BILL ANALYSIS �
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THIRD READING
Bill No: SB 838
Author: Beall (D), et al.
Amended: 5/27/14
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 4/29/14
AYES: Hancock, Anderson, Knight, Liu, Mitchell, Steinberg
NO VOTE RECORDED: De Le�n
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/23/14
AYES: De Le�n, Walters, Gaines, Hill, Lara, Padilla, Steinberg
SUBJECT : Crimes: sex offenses: juvenile hearing
SOURCE : Santa Clara County District Attorney
DIGEST : This bill enacts a one-year sentence enhancement and
imposes additional fines for persons convicted of a sex crime,
as specified; expands the list of criminal offenses subject to
court proceedings to include sex crimes involving an unconscious
or disabled victim; requires the court to order mandatory
out-of-home placement to an authorized placement facility, where
for a minimum of two years where minor will receive sex offender
treatment; and prohibits eligibility for deferred entry of
judgment (DEJ) for minors charged with specified sex crimes.
ANALYSIS :
Existing law:
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1.Makes it an offense for a person to willfully threaten to
commit a crime which will result in death or great bodily
injury to another person, with the specific intent that the
statement, made verbally, in writing, or by means of an
electronic communication device, is to be taken as a threat,
and causes that person reasonably to be in fear for his/her
own safety or for his/her immediate family's safety.
2.Makes it an offense for a person who uses a concealed
camcorder, motion picture camera, or photographic camera of
any type, to secretly videotape, film, photograph, or record
by electronic means, another, identifiable person who may be
in a state of full or partial undress, for the purpose of
viewing the body of, or the undergarments worn by, that other
person, without the consent or knowledge of that other person,
in any area in which that other person has a reasonable
expectation of privacy, with the intent to invade the privacy
of that other person.
3.Provides that any person under 18 years of age who commits a
crime is within the jurisdiction of the juvenile court, except
as specified.
4.Enumerates certain crimes for which a minor 14 years of age or
older may be prosecuted under the general law in a court of
criminal jurisdiction.
5.States, as amended by Proposition 21, an initiative statute
approved by the voters at the March 7, 2000 primary election,
juvenile court hearings are closed to the public, except for
juvenile court hearings alleging the commission of specified
felonies. The Legislature may amend Proposition 21 by a
statute passed in each house by a 2/3-vote.
6.Sets forth a list of 30 offense categories, commonly referred
to as "707(b) offenses," which carry a number of consequences
in terms of how a minor and his/her alleged criminal act is
handled in the juvenile system, including remand to adult
criminal court, as specified.
This bill:
1.Provides that a person convicted of a specified sex offense
who, with the intent to intimidate, harass, humiliate, or
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bully the victim, uses social media, including, but not
limited to, posting photographs online or sharing cellular
telephone photographs of the incident that resulted in the
conviction, or posting messages online or sharing telephone
messages pertaining to the incident shall, in addition to any
other punishment imposed for that conviction, be punished by
an additional term of incarceration or additional fine, as
follows:
A. For a felony conviction, the offender shall be punished
by an additional consecutive year in prison, or by a fine
not exceeding $10,000, or both.
B. For a misdemeanor conviction, the offender shall be
punished by an additional fine not exceeding $5,000.
1.Provides that 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
an intoxicating, anesthetizing, or controlled substance, or
when the victim is at the time incapable, because of a
disability, of giving consent, as specified.
2.Provides that minors who have committed specified sex crimes
in which the victim was prevented from resisting due to being
rendered unconscious, as specified, or when the victim was at
the time incapable because of a disability of giving consent,
and that was known or reasonably should have been known to the
minor at the time of the offense, shall be ordered to
out-of-home placement for a minimum of two years to a juvenile
hall, ranch, camp, institution operated by a county juvenile
probation department, where the minor shall receive treatment,
including sex offender treatment.
3.Prohibits eligibility for DEJ for minors charged with
specified sex crimes in which the victim was prevented from
resisting due to being rendered unconscious, as specified, or
when the victim was at the time incapable of giving consent,
as specified, and that was known or reasonably should have
been known to the minor at the time of the offense.
4.States that this bill shall be known, and may be cited, as
Audrie's Law.
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Background
This bill 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Unknown, potential future increase in state prison costs
(General Fund) for the one-year sentence enhancement on adult
convictions for registerable felony sex offenses meeting
specified criteria. The sentence enhancement would not apply
to adjudications, as terms for wards committed to the Division
of Juvenile Facilities are for indeterminate terms.
Potential increase in court workload (General Fund*) to open
additional court proceedings to the public, as well as
offsetting reduced workload for courts to consider DEJ
eligibility for fewer cases, as additional cases under this
bill's provisions would automatically be ineligible for DEJ
consideration.
Potentially significant increase in local agency costs (Local)
to the extent placements are made to juvenile halls or
camps/ranches that otherwise would have been granted DEJ and
sentenced to probation. The weighted statewide average cost
of a two-year minimum term in local juvenile facilities is
estimated in the range of $210,000 to $260,000 per juvenile.
*Trial Court Trust Fund
SUPPORT : (Verified 5/27/14)
Santa Clara County District Attorney (source)
American Association of University Women-California
Association of Regional Center Agencies
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California Police Chiefs Association, Inc.
California Protective Parents Association
Counseling and Support Services for Youth
Crime Victims United of California
The Arc and United Cerebral Palsy California Collaboration
The United Cerebral Palsy
OPPOSITION : (Verified 5/27/14)
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Children's Defense Fund-California
Ella Baker Center for Human Rights
Human Rights Watch
Legal Services for Prisoners with Children
National Center for Youth Law
Taxpayers for Improving Public Safety
Youth Law Center
ARGUMENTS IN SUPPORT : According to the author:
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. The
perpetrators, according to news reports, were tried as
juveniles and the allegations against them were sustained, and
released after serving 30- to 45-day sentences. They are free
to continue their lives, education, and careers in anonymity
thanks to outdated laws after publically destroying a young
women's life.
The incidents surrounding Audrie's death are not isolated but
reflect a disturbing trend. Her case is eerily similar to the
suicide of Rehtaeh Parsons, a 17-year-old student in Canada,
who suffered nearly two years of bullying as photos of her sex
assault were circulated by students, and the photographed rape
of an unconscious 16-year-old girl by two high school football
players in Steubenville, Ohio. It should be noted that the
identities of the convicted football players, both 16, were
released by the juvenile court.
The nature of the crimes against Audrie, coupled with the
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growing use of social media to bully victims, demands that our
statutes and codes be amended to reflect the severity of these
offenses in the 21st century to not only give justice but to
act as a deterrent.
ARGUMENTS IN OPPOSITION : The Legal Services for Prisoners
with Children states:
By tying the court's hands, this bill would increase the
number of teenagers removed from their homes and placed in
detention facilities. We believe that this increase would
come at a high human cost, as well as a high financial cost to
the state. Being removed from his or her home and placed in a
detention facility with other, possibly older, troubled and
violent offenders is a highly traumatic experience for a
teenager-and the court should maintain its discretion to
decide whether or not it is the appropriate sentence to impose
in any given case. By uniformly mandating the disruption of a
teenager's home life, forcing him or her to be housed in a
detention facility, and preventing him or her from maintaining
or developing positive support systems within the community he
or she will return to, this bill would force the court to
deprive many teenagers of their best opportunity for
rehabilitation and accountability. This lost opportunity
would come at a great cost: imprisoning and detaining young
people can have a severely detrimental effect on them, their
long-term economic productivity, and the productivity and
health of their communities. Detaining young people can also
increase their risk for recidivism later in life, and with
increased recidivism comes increased arrest, trial, and
detention costs. This is all in addition to the price tag of
housing a young person in a Department of Juvenile Justice
facility-an average cost of $125,000 per youth, per year.
JG:k 5/27/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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