BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 538|
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THIRD READING
Bill No: AB 538
Author: Campos (D)
Amended: 8/20/15 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-0, 6/30/15
AYES: Hancock, Anderson, Leno, Monning, Stone
NO VOTE RECORDED: Glazer, Liu
SENATE JUDICIARY COMMITTEE: 7-0, 7/14/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 75-0, 5/28/15 - See last page for vote
SUBJECT: Actions for damages: felony offenses: victim
notification
SOURCE: Crime Victims of California
DIGEST: This bill requires any person or entity that contracts
with a criminal offender for the offender's story about any of a
list of serious felonies to inform the Department of Corrections
and Rehabilitation (CDCR).
Senate Floor Amendments of 8/20/15 grant discretion to the CDCR
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to determine how notification shall be provided to a crime
victim or victim's family member that the perpetrator of the
crime has sold his or her story of the crime. The amendments
also limit the number of notifications CDCR must make.
ANALYSIS:
Existing law:
1) Provides that crime victims have the right under the
California Constitution to seek and secure restitution from
the perpetrators of these crimes. Restitution must be
ordered in every case without exception. (Cal. Const. Art. 1
§ 28, subd. (b)(13)(A)-(C).)
2) Requires a defendant who has been ordered to pay restitution
to "prepare and file a disclosure identifying all assets,
income, and liabilities in which the defendant held or
controlled a present or future interest as of the date of the
defendant's arrest. The financial disclosure statements shall
be made available to the victim and the [Victims Compensation
and Government Claims Board] pursuant to Section 1214. (Pen.
Code § 1202.4, subd. (f)(5).)
3) Provides that 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: murder or attempted murder, mayhem, rape
and other specified sexual assault crimes, any felony
punishable by death or imprisonment in the state prison for
life, or an attempt to commit such a crime, exploding a
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destructive device so as to cause bodily injury, mayhem,
exploding a destructive device with intent to commit murder,
or kidnapping. (Code of Civ. Proc. § 340.3, subd. (b)(1).)
4) Provides that the extended statute of limitations for a
civil action against a convicted criminal defendant does not
apply if:
a) The defendant has received a certificate of
rehabilitation or pardon;
b) The defendant has been paroled, following a conviction
for murder or attempted murder, 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 of 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. (Code of Civ. Proc. § 340.3,
subd. (b)(2).)
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5) Requires that any restitution paid by the defendant to the
victim shall be credited against any civil judgment, award or
settlement based on the defendant's criminal conduct. (Code
of Civ. Proc. § 340.3(e).)
6) Provides that the CDCR or Board of Parole Hearings (BPH)
shall, at least 60 days prior to release of an inmate
imprisoned for a violent felony, notify the sheriff or chief
of police and the district attorney of the community of
conviction and in the community in which the person is
scheduled to be released. (Pen. Code § 3058.6, subd.
(a)-(b).)
7) Provides that whenever any person confined to state prison
is serving a term for the conviction of specified child abuse
offenses or any sex offense perpetrated against a minor, as
specified, or as ordered by any court, the BPH or CDCR shall,
at least 45 days prior to release, notify the sheriff or
chief of police, or both, and the district attorney having
jurisdiction over the community in which the person was
convicted and the community in which the person is scheduled
to be released on parole or re-released following a period of
confinement pursuant to a parole revocation without a new
commitment. (Pen. Code § 3058.9.)
8) Requires the CDCR or BPH to send a notice to a victim or
witness who has requested notification that a person
convicted of a violent felony is scheduled to be released.
(Pen. Code § 3058.8(a).)
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9) Provides that a prison inmate retains those civil rights
that need not be restricted to for penological interests.
Specifically, an inmate may inherit, own, sell real or
personal property, including all written and artistic
material produced or written by the person during the period
of imprisonment, except as provide in Civil Code Section 2225
(Pen. Code § 26001, subd. (a).)
10)Provides through the decision in Keenan v. Superior Court
(2002) 27 Cal.4th 413 that the requirement in Civil Code
Section 2225 that any proceeds from convicted criminal's sale
of the story of his crime be placed in an involuntary trust
violates the constitutional guarantees of freedom of speech.
This bill:
1)Provides that no civil action for damages may be filed against
a person who was previously convicted of a specified violent
crime was unlawfully imprisoned or restrained but has been
released from prison after successfully prosecuting a writ of
habeas corpus (i.e. falsely convicted and later released.)
2)Provides that any person or entity that enters into a
financial contract with a criminal offender for the sale of
the story of a crime for which the offender was convicted
shall notify the CDCR that the parties have entered into such
a contract, if the following are true:
a) The contract is based on a story about a murder,
attempted murder, mayhem, rape and other specified sexual
assault crimes, any felony punishable by death or
imprisonment in the state prison for life, or an attempt to
commit such a crime, exploding a destructive device so as
to cause bodily injury, mayhem, exploding a destructive
device with intent to commit murder, or kidnapping for
which the offender was convicted.
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b) An action for damages against the offender is authorized
by statute. (See, Code of Civ. Proc. § Section 340, subd.
(b).)
3)Requires the CDCR to notify the victim and members of the
victim's immediate family, as defined, that it has received
notification that a contract has been entered into for the
sale of the offender's story, if the victim or immediate
family member has previously requested to receive
notifications provided by OVS.
Background
The three standards of review for determining the validity of a
law challenged on First Amendment grounds of freedom of speech
are strict scrutiny, intermediate scrutiny and rational basis.
A regulation based on the content of speech receives strict
scrutiny, regardless of whether the speech is contrary to
accepted standards of morality or propriety. (Kingsley Corp. v.
Regents of the Univ. of the State of N.Y (1959) 360 U.S. 684,
688-889; Citizens United v. FEC (2010) 558 U.S. 310.) A
restriction on the "content" of expression, must promote a
"compelling state interest" by the "least restrictive means" to
achieve the compelling interest. (Sable Communications v. FCC
(1989) 492 U.S. 115, 126.)
A content-based restriction will be struck down as
unconstitutionally "overbroad if it prohibits clearly protected
speech although the law may also concern conduct that may
validly be prohibited." (U.S. v. Stevens (2010) 130 S.Ct. 1577,
1587.) Stevens considered a federal statute that criminalized
the sale or possession of "depictions of animal cruelty."
Stevens was prosecuted for distribution of videos of dog fights
and the government argued that the law was limited in intent to
such depictions. The Supreme Court found that the statute was
overbroad in that it might reach videos depicting hunting,
arguably inhumane treatment of livestock, or activities legal in
some jurisdictions but not others, such as cockfighting. (Id.,
at pp. 1588-1592.)
Intermediate scrutiny requires that a law be substantially
related to, or necessary to achieve, an important or substantial
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governmental interest. The most common category of speech
subject to intermediate scrutiny is commercial speech.
Commercial speech is protected, but the state can prohibit or
punish false or misleading speech. (Va. Pharmacy Bd. v. Va.
Consumer Council (1976) 425 U.S. 748, 762, 770-773.)
Restrictions on the time, place and manner of speech are subject
to intermediate scrutiny. (United States v. Obrien (1968) 391
U.S. 367; United States v. Albertini (1985) 472 U.S. 675.)
Criminals who commit bizarre or horrific crimes have long been
the subject of public fascination through popular culture.
Victims and their family members are confronted with such
material for their rest of their lives. Jack the Ripper is an
early example of wide public fascination with, and mass media
coverage about, serial killers. Jack the Ripper killed women in
the East End of London in the 1880s. The crimes of Charles
Manson and his so-called family have created a virtual sub-genre
of crime media.
The "Son of Sam" laws arose in response to the case of notorious
serial killer David Berkowitz. Berkowitz - who was known as the
Son of Sam before his arrest - killed six people, wounded many
more and terrorized New York City in the late 1970s. Concerns
that Berkowitz could profit from his story brought New York
State to enact a statute - commonly called the "Son of Sam" law,
under which a contract for a criminal's story about his or her
crime must have been disclosed to the state. All proceeds of
the contract were to be placed in an involuntary trust for the
benefit of the criminal's victims.
The New York law was overturned in Simon & Schuster v. New York
Crime Victims Board (1991) 502 U.S. 105. The case concerned
Henry Hill, a former mafia member who signed a contract with
Simon & Schuster to publish a book recounting his life. The
book, Wiseguy, was later made into the movie Goodfellas. The
State of New York moved to place an involuntary trust on Hill's
income. The U.S. Supreme Court struck down the law as an
unconstitutional, content-based financial burden on free speech
rights. (Simon & Schuster v. New York Crime Victims Board,
supra, 502 U.S. 105.)
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California passed its own "Son of Sam" law in 1983. The law was
amended a number of times. The statute imposed 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 decision in Simon & Schuster,
struck down the California law. (Keenan v. Superior Court
(2002) 27 Cal.4th 413). The court in Keenan quoted Simon &
Schuster thus: "[T]he state has a compelling interest in
compensating victims for the fruits of the crime, but little if
any interest in limiting such compensation to the proceeds of
the wrongdoer's speech about the crime." (Simon & Schuster,
supra, 502 U.S. 105, 120-121.)
This bill does not directly take the profits from convicted
criminals who have sold their stories to publishers and other
media entities. Rather, this bill requires any person or entity
that enters into a contract for a convicted criminal's story to
inform the CDCR of the contract.
If enacted, defenders of the law defined by this bill would
likely first argue that the bill simply does not regulate or
prohibit speech or expressive conduct. This bill only allows
victims and the state to discover sources of income for a
convicted criminal who owes restitution or to the victims or has
been found civilly liable for those crimes and ordered to pay
damages to the victim
Opponents would likely argue that this bill does target the
content of speech. That is, this bill targets a contract about a
certain kind of speech. If this bill is found to regulate or
limit the content of speech, the bill would be subject to strict
scrutiny. This bill could only withstand challenge if it upheld
a compelling state interest. In light of the history of
challenges to content- based speech, the state could have great
difficulty establishing the validity of the law. The decisions
in Simon and Schuster and Keenan struck down laws that imposed a
"financial burden" or "direct financial disincentive" on speech
about the perpetrator's crime. (See, Keenan at p. 427.)
The Motion Picture Association of America, Association of
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American Publishers and California Broadcasters Association have
argued that this bill will have a chilling effect on protected
speech. Arguably, publications and other forms of media could
forgo seeking the story of a convicted offender to avoid
negative publicity and criticism when it is revealed that the
entity contracted with a notorious criminal's story. This bill
also raises the issue of the speech and contracting rights of a
publisher, audio-visual media entity, or agent. That is, the
contract that must be reported includes the speech of the other
party to a contract with the criminal. The contract would
likely otherwise remain confidential from competitors. The
resolution of this issue is not clear.
This bill could also be found to be content-neutral on its face,
but nevertheless impose a burden on speech. This bill enters
the rather slippery and uncertain world of intermediate
scrutiny. In this context, the state would need to show that it
advances an important state interest in a way that is narrowly
tailored to do so. As noted, courts will review any law that
prohibits burdens or regulates speech to determine if the law is
narrowly tailored to promote the state's interest.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified8/24/15)
Crime Victims of California (source)
California Police Chiefs Association
California State Sheriffs' Association
OPPOSITION: (Verified8/24/15)
Association of American Publishers
California Broadcasters Association
Media Coalition, Inc.
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Motion Picture Association of America
Warner Brothers
ASSEMBLY FLOOR: 75-0, 5/28/15
AYES: Alejo, Travis Allen, Baker, Bigelow, Bonilla, Bonta,
Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez,
Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,
Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gonzalez, Gordon, Gray, Hadley,
Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer,
Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,
Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, O'Donnell,
Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas,
Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,
Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Achadjian, Bloom, Gomez, Grove, Obernolte
Prepared by:Jerome McGuire / PUB. S. /
8/26/15 19:07:49
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