BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 838 (Beall)
As Amended April 10, 2014
Hearing date: April 29, 2014
Penal and Welfare and Institutions Codes
AA:mc
JUVENILE JUSTICE; CYBERBULLYING:
TRYING MINORS IN ADULT COURT, JUVENILE PROCEEDINGS, AND SEX
OFFENSES
HISTORY
Source: Santa Clara County District Attorney
Prior Legislation: None
Support: California Police Chiefs Association, Inc.; California
Protective Parents Association; American Association of
University Women-California; Association of Regional
Center Agencies; The Arc and United Cerebral Palsy
California Collaboration; Counseling and Support
Services for Youth; Crime Victims United of California;
individuals
Opposition:Human Rights Watch; National Center for Youth Law;
Youth Law Center; California Public Defenders
Association; Ella Baker Center for Human Rights;
Children's Defense Fund-California; California
Attorneys for Criminal Justice; Taxpayers for Improving
Public Safety; American Civil Liberties Union
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KEY ISSUES
SHOULD THE ABILITY OF PROSECUTORS TO TRY MINORS IN ADULT COURT
BE EASED FOR SEX CRIMES COMMITTED AGAINST A VICTIM WHO CANNOT
RESIST BECAUSE HE OR SHE IS UNCONSCIOUS BY ANY INTOXICATING,
ANESTHETIZING, OR CONTROLLED SUBSTANCE, OR UNABLE TO CONSENT
BECAUSE OF A DISABILITY, AS SPECIFIED?
(CONTINUED)
SHOULD JUVENILE COURT PROCEEDINGS BE OPEN TO THE PUBLIC IN CASES
INVOLVING AN ALLEGED SEX CRIME COMMITTED AGAINST A VICTIM UNABLE TO
RESIST DUE TO BEING RENDERED UNCONSCIOUS BY ANY INTOXICATING,
ANESTHETIZING, OR CONTROLLED SUBSTANCE, OR WHEN THE VICTIM IS AT THE
TIME INCAPABLE, BECAUSE OF A DISABILITY, OF GIVING CONSENT, AS
SPECIFIED?
SHOULD A NEW SENTENCE ENHANCEMENT, WHICH IN FELONY CASES WOULD
INCLUDE AN ADDITIONAL CONSECUTIVE YEAR IN PRISON, BE ENACTED TO
APPLY WHERE A PERSON CONVICTED OF A REGISTERABLE FELONY SEX CRIME
USED SOCIAL MEDIA, POSTED MESSAGES ONLINE, OR SHARED CELLULAR
TELEPHONE MESSAGES PERTAINING TO THE INCIDENT WITH THE INTENT TO
IDENTIFY, INTIMIDATE, HARASS, HUMILIATE, OR BULLY THE VICTIM, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to 1) expand the categories of
"707(b) offenses," which statutorily affects the process for
determining whether a minor should be tried in adult court, to
include alleged sex crimes against an unconscious or disabled
victim, as specified; 2) expand the list of alleged criminal
offenses subject to court proceedings required to be open to the
public, to include alleged sex crimes involving an unconscious
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or disabled victim, as specified; and 3) enact a new sentence
enhancement for persons convicted of a sex crime who use social
media with the intent to identify, intimidate, harass,
humiliate, or bully a victim, or who post messages online or
share cellular telephone messages pertaining to the incident, as
specified.
Trying Minors in Adult Criminal Court; Welfare and Institutions
Code Section 707(b)
Current law generally provides a statutory framework for
remanding certain cases involving a minor alleged to have
committed a crime from the juvenile court to adult criminal
court. (Welfare and Institutions Code ("WIC") �� 602 and 707.)
Depending upon the age of the minor and the charged offense, a
minor may be 1) statutorily ineligible for juvenile court (WIC �
602(b)); 2) subject to remand to adult criminal court upon a
finding by the juvenile court that the minor is unfit to be
dealt with under juvenile court law (WIC � 707.); or 3) subject
to prosecution in criminal court at the discretion of the
prosecutor. (WIC � 707(d).)
Statutory Waiver
Under current law , the juvenile court has no jurisdiction over
minors 14 years of age and older who are alleged to have
committed first degree murder where the minor personally
murdered the victim, or who are alleged to have committed
specified "1-strike" forcible sex crime offenses under certain
circumstances; these offenses are required to be prosecuted in
adult court. (WIC � 602(b).)
Judicial Waiver
Under current law , for minors otherwise eligible for juvenile
court jurisdiction, the juvenile court determines the fitness of
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a minor for juvenile court by weighing whether the minor would
be amenable to the care, treatment, and training program
available through the facilities of the juvenile court, based
upon an evaluation of the following criteria:
(A) The degree of criminal sophistication exhibited by the
minor.
(B) Whether the minor can be rehabilitated prior to the
expiration of the juvenile court's jurisdiction.
(C) The minor's previous delinquent history.
(D) Success of previous attempts by the juvenile court to
rehabilitate the minor.
(E) The circumstances and gravity of the offense alleged
in the petition to have been committed by the minor.<1>
(WIC � 707(a)(1).)
Under current law the burden of proof for determining fitness -
characterized in the law as a "presumption" that the minor is
fit or unfit for juvenile court - is either on the prosecutor or
the minor, depending upon the minor's age, alleged offense and,
in some circumstances, criminal history. Using the factors
enumerated above, the presumption applies as follows:
14 or older for any state law or local ordinance
violation: the minor is presumed fit ; the burden of
rebutting the presumption is on the prosecutor, to prove by
a preponderance of evidence that the minor is not be
amenable to the care, treatment, and training program
available through the juvenile court (essentially, unfit)
because of one or a combination of more than one of the
criteria enumerated above. (WIC � 707(a)(1); Cal. Rule of
Court 5.770(c).)
16 or older , for any felony, where the minor previously
was found to have committed at least 2 felonies when at
least 14 years old: the minor is presumed unfit ; the burden
of rebutting the presumption is on the minor, to prove by a
preponderance of evidence that he or she is fit for
juvenile court, on each and every of the criteria
enumerated above. (WIC � 707(a)(2); Cal. Rule of Court
--------------------------
<1> See California Rules of Court, Rule 5.770.
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5.772(f).)
14 or older , for any 707(b) offense: the minor is
presumed unfit ; the burden of rebutting the presumption is
on the minor, to prove by a preponderance of evidence that
he or she is fit for juvenile court, on each and every of
the criteria enumerated above. (WIC � 707(c); Cal. Rule of
Court 5.772.)<2>
Current law provides that, with respect to the amenability
finding, rebutting a presumption in a judicial fitness
proceeding generally requires that a minor, regardless of the
presumption, prevail on every one of the five fitness criteria
enumerated above:
For the prosecutor to rebut a presumption that the minor
is fit for juvenile court, the court must find the child
would not be amenable to the care, treatment, and training
program available through the juvenile court because of one
or a combination of more than one of the criteria (Cal.
Rule of Court 5.770(c));
For the prosecutor to prevail where a minor is presumed
unfit for juvenile court, the court must find the child
would not be amenable to the care, treatment, and training
--------------------------
<2> In essence, rebutting a presumption in a judicial fitness
proceeding requires the following: 1) for the prosecutor to
rebut a presumption that the minor is fit for juvenile court,
the court must find the child would not be amenable to the care,
treatment, and training program available through the juvenile
court because of one or a combination of more than one of the
criteria (Cal. Rule of Court 5.770(c)); 2) for the prosecutor to
prevail where a minor is presumed unfit for juvenile court the
court must find the child would not be amenable to the care,
treatment, and training program available through the juvenile
court because of one or a combination of more than one of the
criteria (Cal. Rule of Court 5.772(f)(1) & (2)); and 3) for a
minor to prevail where he or she is presumed unfit the court
must find that the child would be amenable to the care,
treatment, and training program through the juvenile court on
each and every criterion. (Cal. Rule of Court 5.772(f)(3).)
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program available through the juvenile court because of one
or a combination of more than one of the criteria (Cal.
Rule of Court 5.772(f)(1) & (2)); and
For a minor to prevail where he or she is presumed unfit
the court must find that the child would be amenable to the
care, treatment, and training program through the juvenile
court on each and every criterion . (Cal. Rule of Court
5.772(f)(3).)
Prosecutorial Waiver
Under current law , the district attorney has the discretion to
directly file a case against a minor in the following cases:
16 or older, for any 707(b) offense .
14 or older , if the penalty for a charged offense is
death or life without the possibility of parole, if the
minor is alleged to have used a firearm during commission
or attempted commission of a felony, if the crime is a
707(b) offense and the minor has a prior 707(b), or if the
crime was a gang crime, or a hate crime, or against an
elderly or disabled person, as specified. (707(d)(2).)
16 or older if the minor has a prior felony when they
were 14 or older and the alleged crime was a felony against
an elderly or disabled victim, or a hate crime, or a gang
crime, as specified. (WIC � 707(d)(3).)
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Current law sets forth a list of thirty offense categories,<3>
commonly referred to as "707(b) offenses," which carry a number
of consequences in terms of how a minor and his or her alleged
criminal act is handled in the juvenile system, including remand
to adult criminal court, as specified. (WIC � 707(b).)
This bill would expand 707(b) to include the following offenses:
Rape when the person is prevented from resisting due to
being rendered unconscious by any intoxicating,
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<3> WIC section 707(b) offenses are the following: (1) Murder;
(2) Arson, as specified; (3) Robbery; (4) Rape with force or
violence or threat of great bodily harm; (5) Sodomy by force,
violence, duress, menace, or threat of great bodily harm; (6)
Lewd or lascivious act with a child under 14, as specified; (7)
Oral copulation by force, violence, duress, menace, or threat of
great bodily harm; (8) forcible sexual penetration, as
specified; (9) Kidnapping for ransom; (10) Kidnapping for
purpose of robbery; (11) Kidnapping with bodily harm; (12)
Attempted murder; (13) Assault with a firearm or destructive
device; (14) Assault by any means of force likely to produce
great bodily injury; (15) Discharge of a firearm into an
inhabited or occupied building; (16) Specified crimes against
older or physically disabled persons, as specified; (17)
Specified firearm offenses; (18) Any felony offense in which the
minor personally used a weapon, as specified; (19) specified
felonies involving victim intimidation; (20) Manufacturing,
compounding, or selling one-half ounce or more of any salt or
solution of a controlled substance, as specified; (21) Any
violent felony, as specified; (22) Escape, by the use of force
or violence, from any county juvenile hall, home, ranch, camp,
or forestry camp, as specified, where great bodily injury is
intentionally inflicted upon an employee of the juvenile
facility during the commission of the escape. (23) Torture, as
specified; (24) Aggravated mayhem, as specified; (25)
Carjacking, as specified, while armed with a dangerous or deadly
weapon; (26) Kidnapping, as specified; (27) Kidnapping relating
to carjacking, as specified; (28) specified offenses involving
firearms in vehicles; (29) specified crimes involving explosive
devices; and (30) Voluntary manslaughter, as specified.
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anesthetizing, or controlled substance, or when the victim
is at the time incapable, because of a disability, of
giving consent, and this is known or reasonably should be
known to the person committing the offense.
Sodomy when the person is prevented from resisting due
to being rendered unconscious by any intoxicating,
anesthetizing, or controlled substance, or when the victim
is at the time incapable, because of a disability, of
giving consent, and this is known or reasonably should be
known to the person committing the offense.
Child molestation<4> when the person is prevented from
resisting due to being rendered unconscious by any
intoxicating, anesthetizing, or controlled substance, or
when the victim is at the time incapable, because of a
disability, of giving consent, and this is known or
reasonably should be known to the person committing the
offense.
Oral copulation when the person is prevented from
resisting due to being rendered unconscious by any
intoxicating, anesthetizing, or controlled substance, or
when the victim is at the time incapable, because of a
disability, of giving consent, and this is known or
reasonably should be known to the person committing the
offense.
Sexual penetration when the victim is prevented from
resisting by any intoxicating or anesthetic substance, or
any controlled substance, and this condition was known, or
reasonably should have been known by the accused.
Any sex offense in which the offender uses social media,
including, but not limited to, posting online photos and
messages or sharing cellular photos or messages of the
incident, to identify, intimidate, harass, humiliate, or
bully the victim.
Closed and Open Juvenile Proceedings
Current law generally provides that unless requested by the
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<4> Specifically, a lewd or lascivious act against a child
under the age of 14 years, as provided in subdivision (b) of
Section 288 of the Penal Code.
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minor concerning whom the petition has been filed and any parent
or guardian present, the public shall not be admitted to a
juvenile court hearing, as specified. (WIC � 676(a).)
Current law requires, however, that members of the public shall
be admitted, on the same basis as they may be admitted to trials
in a court of criminal jurisdiction, to hearings concerning
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juvenile proceedings, as specified, for certain offenses<5>
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<5> WIC section 676 open proceeding offenses are: (1) Murder.
(2) Arson of an inhabited building. (3) Robbery while armed
with a dangerous or deadly weapon. (4) Rape with force or
violence or threat of great bodily harm. (5) Sodomy by force,
violence, duress, menace, or threat of great bodily harm. (6)
Oral copulation by force, violence, duress, menace, or threat of
great bodily harm. (7) Any offense specified in subdivision (a)
of Section 289 of the Penal Code. (8) Kidnapping for ransom.
(9) Kidnapping for purpose of robbery. (10) Kidnapping with
bodily harm. (11) Assault with intent to murder or attempted
murder. (12) Assault with a firearm or destructive device.
(13) Assault by any means of force likely to produce great
bodily injury. (14) Discharge of a firearm into an inhabited
dwelling or occupied building. (15) Any offense described in
Section 1203.09 of the Penal Code. (16) Any offense described
in Section 12022.5 or 12022.53 of the Penal Code. (17) Any
felony offense in which a minor personally used a weapon
described in any provision listed in Section 16590 of the Penal
Code. (18) Burglary of an inhabited dwelling house or trailer
coach, as defined in Section 635 of the Vehicle Code, or the
inhabited portion of any other building, if the minor previously
has been adjudged a ward of the court by reason of the
commission of any offense listed in this section, including an
offense listed in this paragraph. (19) Any felony offense
described in Section 136.1 or 137 of the Penal Code. (20) Any
offense as specified in Sections 11351, 11351.5, 11352, 11378,
11378.5, 11379, and 11379.5 of the Health and Safety Code. (21)
Criminal street gang activity which constitutes a felony
pursuant to Section 186.22 of the Penal Code. (22) Manslaughter
as specified in Section 192 of the Penal Code. (23) Driveby
shooting or discharge of a weapon from or at a motor vehicle as
specified in Sections 246, 247, and 26100 of the Penal Code.
(24) Any crime committed with an assault weapon, as defined in
Section 30510 of the Penal Code, including possession of an
assault weapon as specified in Section 30605 of the Penal Code.
(25) Carjacking, while armed with a dangerous or deadly weapon.
(26) Kidnapping, in violation of Section 209.5 of the Penal
Code. (27) Torture, as described in Sections 206 and 206.1 of
the Penal Code. (28) Aggravated mayhem, in violation of Section
205 of the Penal Code.
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unless the district attorney makes a motion for a closed hearing
(which is required to be made if requested by the victim), or
during the victim's testimony if at the time of the offense the
victim was under 16 years of age. (Id.)
This bill would require that the following offenses be added to
those now subject to open juvenile court proceedings:
Rape when the person is prevented from resisting due to
being rendered unconscious by any intoxicating,
anesthetizing, or controlled substance, or when the victim
is at the time incapable, because of a disability, of
giving consent, and this is known or reasonably should be
known to the person committing the offense.
Sodomy when the person is prevented from resisting due
to being rendered unconscious by any intoxicating,
anesthetizing, or controlled substance, or when the victim
is at the time incapable, because of a disability, of
giving consent, and this is known or reasonably should be
known to the person committing the offense.
Child molestation<6> when the person is prevented from
resisting due to being rendered unconscious by any
intoxicating, anesthetizing, or controlled substance, or
when the victim is at the time incapable, because of a
disability, of giving consent, and this is known or
reasonably should be known to the person committing the
offense.
Oral copulation when the person is prevented from
resisting due to being rendered unconscious by any
intoxicating, anesthetizing, or controlled substance, or
when the victim is at the time incapable, because of a
disability, of giving consent, and this is known or
reasonably should be known to the person committing the
offense.
Sexual penetration when the victim is prevented from
resisting by any intoxicating or anesthetic substance, or
any controlled substance, and this condition was known, or
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<6> Specifically, a lewd or lascivious act against a child
under the age of 14 years, as provided in subdivision (b) of
Section 288 of the Penal Code.
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reasonably should have been known by the accused.
Any sex offense in which the offender uses social media,
including, but not limited to, posting online photos and
messages or sharing cellular photos or messages of the
incident, to identify, intimidate, harass, humiliate, or
bully the victim.
Any sex offense subject to sex offender registration, as
specified.
Sex Crimes - "Cyberbullying"
Existing law provides that a person who has "suffered
harassment" may seek a temporary restraining order and an
injunction to prevent such harassment. "Harassment" is defined
thus: "[U]nlawful violence, a credible threat of violence, or a
knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, or harasses the person,
and that serves no legitimate purpose. The course of conduct
must be such as would cause a reasonable person to suffer
substantial emotional distress, and must actually cause
substantial emotional distress to the plaintiff." (Code. Civ.
Proc. � 527.6.)
Existing law provides that a court may issue an ex parte order
enjoining a party from molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing,
telephoning, destroying, contacting, coming within a specified
distance of, or disturbing the peace of the other party. Upon a
showing of good cause, the order may cover another named family
or household members. (Fam. Code � 6320.) Any willful
violation of such an order is contempt of court, a misdemeanor,
with a maximum jail term of one year, a fine of up to $1000, or
both. (Pen. Code � 166, subd. (c).)
Existing law provides that any person who willfully disobeys any
court order is guilty of contempt of court, a misdemeanor,
punishable by up to six months in the county jail, a fine of up
to $1000, or both. (Pen. Code � 16, subd. (a)(4).)
Existing law provides that every person who, with intent to
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place another person in reasonable fear for his or her safety,
or the safety of the other person's immediate family, by means
of an electronic communication device without consent of the
other person, and for the purpose of causing that other person
unwanted physical contact, injury, or harassment, by a third
party, electronically distributes, publishes, e-mails,
hyperlinks, or makes available for downloading, personal
identifying information, including, but not limited to, a
digital image of another person, or an electronic message of a
harassing nature about another person, is guilty of a
misdemeanor punishable by up to one year in the county jail, by
a fine of not more than one thousand dollars ($1000), or by both
that fine and imprisonment. (Pen. Code � 653.2, subd. (a).)
Existing law provides that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct, with the intent to
distribute, exhibit, or exchange such material, is guilty of
either a misdemeanor or a felony, punishable by imprisonment in
the county jail up to one year or in the state prison for 16
months, 2 or 3 years and a fine not to exceed $10,000. (Pen.
Code � 311.1.)
Existing law specifies that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any obscene matter depicting a person under the age of 18 years
engaging in or simulating sexual conduct for commercial purposes
is guilty of a felony, punishable by imprisonment in the state
prison for two, three, or six years and a fine up to $100,000.
(Pen. Code � 311.2, subd. (b).)
Existing law provides that any person who hires or uses a minor
to assist in the preparation or distribution of obscene matter
is guilty of a misdemeanor. If the person has a prior
conviction, the crime is a felony. (Pen. Code � 311.4, subd.
(a).)
Existing law provides that any person who hires or uses a minor
to assist in the possession, preparation or distribution of
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obscene matter for commercial purposes is guilty of a felony,
punishable by imprisonment in the state prison for three, six,
or eight years. (Pen. Code � 311.4, subd. (b).)
Current law provides that it "is the policy of the State of
California to ensure that all local educational agencies
continue to work to reduce discrimination, harassment, violence,
intimidation, and bullying. It is further the policy of the
state to improve pupil safety at schools and the connections
between pupils and supportive adults, schools, and communities."
(Education Code � 234.)
Current law requires the Superintendent of Public Education to
"post, and annually update, on the department's Internet Web
site and provide to each school district a list of statewide
resources, including community-based organizations, that provide
support to youth who have been subjected to school-based
discrimination, harassment, intimidation, or bullying, and their
families. The department's Internet Web site shall also include
a list of statewide resources for youth who have been affected
by gangs, gun violence, and psychological trauma caused by
violence at home, at school, and in the community." (Education
Code � 234.5.)
Current law states that it is the intent of the Legislature to
"encourage school districts, county offices of education, law
enforcement agencies, and agencies serving youth to develop and
implement interagency strategies, in-service training programs,
and activities that will improve school attendance and reduce
school crime and violence, including vandalism, drug and alcohol
abuse, gang membership, gang violence, hate crimes, bullying,
including bullying committed personally or by means of an
electronic act, teen relationship violence, and discrimination
and harassment, including, but not limited to, sexual
harassment." (Education Code � 32261(d).)
Current law requires the Department of Justice and the State
Department of Education, subject to the availability of funds in
the annual Budget Act, to "contract with one or more
professional trainers to coordinate statewide workshops for
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school districts, county offices of education, and schoolsite
personnel, and in particular school principals, to assist them
in the development of their respective school safety and crisis
response plans, and provide training in the prevention of
bullying, as specified. (Education Code � 32283.)
Current law generally requires a "comprehensive school safety
plan," as specified, and states that, as "comprehensive school
safety plans are reviewed and updated, the Legislature
encourages all plans, to the extent that resources are
available, to include policies and procedures aimed at the
prevention of bullying." (Education Code � 32282(f).)
Current law provides that the superintendent of the school
district or the principal of the school in which the pupil is
enrolled shall suspend or recommend for expulsion a pupil who
has in an act of bullying. In this context, "bullying" "means
any severe or pervasive physical or verbal act or conduct,
including communications made in writing or by means of an
electronic act, and including one or more acts committed by a
pupil or group of pupils . . . directed toward one or more
pupils that has or can be reasonably predicted to have the
effect of one or more of the following:
(A) Placing a reasonable pupil or pupils in fear of harm to
that pupil's or those pupils' person or property.
(B) Causing a reasonable pupil to experience a substantially
detrimental effect on his or her physical or mental health.
(C) Causing a reasonable pupil to experience substantial
interference with his or her academic performance.
(D) Causing a reasonable pupil to experience substantial
interference with his or her ability to participate in or
benefit from the services, activities, or privileges
provided by a school.
"Electronic act" in this context "means the creation and
transmission originated on or off the schoolsite, by means of an
electronic device, including, but not limited to, a telephone,
wireless telephone, or other wireless communication device,
computer, or pager, of a communication, including, but not
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limited to, any of the following:
(i) A message, text, sound, or image.
(ii) A post on a social network Internet Web site, including,
but not limited to:
(I) Posting to or creating a burn page. "Burn page" means
an Internet Web site created for the purpose of having one
or more of the effects listed above.
(II) Creating a credible impersonation of another actual
pupil for the purpose of having one or more of the effects
listed above. "Credible impersonation" means to knowingly
and without consent impersonate a pupil for the purpose of
bullying the pupil and such that another pupil would
reasonably believe, or has reasonably believed, that the
pupil was or is the pupil who was impersonated.
(III) Creating a false profile for the purpose of having
one or more of the effects listed above. "False profile"
means a profile of a fictitious pupil or a profile using
the likeness or attributes of an actual pupil other than
the pupil who created the false profile. (Education Code
� 48900(r).)
Under this provision, an electronic act shall not constitute
pervasive conduct solely on the basis that it has been
transmitted on the Internet or is currently posted on the
Internet. "'Reasonable pupil' means a pupil, including, but not
limited to, an exceptional needs pupil, who exercises average
care, skill, and judgment in conduct for a person of his or her
age, or for a person of his or her age with his or her
exceptional needs." (Id.)
This bill would create a new sentence enhancement, providing
that a person convicted of a registerable sex offense, as
specified, who, "with the intent to identify, intimidate,
harass, humiliate, or bully the victim, uses social media,
including, but not limited to, posting photos online or sharing
cellular telephone photos of the incident that resulted in the
conviction or posting messages online or sharing cellular
telephone messages pertaining to the incident shall, in addition
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to any other punishment imposed for that conviction, be punished
by an additional term of incarceration or additional fine," as
follows:
If the conviction is for a felony registerable
sex offense, this bill would require that the offender
be punished by an additional consecutive year in
prison, or by a fine not exceeding $10,000, or by both
imprisonment and that fine.
If the conviction for a misdemeanor
registerable sex offense, this bill would require that
the offender be punished by an additional fine not
exceeding $5,000.
This bill states that its provisions shall be known, and may be
cited, as Audrie's Law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
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In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
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SB 838 (Beall)
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following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
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1. Stated Need for this Bill
The author states in part:
Senate Bill 838 is the direct result of the tragic
death of Audrie Pott, a 15-year-old Saratoga High
student who committed suicide after she was sexually
assaulted while unconscious and photos of her were
disseminated electronically. Her assailants were
tried as juveniles. The allegations against them were
sustained and they handed down sentences of 30 to 45
days, news reports said. Despite the severity of
their crimes, they are freed from having to register
sex offenders due to an omission in the law.
Current California law provides a list of offenses for
which specified juvenile offenders may be prosecuted
in adult court under certain circumstances. This list
-- California Welfare and Institutions Code section
707(b) -- includes forced rape, sodomy and oral
copulation, but does not include sex offenses where
the victim was prevented from resisting because of
intoxication, use of a controlled substance, or
because of a developmental disability.
It is unreasonable and arbitrary to solely define
forcible rape on whether a victim was able to offer
resistance or whether they were rendered incapable of
resisting because of unconsciousness or a
developmental disability. Juvenile victims of sex
crime need to be protected equally, just the same as
adult victims, regardless of why they were vulnerable
to a horrible assault. Rape is rape.
In general, juvenile court hearings are not open to
the public. However, W&I code section 676(a)
specifies a list of offenses that would cause juvenile
court proceedings on the matter to be open to the
public. Much like section 707(b), 676(a) includes
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forcible rape, sodomy and oral copulation. Again,
this causes a loophole in the law that delineates
between victims based upon whether or not they were
able to resist. This is an unequal standard that
treats the sexual assault of someone that is
unconscious or developmentally disabled as a lesser
crime.
Audrie's Law would remedy these issues by adding a
"defenseless victim clause" in each of the above
sections. This clause would eliminate the inequity in
the law that delineates between forcible v.
non-forcible sexual assault.
Audrie's case, along with those of other young women
across the nation, has shed light on a troubling
pattern of social media being used to further
traumatize victims of sexual assault. Neither W&I
code nor the Penal code include an offense where the
victim of any sexual abuse or assault is further
traumatized by an offender through "cyber-bullying."
Photos of and messages about victims of these crimes
have been posted on the Internet or shared through cell
phone photos to intimidate, harass, humiliate, and
bully victims. The use of online photos, messaging, or
other social media increases the terrible power of the
crime's cruelty. The nature of the crimes against
Audrie, coupled with the growing use of social media to
bully victims, demands that our statutes and codes be
amended to reflect the severity of these offenses.
SB 838 would add to the Sec. 707(b) and 676(a) list,
the commission of any sex offense where the offender
uses online photos, email, cell phones, or other social
media to share photos or messages about the incident to
identify, intimidate, harass, humiliate, or bully the
victim. Further, it would add to the California Penal
code a crime enhancement for any sexual offense where
the offender uses online photos, email, cell phones, or
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other social media to share photos or messages about
the incident to identify, intimidate, harass,
humiliate, or bully the victim.
SB 838: Audrie's Law is a modest proposal that
provides equal justice for all types sexual offenses
and updates our laws to reflect the use of social
media in conjunction with sexual assault in the 21st
century."
2. What This Bill Would Do
As explained above, this bill would make two changes to the
juvenile law, and enact one sentencing enhancement.
With respect to juvenile law, the bill would 1) expand Welfare
and Institutions Code section 707(b), which generally is a list
of very serious crimes which eases the decisional pathway for
trying minors in adult criminal court, to include sex crimes
when a victim is prevented from resisting due to being rendered
unconscious by any intoxicating, anesthetizing, or controlled
substance, or when the victim is at the time incapable, because
of a disability, of giving consent, and this is known or
reasonably should be known to the person committing the offense;
and 2) require all juvenile court cases concerning an alleged
sex crime subject to sex offender registration to be open to the
public, except as specified.
This bill also would enact a sentence enhancement of one
additional, consecutive year in prison and/or up to $10,000,
where a person is convicted of a registerable felony sex crime
and, with the intent to identify, intimidate, harass, humiliate,
or bully the victim, used social media, posted messages online,
or shared cellular telephone messages pertaining to the
incident. If the underlying sex crime is a misdemeanor, the
enhancement would be an additional fine up to $5,000.
3. "Cyberbullying"; The Experience of Audrie Pott and Others
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This bill is entitled "Audrie's Law." 15-year-old Audrie Pott,
a student at Saratoga High School, took her own life last fall.
The week before, she awoke after a house party "to find her
shorts stripped down and arrows and circles and lewd comments
scribbled in Sharpie pens over her body."<7> According to press
reports, three teenage boys "admitted to digitally penetrating
Audrie on Sept. 2, 2012, while she was passed out drunk and to
possessing cellphone photos of her half-naked body."<8>
"Facebook messages she sent out looking for answers the next
week suggested she knew photos had been taken and 'the whole
school knows."<9>
As reported by the press:
The boys were charged in juvenile court, so their
names and the charges against them were kept secret
under the current law. This newspaper, however,
uncovered that the boys were charged with multiple
felonies, including sexual assault for digitally
penetrating Audrie and possessing sexually explicit
photos of her.
One of the teens, who transferred to Christopher High
School in Gilroy, was sentenced in December to 45 days
in juvenile hall. The other two boys, who still
remain students at Saratoga High, were sentenced to 30
days each, which they served on weekends -- a
punishment that Pott's stepmother says amounted to
little more than "Saturday detention."<10>
This case illustrates multiple serious issues concerning
teenagers, features of their modern lives, and the justice
system. With respect to cyberbullying, the experience of Audrie
Pott sadly reflects a greater and apparently increasing
---------------------------
<7> Audrie Pott: Boys admit sexually assaulting Saratoga teen
who committed suicide (January 14, 2014) San Jose Mercury News.
<8> Id.
<9> Audrie Pott: Saratoga teen's suicide spurs 'Audrie's Law'
on cyberbullying (March 6, 2014) San Jose Mercury News.
<10> Id.
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phenomenon in the United States. As noted in a 2011 law review
article:
Since September 2010, nine teenagers have taken their
lives because of cyberbullying, demonstrating a new
public health issue facing many adolescents and young
adults. At least one jurisdiction defines
cyber-bullying bullying in the school context as
"bullying by use of any electronic communication
device through means including, but not limited to,
e-mail, instant messaging, text messages, blogs,
mobile phones, pagers, online games and websites."
With four out of every five children having access to
the Internet, and over eighty percent of teenagers
owning a cell phone, the cyberbully is slowly taking
the place of the traditional bully.
. . .
Although a lack of reliable reporting prevents a
comprehensive understanding of cyberbullying, the
statistics that are available demonstrate a growing
problem affecting American school-aged youth.
Statistics indicate that among ten to
eighteen-year-olds, around forty-three percent report
being victims of cyberbullying, while four to
twenty-one percent of the same age group are
perpetrators of cyberbullying. Cyberbullying is most
prevalent between ages fourteen and seventeen and the
majority of cyberbullying involves girls. Lack of
reporting is a major factor in the varying statistics
on the prevalence of cyberbullying. A study of 824
teens showed that only eleven percent talked to their
parents about incidents of cyberbullying and
twenty-nine percent of teens took no action regarding
the cyberbullying. The main reason teens failed to
report cyberbullying is that they were afraid they
would have their Internet privileges revoked.
Furthermore, many teens report that they would rather
try to handle cyberbullying by themselves, by signing
off the Internet, deactivating their accounts on a
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site, or by ignoring or blocking any persistent or
hurtful messages, rather than tell anyone about the
cyberbullying. Many teens feel that they cannot talk
to their parents about cyberbullying and that the
adults at school cannot help them. With such
hesitance to report, it is difficult to capture the
prevalence of cyberbullying and, consequently,
difficult to help students who may be victims.
. . .
Victims of cyberbullying exhibit signs of emotional
distress, depression, anxiety, and increased thoughts
of suicide. Cyberbullying victims complain of
headaches and stomach aches more frequently than
children that are not cyber bullied. Children who
report incidents of cyberbullying describe feeling
"isolated, dehumanized, [and] helpless at the time of
attack." A recent study found that perpetrators are
also at an increased risk of suicide. Cyber bullies
have also been shown to have low self-esteem, are
stressed, and may have trouble making friends, all of
which are risk factors for suicide. Thus, the
implementation of necessary intervention methods
depends on the early identification of children who
are suffering from depression, whether they are the
cyberbully or the victim. If left untreated,
depression, emotional distress, and anxiety can carry
into adulthood.<11>
A number of online resources promote strategies to discourage
cyberbullying. Generally, many of these focus on establishing
rules about technology use, monitoring kids' online activities,
understanding school rules relating to cyberbullying, and
teaching teenagers how to discourage cyberbullying among their
---------------------------
<11> Noonan, Developments In The Law: Technology And Social
Media In The 21st Century: Solutions For Minimizing The Risk To
Children: Crafting Legislation To Prevent Cyberbullying: The Use
Of Education, Reporting, And Threshold Requirements (Spring
2011) 27 J. Contemp. Health L. & Pol'y 330 (citations omitted).
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SB 838 (Beall)
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peers.<12> At least one commentator has argued against criminal
sanctions as an effective response to cyberbullying:
Making cyberbullying a crime is a scare tactic that
has proven to be ineffective. Labeling cyberbullying
as a crime may not actually deter teenagers from
engaging in cyberbullying at all. Criminalization
does little to enhance a teenager's ability to
understand what he can say, and whether his statements
will lead to criminal sanctions.
Indeed, labeling younger children as "criminals" can
have lasting effects not only on how they will later
be able to fit into social order and re-establish
themselves in the community, but also on their future
educational endeavors. One study found that harsh
disciplinary measures, such as suspension or
expulsion, meted out by schools leads to an increase
in behavior problems including more bullying.<13>
Members and the author may wish to discuss how this bill would
prevent cyberbullying in California.
4. Proposed Sentencing Enhancement
This bill would enact a sentence enhancement, which in felony
cases would include an additional consecutive year in prison, on
a person convicted of a registerable felony sex crime who used
social media, posted messages online, or shared cellular
telephone messages pertaining to the incident with the intent to
identify, intimidate, harass, humiliate, or bully the victim.
---------------------------
<12> See e.g.,
http://www.stopbullying.gov/cyberbullying/prevention/;
http://stopcyberbullying.org/prevention/;
http://www.connectsafely.org/tips-to-help-stop-cyberbullying/;
and http://www.ncpc.org/cyberbullying.
<13> Noonan, supra, fn. 11, 27 J. Contemp. Health L. & Pol'y
330 (citations omitted).
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This cyberbullying/cyber-humiliation provision would be a
sentence enhancement for the underlying crime.
The sex crime prison sentences to which this enhancement would
apply are typically quite lengthy. For example, the base term
for the crime of sexual penetration against a victim unable to
resist because they are unconscious or intoxicated is three, six
or eight years in prison. (Penal Code � 289.) The Penal Code
requires that the court "may not impose an upper term by using
the fact of any enhancement upon which sentence is imposed under
any provision of law." (Penal Code � 1170(b).) As explained in
the Rules of Court:
To comply with section 1170(b), a fact charged and
found as an enhancement may be used as a reason for
imposing the upper term only if the court has
discretion to strike the punishment for the
enhancement and does so. The use of a fact of an
enhancement to impose the upper term of imprisonment
is an adequate reason for striking the additional term
of imprisonment, regardless of the effect on the total
term. (Cal. Rules of Court, Rule 4.420(c).)
Commission of a sex offense is a fact required for the
enhancement proposed by this bill. To apply this enhancement,
however, in the example cited above, the court would have to
impose either a three or six year term; the upper term of eight
years could not be imposed.<14> Yet, separating the sex crime
from the cyberbullying conduct may raise other difficult issues,
---------------------------
<14> An upper term could be imposed in addition to the
enhancement if the prosecution is able to establish additional,
different aggravating factors.
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SB 838 (Beall)
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such as First Amendment rights.<15>
As members consider the added suffering caused by the conduct
targeted by this bill, they also may wish to consider that this
kind of conduct already can affect sentencing decisions under
current law:
In exercising his or her discretion in selecting one
of the three authorized prison terms . . . , the
sentencing judge may consider circumstances in
aggravation or mitigation, and any other factor
reasonably related to the sentencing decision. The
relevant circumstances may be obtained from the case
record, the probation officer's report, other reports
and statements properly received, statements in
aggravation or mitigation, and any evidence introduced
at the sentencing hearing. (Cal. Rules of Court, Rule
4.420 (b)(emphasis added.).)
WOULD THE CONDUCT TARGETED BY THIS BILL ALREADY BE A
CIRCUMSTANCE IN AGGRAVATION SUPPORTING AN UPPER TERM? IF SO, IS
THIS PROVISION NECESSARY?
AS A PRACTICAL MATTER, WHY WOULD A PROSECUTOR SEEK THIS ONE-YEAR
ENHANCEMENT IF IT MEANT THE COURT COULD NOT IMPOSE A MUCH HIGHER
PRISON SENTENCE?
5. 707(b) Change - Trying Minors in Adult Court; Juvenile Court
This bill would ease the ability of prosecutors to try minors in
adult court for sex crimes committed against a victim who cannot
resist because they are unconscious by any intoxicating,
anesthetizing, or controlled substance, or unable to consent
because of a disability. Welfare and Institutions Code section
707(b) is a mechanism that either shifts the burden of proof to
a minor to demonstrate fitness for juvenile court, or allows
prosecutors to directly file a case in adult criminal court.
---------------------------
<15> See, e.g., Lidsky and Garcia, How Not to Criminalize
Cyberbullying (Summer 2012) 77 Mo. L. Rev. 693.
("The critical constitutional flaw in much of the new criminal
legislation is that, in its attempt to "eliminate"
cyberbullying, it conflates the definition of cyberbullying as a
social problem with the legal definition of cyberbullying as a
crime, leading to laws that violate the First Amendment.
Cyberbullying as a social problem is broad in scope: it is a
form of social or relational aggression perpetrated by perhaps
as many as a third of adolescents, and it takes many forms.
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For example, a prosecutor can directly file an adult court case
against a 16 year-old alleged to have committed a 707(b)
offense, or against a 14 year-old who is charged with a 707(b)
offense and has a prior 707(b) adjudication. Where the court
makes the fitness decision, a 14 year-old alleged to have
committed a 707(b) offense is presumed unfit for juvenile court;
in order to stay in the juvenile court, the minor would have to
demonstrate fitness under each of the five fitness criteria
described earlier in this analysis.
In his background statement the author submits that this bill
closes "the loophole that treats non-forcible rape as lesser
crime . . ." Opponents, such as the Youth Law Center, argue this
bill is "sadly out of step with what we now know about what
makes adolescents think and act the way they do, but also, what
works to help them grow toward successful adulthood."
Citing confidentiality provisions of the juvenile law, in
discussing this bill with Committee staff a representative from
the Santa Clara District Attorney's office declined to discuss
the particular facts and circumstances of the alleged offenses,
court proceedings and punishments pertaining to the three
teenagers involved in the Audrie Pott case. However, the deputy
district attorney relayed a broader, more general experience in
prosecuting similar cases. He described multiple hearings,
often with victim's families in attendance, contesting motions
to grant defendants diversion in very serious cases,<16>
followed by further multiple judicial waiver hearings seeking to
find a minor unfit for juvenile court (often, reportedly,
unsuccessful in Santa Clara County), and often failed attempts
to have a minor committed to the state Division of Juvenile
Justice.
While the particular facts of how the Saratoga case was handled
may not become available to the Committee, members may wish to
consider this bill in the broader context of how to most
effectively deal with youthful offenders, especially those
charged with the most serious offenses.
---------------------------
<16> Specifically, "deferred entry of judgment" or "DEJ,"
created with the enactment of Proposition 21 in 2000.
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In the last ten years, punishment for the most serious criminal
acts has caused the United States Supreme Court as well as many
state supreme courts, including California's, to consider the
differences between minors and adults. In 2010, the United
States Supreme Court ruled that it is unconstitutional to
sentence a youth who did not commit homicide to a sentence of
life without the possibility of parole (LWOP). ( Graham v.
Florida (2010) 130 S.Ct. 2011.) The Court discussed the
fundamental differences between juvenile and adult offenders,
and reasserted its earlier findings from Roper v. Simmons (2005)
543 U.S. 551 (prohibiting the death penalty for defendants who
committed their crimes before the age of 18), that juveniles
have lessened culpability than adults due to those differences.
In the 2005 Roper decision, Justice Kennedy, joined by Justices
Stevens, Souter, Ginsburg, and Breyer, explained in part:
. . . The susceptibility of juveniles to immature and
irresponsible behavior means "their irresponsible
conduct is not as morally reprehensible as that of an
adult." . . . Their own vulnerability and comparative
lack of control over their immediate surroundings mean
juveniles have a greater claim than adults to be
forgiven for failing to escape negative influences in
their whole environment. . . . The reality that
juveniles still struggle to define their identity means
it is less supportable to conclude that even a heinous
crime committed by a juvenile is evidence of
irretrievably depraved character. From a moral
standpoint it would be misguided to equate the failings
of a minor with those of an adult, for a greater
possibility exists that a minor's character
deficiencies will be reformed. Indeed, "[t]he
relevance of youth as a mitigating factor derives from
the fact that the signature qualities of youth are
transient; as individuals mature, the impetuousness and
recklessness that may dominate in younger years can
subside." . . . (citation); see also Steinberg & Scott
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1014 ("For most teens, [risky or antisocial] behaviors
are fleeting; they cease with maturity as individual
identity becomes settled. Only a relatively small
proportion of adolescents who experiment in risky or
illegal activities develop entrenched patterns of
problem behavior that persist into adulthood"). Roper
v. Simmons , 543 U.S. 551, 569-570 [some citations
omitted].)<17>
More recently, the Court reaffirmed these views. Justice
Kennedy, joined by Justices Stevens, Ginsburg, Breyer and
Sotomayor, noted in 2010:
No recent data provide reason to reconsider the
Court's observations in Roper about the nature of
juveniles. As petitioner's amici point out,
developments in psychology and brain science continue
to show fundamental differences between juvenile and
adult minds. For example, parts of the brain involved
in behavior control continue to mature through late
adolescence. See Brief for American Medical
Association et al. as 16-24; Brief for American
Psychological Association et al. as 22-27. Juveniles
----------------------
<17> In her dissent in Roper , Justice O'Connor disagreed with
the majority's decision but not the conclusion that juveniles
are different than adults. "It is beyond cavil that juveniles
as a class are generally less mature, less responsible, and less
fully formed than adults, and that these differences bear on
juveniles' comparative moral culpability. See, e.g., Johnson v.
Texas, 509 U.S. 350, 367, 125 L. Ed. 2d 290, 113 S. Ct. 2658
(1993) ("There is no dispute that a defendant's youth is a
relevant mitigating circumstance"); id., at 376, 125 L. Ed. 2d
290, 113 S. Ct. 2658 (O'Connor, J., dissenting) ("[T]he
vicissitudes of youth bear directly on the young offender's
culpability and responsibility for the crime"); Eddings, 455
U.S., at 115-116, 71 L. Ed. 2d 1, 102 S. Ct. 869 ("Our history
is replete with laws and judicial recognition that minors,
especially in their earlier years, generally are less mature and
responsible than adults"). But even accepting this premise, the
Court's proportionality argument fails to support its
categorical rule."
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are more capable of change than are adults, and their
actions are less likely to be evidence of
"irretrievably depraved
character" than are the actions of adults. . . . It
remains true that "[f]rom a moral standpoint it would
be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists
that a minor's character deficiencies will be
reformed." . . . ( Graham v. Florida (2010) 560 U.S.
48, 68 [some citations omitted].)
In an amicus brief to the United States Supreme Court dated
January 17, 2012, forty-six academics from areas including
criminology and juvenile crime trends stated in part:
The fear of a generation of superpredators has not
been born out, but the laws that were passed in the
wake of the increase in temporary juvenile crime that
led to the rise of the juvenile supper superpredator
meth continue to exist. Any argument that the harsher
criminal penalties for juveniles deterred or
incarcerated these purported superpredators is
unpersuasive in light of the available research data.
. . . (T)here is little evidence that the prospect of
longer sentences has a significant the deterrent
effect on adolescents. It does appear that legal
changes that increased the rate at which juveniles
were transferred to the regular criminal court system
did not contribute to the decline of the juvenile
homicide rate. . . .<18>
Current law authorizes juvenile courts to make any reasonable
orders for the care, supervision, custody, conduct, maintenance,
---------------------------
<18> Amicus brief of Jeffrey Fagan et al, in Miller v. Hobbs
(2011) 132 S. Ct. 2455. (The Eighth Amendment prohibits a
sentencing scheme that requires life in prison without the
possibility of parole for juvenile homicide offenders.)
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and support of a minor adjudged to be a delinquent ward of the
court, as specified. (WIC � 727.) The court may order the
minor to out-of-home placement, to make restitution, and to
"make any and all reasonable conditions of behavior as may be
appropriate under this disposition." (Id.) The court also may
order certain minors, including those adjudicated to have
committed a registerable sex offense, to the Division of
Juvenile Justice up to the age of 23. (WIC � 733.) Adult court
sentences for felonies can result in prison terms (a convicted
minor is transferred to prison (typically from the Division of
Juvenile Justice) at the age of 18), but also can be suspended
with the offender being put on felony probation.
Members may wish to discuss the sanctions, punishments and
treatment available in both the juvenile and adult courts, and
whether one clearly provides legal consequences more appropriate
for the kinds of cases targeted by this bill.
SHOULD 707(b) BE EXPANDED, AS PROPOSED BY THIS BILL?
ARE THE EXISTING LAWS ALLOWING THE PROSECUTION OF MINORS IN
ADULT COURT INADEQUATE?
ARE THE EXISTING PENALTIES AVAILABLE FOR MINORS WHO HAVE BEEN
ADJUDICATED IN THE JUVENILE COURT, INCLUDING COMMITMENT TO DJJ,
INADEQUATE?
IS PROSECUTION IN ADULT CRIMINAL COURT THE MOST EFFECTIVE
RESPONSE FOR MINORS ALLEGED TO HAVE COMMITTED THE CRIMES RAISED
BY THIS BILL?
Members also may wish to consider broader policy issues relating
to the disproportionate impact of adult court transfer laws on
minority youth. The National Conference of State Legislatures
has noted:
Research indicates that automatic transfer provisions
have disproportionately affected minority youth.
According to a 1997 survey on minority youth in
secure facilities, these juveniles were transferred to
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criminal court around five times their proportion of
the general population in Connecticut, Massachusetts,
Pennsylvania, and Rhode Island.
Minority youth were overrepresented by four times
their population in Montana and Tennessee, and by
around three times in Maryland and New Jersey. In
a 1996 evaluation of transfers of minority youth to
criminal court in California, African American and
Latino youth were six times more likely than whites
to be transferred. In Los Angeles County alone,
African American and Latino juveniles were 12 and 6
times, respectively, more likely to be adjudicated as
adults than whites.
According to a 2007 study commissioned by the Campaign
for Youth Justice, 83 percent of criminal court cases
with juvenile defendants involved minority youth. For
cases involving African American youth, 50 percent
were transferred via
statutory exclusion, 32 percent were transferred under
direct file laws, and 19 percent were transferred by
judicial waiver. A 2009 Campaign for Youth Justice
report estimates that Latino youth are 43 percent more
likely to be waived to adult court than white youth.
A 2007 National Council on Crime and Delinquency
report estimated that, in 2002, minority youth
accounted for 75 percent of the 4,100 juveniles
admitted to adult state prisons nationwide. African
Juvenile Justice Guide Book for Legislators American
youth reportedly are 58 percent of total admissions to
adult prisons. The same report found that nearly
every state reported minority youth as
overrepresented and white youth as underrepresented in
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admissions to adult state prisons.<19>
WOULD THE ADULT COURT PROVISIONS OF THIS BILL HAVE A
DISPROPORTIONATE IMPACT ON MINORITY YOUTH?
6. Juvenile Proceedings
Proceedings in the juvenile court generally are closed to the
public, except for serious offenses that, with certain
exceptions, require admission of the public to hearings on the
same basis as in criminal trials. Still, the public must be
excluded where the petition alleges that the minor committed one
or more specified sex offenses in two circumstances: 1) a closed
hearing, on motion by the district attorney, who must make the
motion at the victim's request; and 2) a partially closed
hearing during the victim's testimony, if the victim was under
age 16 at the time of the offense. (WIC � 676(b).)
This bill would add sex crimes when a victim is prevented from
resisting due to being rendered unconscious by any intoxicating,
anesthetizing, or controlled substance, or when the victim is at
the time incapable, because of a disability, of giving consent
to the list of offenses requiring public proceedings, subject to
the closure exceptions described above. Some legal commentators
have argued against maintaining confidential juvenile
delinquency proceedings, arguing in part for more transparency
as an important check on how juvenile courts are operating.<20>
Historically, confidentiality has been a deliberate aspect of
juvenile proceedings:
Confidentiality of juvenile court proceedings
----------------------
<19> Disproportionate Minority Contact Juvenile Justice Guide
Book for Legislators (http://www.ncsl.org/documents /cj
/jjguidebook-dmc.pdf.); See also, California Disproportionate
Minority Contact Assessment (July 15, 2013) California Board of
State and Community Corrections
(http://www.bscc.ca.gov/programs-and-services/ cpp/resources.)
<20> Clark, Collateral damage: How closing juvenile delinquency
proceedings flouts the Constitution and fails to benefit the
child (2007) 46 U. Louisville L. Rev. 199.
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historically has been one of most critical aspects of
the juvenile justice system. From the creation of the
first formal juvenile court in Chicago, Illinois in
1899, confidentiality has been regarded as a necessary
catalyst for the successful rehabilitation of wayward
youth. The purpose of keeping juvenile proceedings
behind closed doors was to minimize the criminal
stigma that could follow a youth throughout out his
life, thus impeding his transformation into a
well-adjusted, productive member of society.
The primary goal of the juvenile justice system,
according to its founders, was not to punish, but
rather to "protect, rehabilitate, and heal" the youth,
using the court system to promote the best interests
of the child, a concept known as parens patriae. The
aim of the original juvenile justice court was to
encourage the youth into rehabilitation with the
caring involvement of the judge and community working
together, calling for the judge to "put his arm around
[the juvenile's] shoulder" and effectively escort the
juvenile back into society.<21>
Members may wish to weigh the interests of expanding public
access to juvenile delinquency proceedings as proposed by this
bill, including with respect to the following:
Would opening these proceedings promote the mission of
the juvenile court in rehabilitating youthful offenders, or
would it undermine that mission through stigma?
Would opening these proceedings promote the integrity of
the juvenile court through greater transparency?
7. Background: Juvenile Sex Offenders
---------------------------
<21> Walker, Revealing Mississippi Youth Court: The
Consequences of Lifting Confidentiality Requirements on Juvenile
Justice in Mississippi (Spring 2002) 71 Miss. L.J. 999.
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According to a fact sheet prepared in 2002 by the American
Prosecutors Research Institute, research indicates that
"(a)dolescent sex offenders are significantly different from
adult sex offenders in several ways:
Adolescent sex offenders are considered to be more
responsive to treatment than adult offenders and
do not appear to continue re-offending into
adulthood, especially when provided with
appropriate treatment. Adolescent sex offenders
have fewer numbers of victims than adult offenders
and, on average, engage in less serious and
aggressive behaviors. Most adolescents do not
have deviant sexual arousal and/or deviant sexual
fantasies that many adult sex offenders have.
Most adolescents are not sexual predators nor do
they meet the accepted criteria for pedophilia.
Few adolescents appear to have the same long-term
tendencies to commit sexual offenses as some adult
offenders. Across a number of treatment research
studies, the overall sexual recidivism rate for
adolescent sex offenders is low, generally under
11 percent. Adolescent offenders against children
tend to have slightly lower sexual recidivism
rates than adolescents who rape other teens.
Adolescent sex offender rates for sexual
re-offenses (5-14%)
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are substantially lower than their rates of
recidivism for other delinquent behavior (8-58%).
. . .
Adolescent sex offenders should be subjected to
the normal juvenile probation supervision
requirements.
Most adolescent sex offenders pose a manageable
level of risk to the community. They can be
safely maintained in the community under
supervision by probation officers and be treated
in outpatient treatment programs. However, a
minority pose a danger to the community and
require residential or custodial placement to
ensure safety.
It is important to identify higher risk youth in
order to make the most effective placement
decisions. There is currently no scientifically
validated system or test to determine exactly
which adolescent sex offenders pose a high risk
for recidivism. Mental health professionals and
treatment staff typically overestimate the
possibility of recidivism in evaluations, labeling
far more teenagers as high risk than is actually
accurate. In predicting risk to the community, it
is usually appropriate to assume that an
adolescent sex offender is relatively low risk
unless there is significant evidence to suggest
otherwise. Low risk does not imply the absence of
risk, and low-risk offenders still need
supervision and treatment. The following factors
are important to consider in evaluating risk:
A history of multiple sexual offenses,
especially if any occurs after adequate
treatment.
A history of repeated non-sexual juvenile
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offenses.
Clear and persistent sexual interest in
children.
Failure to comply with an adolescent
sexual offender treatment program. Self-evident
risk signs such as out-of-control behavior,
statements of intent to re-offend, etc.
Family resistance regarding supervision
and compliance, (e.g., the youth needs to be
supervised by appropriate adults in the home and
community and the adults need to make certain
the youth complies with probation and treatment
requirements). . . . <22>
In California, a juvenile sex offender risk instrument was
adopted in 2008 by the State Authorized Risk Assessment Tool for
Sex Offenders (SARATSO) Committee. As explained on the SARATSO
website:
The JSORRAT-II was developed using an actuarial
approach in an attempt to bring greater accuracy and
utility to risk assessments for male juveniles who
have offended sexually, recognizing the potential for
accurate risk assessment to inform a range of
decisions, including placement, programming,
supervision, and other resource allocation decisions.
The JSORRAT-II is a 12-item actuarial risk assessment
tool initially developed to provide empirically-based
estimates of risk for future juvenile sexual offending
by male juveniles in the juvenile justice system for
prior sexual offenses.<23>
***************
---------------------------
<22> What Research Shows About Adolescent Sex Offenders,
American Prosecutors Research Institute, National District
Attorneys Association (Volume V, November 2, 2002) (citations
omitted).
<23> http://saratso.org/index.cfm?pid=467
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