BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 493 (Perea)
As Amended June 15, 2012
Hearing date: July 3, 2012
Health and Safety, Penal, and
Welfare and Institutions Codes
AA:mc
REGISTERED SEX OFFENDERS:
COMMUNITY CARE FACILITIES FOR CHILDREN
HISTORY
Source: Author
Prior Legislation: SB 583 (Hollingsworth) - Ch. 55, Stats. 2009
AB 2593 (Adams) - 2008, held on Senate
Appropriations Suspense
Support: First 5 Fresno County; California Youth Connection;
Fresno Council on Child Abuse
Prevention; American Federation of State, County and Municipal
Employees, AFL-CIO; County Welfare Directors Association of
California
Opposition:None known
Assembly Floor Vote: Not Applicable
KEY ISSUE
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SHOULD LOCAL LAW ENFORCEMENT AND SOCIAL SERVICE AGENCIES BE
MANDATED TO MAKE SPECIFIED CHECKS TO DISCOVER IF REGISTERED SEX
OFFENDERS ARE RESIDING, WORKING OR VOLUNTEERING IN COMMUNITY
CARE FACILITIES FOR CHILDREN, AS SPECIFIED?
PURPOSE
The purpose of this bill is to 1) enact a new Penal Code
misdemeanor prohibiting persons who are required to register as
sex offenders from residing, working or volunteering in
specified community care facilities for children, as specified;
2) require local law enforcement to check whether a person who
is registering as a sex offender is in violation of these
residence and employment restrictions, notify the registrant if
they are in violation, "take appropriate law enforcement action"
if the person registers at a prohibited residence or place of
employment, and notify social services of the prohibited
registration, as specified; 3) require the Department of Social
Services ("DSS") to share information concerning community care
facilities for children with law enforcement entities which
register sex offenders, as specified; and 4) require peace
officers from DSS to compare the residence and employment
addresses of registered sex offenders against the addresses of
specified community care facilities for children at least
quarterly, and to take "appropriate action" when matches are
discovered, as specified.
Current law generally requires persons convicted of enumerated
sex offenses to register within five working days of coming into
a city or county, with specified law enforcement officials in
the city, county, or city and county where he or she is
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domiciled, as specified.<1> (Penal Code � 290.)
Current law provides that no person who is required to register
as a sex offender because of a conviction for a crime where the
victim was a minor under 16 years of age shall be an employer,
employee, or independent contractor, or act as a volunteer with
any person, group, or organization in a capacity in which the
registrant would be working directly and in an unaccompanied
setting with minor children<2> on more than an incidental and
occasional basis or have supervision or disciplinary power over
minor children. This subdivision shall not apply to a business
owner or an independent contractor who does not work directly in
an unaccompanied setting with minors. (Penal Code � 290.95(c).)
Current law provides that every person required to register as a
sex offender who applies for or accepts a position as an
employee or volunteer with any person, group, or organization
where the registrant would be working directly and in an
unaccompanied setting with minor children on more than an
---------------------------
<1> Penal Code section 290(b) provides: "Every person described
in subdivision (c) for the rest of his or her life while
residing in, or, if he or she has no residence, while located
within California, or while attending school or working in
California, as described in section 290.002 and 290.01, shall be
required to register with the chief of police of the city in
which he or she is residing, or if he or she has no residence,
is located, or the sheriff of the county if he or she is
residing, or if he or she has no residence, is located, in an
unincorporated area or city that has no police department, and,
additionally, with the chief of police of a campus of the
University of California, the California State University, or
community college if he or she is residing, or if he or she has
no residence, is located upon the campus or in any of its
facilities, within five working days of coming into, or changing
his or her residence or location within, any city, county, or
city and county, or campus in which he or she temporarily
resides, or, if he or she has no residence, is located."
<2> For purposes of this section, "working directly and in an
unaccompanied setting" includes, but is not limited to,
providing goods or services to minors.
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incidental and occasional basis or have supervision or
disciplinary power over minor children, shall disclose his or
her status as a registrant, upon application or acceptance of a
position, to that person, group, or organization. (Penal Code �
290.95(a).)
Current law provides that every person required to register as a
sex offender who applies for or accepts a position as an
employee or volunteer with any person, group, or organization
where the applicant would be working directly and in an
accompanied setting with minor children, and the applicant's
work would require him or her to touch the minor children on
more than an incidental basis, shall disclose his or her status
as a registrant, upon application or acceptance of the position,
to that person, group, or organization. (Penal Code �
290.95(b).)
Current law prohibits the issuance of a license to operate or
manage a community care facility to a person required to
register as a sex offender, as specified. (Health and Safety
Code � 1522.) In addition to the applicant, this section is
applicable to criminal convictions of the following persons:
(A) Adults responsible for administration or direct
supervision of staff.
(B) Any person, other than a client, residing in the
facility.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or
home health aide, as specified.
(D) Any staff person, volunteer, or employee who has contact
with the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving
in like capacity.
(F) Additional officers of the governing body of the
applicant, or other persons with a financial interest in the
applicant, as determined necessary by the department by
regulation. (Id.)
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Current law provides that any person required to register as a
sex offender shall disclose this fact to the licensee of a
community care facility before becoming a client of that
facility, as specified. Any person or persons operating a
community care facility that accepts as a client an individual
who is required to register as a sex offender shall confirm or
deny whether any client of the facility is a registered sex
offender in response to any person who inquires whether any
client of the facility is a registered sex offender, as
specified. (Health and Safety Code � 1522.01.)
Current law requires that individuals who are volunteer
candidates for mentoring children in foster care settings, as
defined by DSS, shall be subject to a criminal background
investigation prior to having unsupervised contact with the
children. The criminal background check shall be initiated and
conducted pursuant to either Sections 1522 and 1522.1 or Section
1596.603, as applicable. Sections 1522 and 1522.1 may be
utilized by a county social services agency in cooperation with,
or as a component of, a licensed foster family agency. (Health
and Safety Code � 1522.06.)
Current law provides that any person who violates the California
Community Care Facilities Act, as specified, or who willfully or
repeatedly violates any rule or regulation promulgated under the
Act, is guilty of a misdemeanor, as specified, and provides that
operation of a community care facility without a license shall
be subject to a summons to appear in court. (Health and Safety
Code � 1540.)
Current law authorizes the district attorney of every county,
and city attorneys in those cities which have city attorneys who
have jurisdiction to prosecute misdemeanors to, upon their own
initiative or upon application by the state department or its
authorized representative, institute and conduct the prosecution
of any action for violation within his or her county of any
provisions of the California Community Care Facilities Act, as
specified. (Health and Safety Code � 1543.)
This bill would enact a new misdemeanor, providing that a person
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required to register as a sex offender "shall not reside, except
as a client, and shall not work or volunteer, in any of the
following, unless a juvenile court has waived the prohibition in
accordance with (the provisions of this bill, as described
below):
1) A foster home or facility that is licensed by the State
Department of Social Services or a county child welfare
services agency.
2) A certified home of a foster family agency.
3) A home or facility that receives a placement of a child
who has been, or may be, declared a dependent child of the
juvenile court pursuant to Section 300 of the Welfare and
Institutions Code.
This bill would authorize a court to waive this prohibition "if
both of the following are true:
(a) The residence is that of a noncustodial parent, a
relative, or a nonrelative extended family member who
receives a placement of a child who has been, or may
be, declared a dependent child of the juvenile court
under Section 300.
(b) The court makes a finding that the placement of
the child in the residence is in the best interest of
the child.
Current law requires that the registration consist of all of the
following:
(1) A statement in writing signed by the person, giving
information as shall be required by the Department of Justice
and giving the name and address of the person's employer, and
the address of the person's place of employment if that is
different from the employer's main address.
(2) The fingerprints and a current photograph of the person
taken by the registering official.
(3) The license plate number of any vehicle owned by,
regularly driven by, or registered in the name of the person.
(4) Notice to the person that, in addition to the
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requirements of the Act, he or she may have a duty to register
in any other state where he or she may relocate.
(5)
Copies of adequate proof of residence, which shall be limited to
a California driver's
license, California identification card, recent rent or utility
receipt, printed personalized
checks or other recent banking documents showing that person's
name and address, or any
other information that the registering official believes is
reliable. If the person has no
residence and no reasonable expectation of obtaining a residence
in the foreseeable
future, the person shall so advise the registering official and
shall sign a statement
provided by the registering official stating that fact. Upon
presentation of proof of
residence to the registering official or a signed statement that
the person has no residence, the
person shall be allowed to register. If the person claims that
he or she has a residence but
does not have any proof of residence, he or she shall be allowed
to register but shall
furnish proof of residence within 30 days of the date he or she
is allowed to register.
(Penal Code � 290.015.)
This bill would add a new section to the Penal Code to require a
county sheriff, a chief of police of a city or a campus of the
University of California, the California State University, or
community college, or any other person or entity that registers
a person required to register pursuant to the Sex Offender
Registration Act to do all of the following at the time of
registration:
(a) Determine whether the person required to register
under the Sex Offender Registration Act is registering
at a residence or place of employment that is
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prohibited by Section 3003.6,<3> by using the
information provided under Section 10613.3 of the
Welfare and Institutions Code and any additional
information available for this purpose.
(b) Notify the person required to register under the
Sex Offender Registration Act when his or her
registered residence or place of employment would be
prohibited by Section 3003.6.
(c) Take appropriate law enforcement action if it has
jurisdiction or notify an appropriate law enforcement
entity with jurisdiction if, after being notified
under subdivision (b), the person registers at a
residence or place of employment that is prohibited by
Section 3003.51.
(d) Immediately, or as soon as practicably possible,
report in writing or by telephone, facsimile, or
electronic transmission to the county child welfare
agency and the Department of Social Services regarding
the registration of a person at a residence or place
of employment at which a child who has been, or may
be, declared a dependent of the court pursuant to
Section 300 of the Welfare and Institutions Code
resides. If a law enforcement agency makes a report
by telephone, the agency shall mail, or send by
facsimile or electronic transmission, a written report
within 36 hours of its telephone report.
Current law generally requires the director of DSS to publish a
list covering all licensed child
day care facilities, other than small family day care homes, and
the services for which each facility has been licensed or issued
a special permit, as specified. (Health and Safety Code
� 1596.86.) Current law excludes from these lists certain
information concerning small family day care homes, except as
specified. (Id.)
This bill would revise this provision to expressly authorize DSS
to share this information with "a local law enforcement agency
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<3> This cross-reference is to the new misdemeanor this bill
would create.
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for the purpose of carrying out the duties" described above.
This bill would require the State Department of Social Services
to provide, no later than January 1, 2014, to each county
sheriff, each chief of police of a city or a campus of the
University of California, the California State University, or
community college, and every other person or entity that
registers a person required to register under the Sex Offender
Registration Act, the addresses, or other equivalent data, of
all of the following within the jurisdiction of the sheriff,
chief of police, or other person or entity:
(a) Each foster home or facility licensed by the
State Department of Social Services or a county child
welfare agency.
(b) Each home certified by a foster family agency.
(c) Each home or facility whose address is not
otherwise provided under subdivision (a) or (b) that
has been approved to receive a placement of a child
who has been, or may be, declared a dependent child of
the juvenile court under Section 300.
This bill would require peace officers from the State Department
of Social Services to, "no less frequently than each calendar
quarter, compare the residence and employment addresses of
persons required to register under the Sex Offender Registration
Act . . . against the addresses of all of the following:
(1) Each foster home or facility licensed by the
department or a county child welfare agency.
(2) Each home certified by a foster family agency.
(3) Each home or facility that has been approved to
receive a placement of a child who has been, or may
be, declared a dependent child of the juvenile court
under Section 300.
This bill would require DSS to "take appropriate action as
authorized by law to further the purposes of Section 3003.6 of
the Penal Code" if peace officers from DSS determine that an
address specified in one of the enumerated paragraphs above
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matches the residence or employment address of a person required
to register as a sex offender.
This bill also would require the DSS peace officer to
"immediately, or as soon as practicably possible, make a report
in writing or by telephone, facsimile, or electronic
transmission to the appropriate county child welfare agency and
the Department of Social Services of the match so that the
agency may evaluate what action or actions, if any, would be in
the best interest of the child. If a peace officer makes a
report by telephone, the officer shall mail or send by facsimile
or electronic transmission a written report within 36 hours of
his or her telephone report."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
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the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
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167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Stated Need for This Bill
The author states:
According to a recent report by the State Auditor,
CWS: California Can and Must Provide Better Protection
and Support for Abused and Neglected Children (October
2011), when comparing the addresses of individuals in
the Sex Offender Registry with addresses of DSS and
counties' licensed facilities and foster homes, they
found over 1,000 address matches, nearly 600 of which
are considered to be high risk. The auditor provided
the address matches to DSS and, after completing over
800 investigations, it found registered sex offenders
inappropriately living or present in several foster
homes and other licensed facilities.
In October 2011, DSS indicated that it had begun legal
actions against eight licensees and had issued 36
immediate exclusion orders barring individuals from
licensed facilities. In six of the eight legal
actions, DSS found registered sex offenders living or
present in licensed facilities. Immediate exclusions
were issued for several reasons including a sex
offender owning the property, a sex offender's spouse
being the licensee, a sex offender living at a
licensee's personal residence, and a sex offender
picking up mail at the facility.
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Under current law, individuals seeking a license to
operate a community care facility or others known to
be living or working in licensed facilities or CWS
placements must go through numerous types of
backgrounds checks and would be prohibited from living
or working in these locations if they had been
convicted of a registrable sex offense. However,
according to the State Auditor, state laws could be
strengthened to better ensure that registered sex
offenders do not reside in licensed children's
facilities or CWS placements.
AB 493 would explicitly prohibit registered sex
offenders from living or working in licensed
children's facilities or Child Welfare Services (CWS)
placements.
2. What This Bill Would Do
As explained in detail above, this bill would enact a set of
mandated checks by law enforcement and social service agencies
in an attempt to ensure that registered sex offenders are not
residing, working or volunteering at community care facilities
for children. Specifically, this bill would do the following:
Require peace officers from DSS to compare residence and
employment addresses of registered sex offenders against
licensed foster homes or facilities, homes certified by a
foster family agency, and each home or facility approved to
receive placement of a dependent child, as specified, and
to follow up on any matches, as specified;
Require DSS, no later than January 1, 2014, to provide
entities responsible for registering sex offenders the
addresses, or other equivalent data, of foster homes or
facilities, homes certified by a foster family agency, and
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each home or facility approved to receive placement of a
dependent child, as specified, in the registering agency's
jurisdiction, as specified;
Require DSS to make lists of licensed child day care
facilities available to local law enforcement agencies for
purposes related to this bill, as specified; and
Require law enforcement agencies which register sex
offenders to determine if the registering person is
registering at a residence or place of employment
prohibited under this bill, as specified; notify
registrants if they are violating the residence or
employment restriction of this bill; take "appropriate law
enforcement action" if the registrant in fact registers at
the locales prohibited by this bill; and report the
violating registration to social services, as specified.
Enact a new section in the Penal Code describing a
misdemeanor which expressly prohibits persons who are
required to register as a sex offender from residing
(except as a client), working, or volunteering in any of
the following, unless a juvenile court has waived the
prohibition:<4>
1) A foster home or facility that is licensed by the State
Department of Social Services or a county child welfare
services agency.
2) A certified home of a foster family agency.
3) A home or facility that receives a placement of a child
who has been, or may be, declared a dependent child of the
juvenile court pursuant to Section 300 of the Welfare and
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<4> The bill would authorize a court to waive this prohibition
if both of the following are true: (a) The residence is that of
a noncustodial parent, a relative, or a nonrelative extended
family member who receives a placement of a child who has been,
or may be, declared a dependent child of the juvenile court
under Section 300; and (b) The court makes a finding that the
placement of the child in the residence is in the best interest
of the child.
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Institutions Code.
3. Bureau of State Audits
As noted by the author, this bill is in response to an October
2011 report by the State Auditor, Child Welfare Services,
California Can and Must Provide Better Protection and Support
for Abused and Neglected Children. That report states in part:
. . . Social Services could make better use of the
Department of Justice's (Justice) Sex and Arson
Registry (sex offender registry) to ensure that sex
offenders are not living or working among children in
the CWS system. We compared the addresses of sex
offenders in this registry with the addresses of
Social Services' and county's licensed facilities, as
well as the addresses of CWS placements, and found
over 1,000 address matches, nearly 600 of which are
high risk and in need of immediate investigation.
. . .
To ensure that vulnerable individuals, including
foster children, are safe from sex offenders, Social
Services should complete a followup on any remaining
address matches our office provided in July 2011 and
take appropriate actions, as well as relay information
to Justice or local law enforcement for any sex
offenders not in compliance with registration laws.
Social Services should conduct regular address
comparisons using Justice's sex offender registry and
its Licensing Information System and CWS/CMS. If
Social Services believes it needs additional resources
to do so, it should justify and seek the appropriate
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level of funding. . . . <5>
In response to this audit the Department of Social Services
stated in part:
CDSS agrees that address comparison provides an
additional protection for vulnerable clients in care,
and agrees that prevention should be part of the
protection as noted by the BSA later in the report.
There are many key partners within the community of
individuals and agencies responsible for the
prevention and detection of danger to clients in care,
including CDSS and the counties.
We are concerned, however, that performing matches
against every known sex offender address may not be
the most effective means of prevention and ensuring
protection. The process involved in this audit
required CDSS and counties to investigate every known
address of sex offenders, including addresses that
were years and in some cases, decades, out of date.
The California Sex and Arson Registry (CSAR) includes
effective dates of address and identifies active and
inactive addresses, and future processes to compare
addresses therefore should focus on information
technology solutions to minimize the need for staff to
manually search through and verify information. The
CDSS is exploring solutions that leverage technology
and key partners to create an efficient and effective
process to provide this additional protection.
The CDSS and its partners have not waited for an
information technology solution, however. The CDSS
this year began using an evidence-based "key
indicator" inspection tool that enables faster but
still-accurate in-person inspections and thus enables
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<5> Bureau of State Audits, Child Welfare Services, California
Can and Must Provide Better Protection and Support for Abused
and Neglected Children (October 2011 Report 2011-101.1)
(http://www.bsa.ca.gov/pdfs/reports/2011-101.1.pdf.)
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more of them to occur. Additionally, a number of
related preventative measures already have been
implemented:
Developed and implemented procedures to
check all new licensing applications against the
Megan's Law Website, and to check existing
facility addresses against the Megan's Law
Website prior to an inspection.
Installed additional California Law
Enforcement Telecommunication System (CLETS)
devices around the state to facilitate
investigations.
Reminded child care licensees about
statutory requirements to include references to
the Megan's Law Website and poster, on both the
Child Care Center notification of Parent's
Rights, and the Family Child Care Home
Notification of Parent's Rights form and poster.
Developed and implemented the MyCCL
Website to send timely alerts to licensees, and
published information about the Megan's Law
Website in the CDSS quarterly licensing
newsletters.
Issued a letter to all licensees
reminding them of their shared responsibility to
ensure the safety of the clients they serve and
to be more aware of their surroundings and
periodically check the Megan's Law Website.<6>
The audit issued by BSA last year is similar to an earlier
(2007) report entitled, "Sex Offender Placement: State Laws Are
Not Always Clear, and No One Formally Assesses the Impact Sex
Offender Placement Has on Local Communities." That report
stated in part:
We also found 49 instances in which the registered
addresses in Justice's database for sex offenders were
the same as the official addresses of facilities
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<6> Id.
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licensed by Social Services that serve children such
as family day care homes. State law requires that
before issuing a license to operate or manage certain
facilities that serve children, Social Services must
review the criminal history of all applicants seeking
licenses, their employees, and all adults residing at
these facilities.
. . .
To ensure that registered adult sex offenders are not
residing in licensed facilities that serve children,
Justice should provide Social Services with the
appropriate identifying information to enable Social
Services to investigate those instances in which the
registered addresses of sex offenders were the same as
child care or foster care facilities. If necessary,
Justice and Social Services should seek statutory
changes that would permit Justice to release
identifying information to Social Services so that it
may investigate any matches. . . .
In partial response to this audit, SB 583 (Hollingsworth) was
enacted in 2009 and DOJ now provides unique identifier
information as part of its sex offender registry information.<7>
GIVEN THE STEPS AND CONCERNS OUTLINED BY DSS ABOVE, ARE THE
STATUTORY PROVISIONS PROPOSED BY THIS BILL NECESSARY OR LIKELY
TO BE EFFECTIVE IN ACHIEVING THE PURPOSES OF THIS BILL?
WILL FURTHER CHANGES IN STATUTE ENSURE THAT CHILDREN IN
COMMUNITY CARE FACILITIES ARE SAFE FROM REGISTERED SEX
OFFENDERS, OR IS THIS POLICY OBJECTIVE MORE LIKELY TO BE
ACHIEVED THROUGH ADMINISTRATIVE LEADERSHIP AND IMPROVEMENTS IN
TECHNOLOGY?
4. Proposed New Penal Code Essentially Duplicates Existing Law
As explained in detail above, the conduct this bill would
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<7> See fn. 9, infra.
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criminalize as a new misdemeanor in the Penal Code appears to
already be proscribed under current law.<8> Under current law
registered sex offenders may not work, volunteer or reside in
community care facilities, and the violation of these provisions
is a misdemeanor under the Health and Safety Code. District
attorneys and city attorneys that prosecute misdemeanors can
prosecute these cases. Members of the Committee and the author
may wish to discuss if a duplicative statute is necessary, and
whether enacting a separate Penal Code statute could cause
confusion in the law. In this context, members also may wish to
discuss whether existing law is being used and, if not, whether
enacting a new, duplicative statute would result in better
enforcement of these laws. In addition, as noted in the
analysis of this bill prepared by the Senate Human Services
Committee, this provision also would appear to introduce
inconsistency in the law with respect to the current exemption
process. Members may wish to consider whether this could add
further confusion to the law which may not promote the goals
intended by the author.
SHOULD THE SECTIONS OF THIS BILL RELATING TO A NEW MISDEMEANOR
BE DELETED?
5. Practical Considerations
It is not clear how local law enforcement agencies that register
sex offenders would be able to comply with the requirements of
this bill. As drafted, this bill would appear to contemplate
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<8> In its response to the audit described above, DSS noted:
"CDSS agrees with this recommendation, but notes that laws
already exist that prohibit registered sex offenders from
working or residing in licensed children's facilities or CWS
placements. Existing laws further require anyone having routine
contact with a child in care to be fingerprint cleared. These
statutes also specify crimes, including crimes requiring
registration as a sex offender that permanently ban an
individual from a facility or contact situation. In addition,
licensees are accountable by jeopardizing their licenses or
through civil fines for allowing an unauthorized individual to
work or reside in a children's care arrangement."
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AB 493 (Perea)
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local registering officials determining, at the time of a
registration, whether a registrant is registering at a
prohibited place. It is not clear that existing databases -
from either the Department of Justice or the Department of
Social Services - would allow this checking to be done in "real
time" and electronically. Additionally, whether the checking is
done electronically (if possible) or manually, it is not clear
whether the cross-checking would be based on information shared
by DSS on a daily, weekly, monthly or other basis and, depending
upon how up-to-date the information is, how accurately it would
reflect matches as contemplated by this bill. Members and the
author may wish to discuss the practical capacity of local
registering agencies to fulfill the mandate proposed by this
bill, and whether the bill may impose a requirement that could
be very difficult for local law enforcement to meet.
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According to information obtained from the Department of Justice
("DOJ"), its California Justice Information Services ("CJIS")
Division maintains the law enforcement Megan's Law application,
where law enforcement agencies can locate information on sex
offender registrants in their jurisdictions and throughout
California. This application includes the "Additional Address
File" which contains addresses for sex offender registrants in
California. DOJ currently allows DSS access to this file.<9>
Under this bill, local agencies which register sex offenders
would be required to determine and notify the registrant when an
address supplied by a sex offender registrant is that of a
specified community care facility and therefore prohibited. To
capture this information, the existing Sex Registration/Change
of Address/Annual or Other Update form would need to be modified
to incorporate these additional fields. In addition, because
the CJIS is the main repository for all sex offender
registration information in California, members may wish to
consider the impact this bill would have on DOJ and CJIS in
particular.
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<9> Penal Code section 290.47 provides: "The Department of
Justice shall record the address at which a registered sex
offender resides with a unique identifier for the address . The
information for this identifier shall be captured
pursuant to Section 290.015 and the identifier shall consist of
a description of the nature of the dwelling, with the choices of
a single family residence, an apartment/condominium, a
motel/hotel, or a licensed facility. Each address and its
association with any specific registered sex offender shall be
stored by the department in the same database as the
registration data recorded pursuant to Section 290.015. The
department shall make that information available
to the State Department of Social Services or any other state
agency when the agency needs the information for law enforcement
purposes relating to investigative responsibilities relative to
sex offenders. This section shall become operative on January
1, 2012."
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GIVEN CURRENT TECHNOLOGY, DATABASES AND PRACTICES AT DSS AND
DOJ, WHAT WOULD BE THE FEASIBILITY AND IMPACT OF THIS BILL ON
LOCAL LAW ENFORCEMENT AGENCIES THAT REGISTER SEX OFFENDERS AND
DOJ?
6. Author's Amendment
The author's office has indicated the author intends to amend
this bill to strike its reference to "peace officers" who work
at DSS and replace it with "investigators," defined as "an
investigator at the Department of Social Services who has a
peace officer standing pursuant to Penal Code Section 13514.5."
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