BILL ANALYSIS �
AB 1938
Page 1
Date of Hearing: April 1, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1938 (Hagman) - As Introduced: February 19, 2014
SUBJECT : STATUTE OF LIMITATIONS: TORT ACTIONS AGAINST WARDS AND
CRIMINALLY INSANE
KEY ISSUES :
1) SHOULD THE LAW THAT ALLOWS CRIME VICTIMS TO BRING A
CIVIL ACTION AGAINST THOSE CONVICTED OF SPECIFIED FELONIES
FOR UP TO TEN YEARS AFTER THE CONVICTED FELON IS DISCHARGED
FROM PAROLE BE EXPANDED TO INCLUDE ACTIONS AGAINST children
charged in juvenile court AND THOSE FOUND NOT GUILTY BY
REASON OF INSANITY?
2) ARE THERE SPECIAL CIRCUMSTANCES INVOLVING JUVENILE
DELINQUENCY CASES THAT MAY MITIGATE IN FAVOR OF POTENTIALLY
DIFFERENT TREATMENT UNDER THE BILL, SUGGESTING THE BENEFIT
OF STUDYING THAT PARTICULAR SCENARIO FIRST BEFORE EXPANDING
THE LAW IN THAT UNIQUE AREA?
SYNOPSIS
This bill has the laudable goal of trying to ensure that
perpetrators of horrific crimes do not profit from those crimes.
The bill seeks to do so by expanding dramatically the time
period for bringing a civil action against those who committed
these crimes as children or who are found not guilty of those
crimes by reason of insanity. Because of constitutional
limitations, victims cannot just take a criminal's profits from
selling his or her felonious tale. Instead, California enacted
a very long statute of limitations to allow crime victims to sue
defendants convicted of very serious crimes for damages within
10 years after release from prison. But that statute requires a
criminal conviction. Children who go through the juvenile court
and those found guilty by reason of insanity are not convicted
of a crime and, thus, today not subject to the extended statute
of limitations. This bill would subject wards of the juvenile
court and the criminally insane to the same extended civil
statute of limitations that applies to ordinary criminals.
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Almost all juveniles charged with the crimes for which the
extended statute of limitations applies are today already
charged as adults. The remaining children are either very young
or otherwise deemed fit for treatment in the juvenile justice
system, which seeks to rehabilitate young offenders, in addition
to punishing them. By subjecting these children to long-term
civil liability exposure that may interfere with their ability
to re-integrate into society, this bill might inadvertently
prevent them from going to college, obtaining lucrative
employment and becoming productive members of society. The
analysis therefore suggests, as an alternative to immediately
adding young offenders in juvenile court to the extended statute
of limitations, the Committee may conclude it would be helpful
first to secure a study of the potential impacts, both positive
and negative, of such an extended statute of limitations on
children in the juvenile justice system. While there is no
reported support for the bill, it is opposed by California
Attorneys for Criminal Justice who are particularly concerned
about the bill's impact on those found legally insane because of
their likely life-long mental disease and their inability to
properly participate in their defense in a civil case.
SUMMARY : Significantly extends the statute of limitations for
certain civil actions against juveniles and the criminally
insane. Specifically, this bill provides that the time for
commencement of an action for damages, against a defendant who
is either declared a ward of the court based upon the
defendant's commission of specified, serious felony offenses or
found not guilty of those same offenses by reason of insanity,
is within 10 years of the date on which the defendant is
released from custody.
EXISTING LAW :
1)Provides that, unless a longer period is prescribed, the time
for commencement of any civil action for damages against a
defendant based upon that person's commission of a felony
offense for which the defendant has been convicted is within
one year after judgment is pronounced. (Code of Civil
Procedure (CCP) Section 340.3(a).)
2)Provides that, notwithstanding #1), above, the time for
commencement of an action for damages against a defendant
based upon the defendant's commission of specified felony
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offenses for which the defendant has been convicted is within
10 years of the date on which the defendant is discharged from
parole. Specified offenses include: (a) murder or attempted
murder; (b) mayhem; (c) rape and other specified sexual
assault crimes; (d) any felony punishable by death or
imprisonment in the state prison for life or attempt to commit
such a felony; (e) exploding a destructive device or other
explosive, causing bodily injury, mayhem or with intent to
commit murder; or (f) kidnapping. (CCP Section 340.3(b)(1).)
3)Provides that the extended statute of limitations in #2),
above, does not apply if:
a) The defendant has received a certificate of
rehabilitation or a pardon;
b) Following a conviction for murder or attempted murder
the defendant has been paroled based on evidence presented
to the Board of Prison Terms that the defendant committed
the crime because he or she was the victim of intimate
partner battering; or
c) The defendant was convicted for murder or attempted
murder in the second degree in a trial at which
substantial evidence was presented that the defendant
committed the crime because he or she was the victim of
intimate partner battering. (CCP Section 340.3(b)(2).)
4) Requires that any restitution paid by the defendant to the
victim shall be credited against any judgment, award or
settlement obtained pursuant to #2), above. (CCP Section
340.3(e).)
5)Permits a person who would have the right to recover damages
from a felon based on the commission of the crime to bring an
action to recover his or her interest in an involuntary trust
established from the felon's attempt to profit from the
felony. (Civil Code Section 2225.) This statute found
unconstitutional by the California Supreme Court in Keenan v.
Superior Court (2002) 27 Cal.4th 413, cert. den. Sinatra v.
Keenan (2002) 537 U.S. 818 (statute facially invalid under the
free speech clause of the First Amendment and the liberty
speech clause of the California Constitution because it was
over-inclusive and reached beyond a criminal's profits from
the crime or its exploitation to reach all income from the
criminal's speech or expression on any theme or subject, if
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the story of the crime was included).
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill has a very laudable goal - make sure that
perpetrators of horrendous crimes do not profit from those
crimes. This bill seeks to do so by expanding dramatically the
time period for bringing a civil action against those who
committed these crimes as children or who were found not guilty
by reason of insanity.
In support of the bill, the author states:
Like many other states, California has a "Son of Sam" law
designed to permit lawsuits, on generous terms, by victims
of crime against those who committed the crime against
them. California's law (Code of Civil Procedure �340.3)
allows victims who bring civil actions for damages to file
suit for up to 10 years after the defendant is discharged
from parole for specified serious felonies which include
murder, rape, and kidnapping, among others. However, there
is loophole that was not addressed when the original Son of
Sam law was passed. The statue requires a formal
conviction in order for the provisions to apply. This
excludes two legal statues that are equivalent to a
conviction in the sense that the offender was found to have
committed the offense, but was not "convicted" in the
technical sense: a sustained juvenile delinquency petition
(which also requires proof beyond a reasonable doubt) and a
verdict of not guilty by reason of insanity (which is
different than an acquittal in that it means that the
defendant was found to have committed the act, but due to
his or her mental state was incapable of knowing or
understanding the nature of their act).
A recent New York case highlighted problems with the use of
the term "conviction" in their Son of Sam statue. New
York's law prohibits offenders from profiting from their
crimes, but a woman who was found not guilty by reason of
insanity is attempting to obtain funds from a trust of the
children she murdered. Because she was not "convicted",
she may be eligible.
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Similarly, under California's law, a victim of crime might
not be able to take advantage of the extended civil statute
of limitation period if the offender was not "convicted" of
the crime but was adjudicated delinquent in juvenile court
or found not guilty by reason of insanity. By including
these offenders, AB 1938 ensures that all victims of these
horrendous crimes are treated equally when seeking
compensation.
Background on "Son of Sam" Law and Extended Civil Statute of
Limitations : David Berkowitz, dubbed the "Son of Sam," was a
serial killer who terrorized New York City in the late 1970's.
After his capture, there was much speculation about that
publishers would offer him large sums of money for his story.
His crimes were later told in books, movies and even songs. New
York responded by enacting the first "Son of Sam" law, which
imposed an involuntary trust on the income earned by criminals
who sell the rights to the stories about their criminal acts.
The victims of the acts become the beneficiaries of the
involuntary trusts.
In 1980, Henry Hill, a lifelong mobster, was arrested in New
York. In exchange for immunity from prosecution and a new
identity, Hill testified at great length about his life of
crime. Subsequently, Hill signed a contract with Simon &
Schuster to publish a book recounting his life as a mobster.
The book, Wiseguy, was a commercial success, and was later made
into the movie Goodfellas, another huge commercial success. The
State of New York moved to place an involuntary trust on Hill's
income. The publisher, Simon & Schuster, filed a lawsuit
challenging the constitutionality of the "Son of Sam" law as an
illegal restraint on speech. The U.S. Supreme Court struck down
the law as an unconstitutional, content-based financial burden
on free speech rights. (Simon & Schuster v. New York Crime
Victims Bd. (1991) 502 U.S. 105.)
California passed its own "Son of Sam" law in 1986 to prevent
those convicted of notorious crimes from profiting on those
crimes by selling their stories. The statute did so by imposing
an involuntary trust on the proceeds a felon receives from the
sale of the story of his or her crime. However, the California
Supreme Court, following the U.S. Supreme Court's decision in
Simon & Schuster v. New York Crime Victims Bd., invalidated the
law. In Keenan v. Superior Court (2002) 27 Cal.4th 413, the
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Court found provisions of the law violated the constitutional
guarantee of free speech, by imposing a content-based financial
penalty on protected speech that was over inclusive in reaching
beyond the criminal's profits from the crime or its exploitation
to gather all income from the criminal's speech or expression on
any theme or subject, if the story of the crime was included.
In light of those decisions, which make it nearly impossible to
draft a law that directly targets the profits made by a felon
from selling the story of his or her crime that will withstand
constitutional challenge, the Legislature took an alternative
approach to ensure that victims of crime can recover against
those who harmed them: extending the statute of limitations to
allow a victim more time to file a tort action against a
defendant to recover damages based on the commission of the
crime. (SB 1887 (McPhearson), Chap. 633, Stats. 2002.) That
bill greatly extended the statute of limitations for a civil
action brought by a crime victim (which had been within one year
of conviction of the crime), allowing the victim to bring a
civil action any time up to ten years after the defendant is
discharged from parole if the conviction is for one of a list of
specified offenses. The specific offenses include murder or
attempted murder, mayhem, rape, kidnapping, and any felony
punishable by death or imprisonment in the state prison for life
or attempt to commit such a felony.
The statute specifically exempts from the extended statute of
limitations any defendant who has been pardoned or received a
certificate of rehabilitation and victims of domestic violence
who killed or attempt to kill their abusers. Thus, the
Legislature specifically chose to exempt groups from the
extended statute of limitations because of their reduced
culpability or their later rehabilitation.
This Bill Adds Two New Groups to the Extended Statute of
Limitations : To close what the author describes as a loophole
in the current law, the bill proposes to add two groups of
individuals who have committed one of specific offenses set
forth in existing law, but who were not convicted of those
crimes by a court and thus are today not included in the
extended statute of limitations. The first group is children
who committed the crime while under 18 and who were not charged
as adults. In that case, they were adjudicated delinquents by
the juvenile court, but not convicted of the crime. The second
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group is those found not guilty by reason of insanity.
Most Juvenile Offenders are Already Charged as Adults for the
Crimes in the Bill, Potentially Obviating the Need for Bill :
Proposition 21 in 2000 significantly changed how youth charged
with serious crimes are treated. Prior to Proposition 21, while
a youth 14 years or older could be tried as an adult for certain
offenses, first the prosecutor would have to file a petition
with the juvenile court asking the court to transfer the
juvenile to adult court for prosecution. Then the juvenile
court would hold a hearing to determine whether the case should
be transferred based on how the youth would do with the care,
treatment and programs in the juvenile justice system. After
passage of Proposition 21, however, it became much easier to
charge youth as adults.
Under Proposition 21, youth age 14 or older charged with
committing certain serious felonies must be tried in adult court
and are no longer eligible for juvenile court. These felonies
are: personally committing murder with special circumstances and
specific sexual crimes, including rape, and lewd and lascivious
acts on a child under the age of 14 years. In addition,
prosecutors can now directly file charges against juvenile
offenders in adult court under a wide variety of circumstances
without first obtaining permission of the juvenile court. For
youth 16 years of age and older, these circumstances include:
murder or attempted murder; arson; robbery; rape and other
sexual assaults; kidnapping; assault with a firearm, destructive
device, or by any means of force likely to produce great bodily
injury; discharge of a firearm; a felony offense in which the
minor personally used a weapon; manufacturing or selling
controlled substances; certain violent felonies; torture;
mayhem; and carjacking. For youth at least 14 years old, these
circumstances include the crimes listed above, provided there
are additional conditions, such as a previous commission of one
of these crimes. Additionally, under Proposition 21 a youth who
is 16 or older who is charged with commission of any felony
offense is presumed unfit for juvenile court jurisdiction if the
youth has been adjudged on one or more prior occasions to be a
ward of the court and was found to have committed prior felonies
after the age of 14.
Moreover, as before Proposition 21, even if the prosecutor does
not seek to charge the youth as an adult or the youth is young,
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the juvenile court can hold a fitness hearing to determine if
the youth should be tried as an adult if specific circumstances
exist. The central questions at the fitness hearing is whether
the minor is amenable to the care, treatment, and training
programs available through the juvenile court. In making that
determination, the court must consider: (1) the degree of
criminal sophistication; (2) possibility of rehabilitation
before the juvenile court loses jurisdiction; (3) previous
delinquent history; (4) results of prior attempts to
rehabilitate; and (5) the circumstances and gravity of the
offense. In some instances, the prosecutor has the burden of
proof in the fitness hearing, while in other instances based on
the crime charged and the youth's history with law enforcement,
the youth has the burden of proof.
Between the crimes that must be charged as an adult and the
crimes that the prosecutor can decide to charge as an adult,
almost every one of the crimes for which the extended statute of
limitations applies already is or, at the discretion of the
prosecutor, may be charged as an adult and thus already covered
by the existing long civil statute of limitations. Moreover
every one of the crimes for which the extended statute of
limitations applies, depending on the age of the child and their
prior criminal history, can be brought in adult court, based on
the juvenile court's fitness hearing. Thus, this bill will
likely impact only a small group of children who committed these
serious crimes when they were, almost always, very young and
were deemed fit for the rehabilitative programs available in the
juvenile justice system.
The Juvenile Justice System Designed to Punish, But Also to
Rehabilitate : While both California's adult and juvenile
justice systems seek to protect the public and punish offenders,
the juvenile justice system must also treat and rehabilitate
young offenders. Minors under the jurisdiction of the juvenile
court as a consequence of delinquent conduct must, in conformity
with the interests of public safety and protection, receive
care, treatment, and guidance that is consistent with their best
interest, that holds them accountable for their behavior, and
that is appropriate for their circumstances. While this
guidance may include punishment, it must be consistent with the
rehabilitative objectives of juvenile court. Moreover,
punishment may not include retribution.
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Given the important rehabilitative objectives of the juvenile
justice system for those children who are not charged as adults,
it is important to understand if this bill could have the
unintended consequence of undermining those significant
objectives. This is particularly true since the extended
statute of limitations does not distinguish between income
earned by the juvenile based on their hard work and income
earned by attempting to profit off the crime. By subjecting
these children to long-term civil liability exposure that may
interfere with their ability or desire to re-integrate into
society, might this bill inadvertently prevent them from going
to college, obtaining lucrative employment and becoming
productive members of society? With such disincentives to
improve, a youth released from the juvenile justice system might
have no incentive to reintegrate and may simply choose to go
"underground" or go back to the criminal life, only to
eventually re-offend. Moreover, it appears that this group of
young offenders is more like the groups that today are already
exempted from the extended statute of limitations - those
offenders who were pardoned or rehabilitated or certain victims
of domestic violence. Does it make sense to make young
offenders left in the juvenile justice system subject to the
extended statute of limitations, when other, more similar
offenders are specifically exempted?
Given these concerns, this Committee may wish to explore with
the author the possibility of asking Judicial Council to study
whether it is appropriate, from a public policy perspective, to
apply the extended statute of limitations to juveniles who have
not been tried as adults, but who have been declared wards of
the court based upon their commission of specified, serious
felony offenses. This study would help educate our Committee on
the impacts of this proposal before passing legislation that
could have unintended and negative consequences for society as a
whole, as well as the children involved.
Bill Also Applies to Those Found Not Guilty by Reason of
Insanity . This bill also expands the extended statute of
limitations for civil actions tied to specific crimes to include
those who are found not guilty by reason of insanity. The
author notes that there is a case in New York where a woman was
found not guilty by reason of insanity but is trying to profit
from her crime by "attempting to obtain funds from a trust of
the children she murdered." While this situation has,
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apparently, not yet arisen in California, the author seeks to
ensure that those found criminally insane can be subject to a
civil action for damages based on their crimes for the extended
period of time permitted, even though they lack legal
culpability.
California Attorneys for Criminal Justice oppose the bill and
are particularly concerned about applying the extended statute
of limitations against the mentally ill:
Severely mentally ill patients, that are found guilty of
any crime by reason of insanity, do not get cured of their
mental disability. . . . Mental disabilities are lifelong
disabilities with varying levels of recovery, even if the
patient is released from custody into non-custodial
treatment and supervision centers, they are not independent
functioning community members upon release from custody.
By definition, someone who is declared not guilty by reason
of insanity is not able to engage in civil litigation on
their own or assist an attorney on their behalf. The
mentally disabled patient, not guilty by reason of
insanity, is usually housed in a state hospital for
decades, then released to community treatment and
supervision by State Authorities. . . .
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334