, but the Court
of Appeal rejected the claim that C.H. was ineligible for DJF
commitment because PC 288(a) was not listed in WIC 731.
The CA Supreme Court, however, reversed the Court of Appeal,
stating, "The question before us, however, is one of statutory
construction of two provisions with a plain meaning - not one
of policy choice. Our holding must be based on how sections
731(a)(4) and 733((c) are written, not on our view of what
could or should have been enacted. Needless to say, the
Legislature is free to reconsider the policy set out in the
current statutes if it wishes to do so."
5)Status of wards affected by 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 15, 13 wards have been
removed from DJF to their county of commitments. Of the 65
wards currently at issue, 57 are currently over the age of 17.
The average age at commitment was 16. Of 170 sex offenders
currently housed in DJF, 38% are subject to C.H.
6)Support includes, CDAA, CPOC, SEIU Local 1000 and the Peace
Officers Research Association of California (PORAC).
7)Opposition includes the CA Public Defenders Association (CPDA)
and CA Attorneys for Criminal Justice (CACJ), who contend
several of the offenses addressed by this bill should not be
eligible for DJF commitment. According to CPDA, "We contend
that there are two categories of offenses, which are included
in the list of 290.008 registrable 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
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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)."
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081