BILL ANALYSIS �
AB 1938
Page 1
ASSEMBLY THIRD READING
AB 1938 (Hagman)
As Amended April 7, 2014
Majority vote
JUDICIARY 8-1
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|Ayes:|Wieckowski, Wagner, | | |
| |Alejo, Chau, Dickinson, | | |
| |Garcia, Maienschein, | | |
| |Muratsuchi | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Stone | | |
| | | | |
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SUMMARY : Significantly extends the statute of limitations for
certain civil actions against the criminally insane.
Specifically, this bill provides that the time for commencement
of an action for damages, against a defendant who is found not
guilty of specified, serious felony 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.
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
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)
AB 1938
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kidnapping.
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.
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.
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. This statute was 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 the story of the crime was
included).
FISCAL EFFECT : None
COMMENTS : This bill has a very laudable goal - make sure that
perpetrators of horrendous crimes do not profit from those
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crimes. This bill seeks to do so by expanding dramatically the
time period for bringing a civil action against those who
committed these crimes but who were found not guilty by reason
of insanity.
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 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.
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. (1991) 502 U.S.
105, invalidated the law. In Keenan v. Superior Court (2002) 27
Cal.4th 413, the 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.
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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), Chapter 633, Statutes of 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 10 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.
To close what the author describes as a loophole in the current
law, the bill proposes to add a group 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 -
those 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, 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
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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."
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0003115