BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 2569 (Melendez) - Registered sex offenders
          
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          |Version: August 2, 2016         |Policy Vote: PUB. S. 4 - 3      |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date: August 8, 2016    |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File. 

          Bill  
          Summary:  AB 2569 would provide that before certain  
          intra-familial sex offenders who have been granted probation can  
          be excluded from public disclosure on the Megan's Law website,  
          (1) the defendant must have served probation for at least one  
          year, and, (2) the local victim-witness assistance center (VWAC)  
          is required to speak to the victim and make a determination, to  
          be submitted to the Department of Justice (DOJ) within 60 days,  
          of whether granting an exemption would be in the best interest  
          of the victim.  


          Fiscal  
          Impact:  
            California Sex and Arson Registry (CSAR)  :  Potential costs of  
            $280,000 in FY 2016-17, $450,000 in FY 2017-18, and $450,000  
            in FY 2018-19 (General Fund) to the DOJ for necessary  
            programming and system modifications to the CSAR database,  
            validation clocks, and graphical user interface.  
           DOJ workload  :  Potential increase in costs (General Fund) to  
            the Appeals, Writs, and Trials (AWT) Unit of the Criminal Law  
            Division of the DOJ to address the potential increase in  







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            workload generated from a greater number of sex offender  
            applications for disclosure exclusions being denied, and a  
            potential increase in workload to rescind exclusions that were  
            previously granted under prior provisions of law (those  
            applications approved that had not served a full year of  
            probation prior to the granting of the exclusion). While the  
            projected number of applicants impacted prospectively is  
            estimated to be minor, the number of offenders already granted  
            exclusions that may be impacted is unknown.  
            Victim-witness assistance centers (VWACs)  :  Potentially  
            significant one-time and ongoing increase in costs (Special  
            Fund*/Federal Fund/other state/private funds) to local VWACs  
            to establish the new process, locate and meet with victims  
            once contacted by the DOJ, and make determinations within 60  
            days of DOJ contact on the best interests of victims. In the  
            absence of additional funding, the mandate to establish and  
            implement this process could potentially result in the  
            redirection of funds to support direct services that otherwise  
            would be provided to victims of crimes including domestic  
            violence, sexual assault, and human trafficking. Although the  
            receipt of state funding by a VWAC is permissive, in the  
            absence of clarifying language, the provisions of this bill  
            may create a reimbursable state mandate on county VWACs to  
            provide a higher level of service, potentially requiring  
            reimbursement by the state (General Fund).

          *Victim-Witness Assistance (VWA) Fund - staff notes the VWA Fund  
          is insolvent, with a projected FY 2016-17 year-end balance of  
          $49,000. In order to address the VWA Fund's operating shortfall,  
          one of the state's short-term solutions has been to shift costs  
          to other state funds such as the Restitution Fund.


          Background:  Existing law generally requires persons convicted of specified  
          sex offenses to register with law enforcement where they reside  
          for the rest of their lives, as specified. (Penal Code (PC) §  
          290 et seq.) Under existing law, the Department of Justice (DOJ)  
          is required to make available specified information about  
          registered sex offenders via an internet website, which is more  
          commonly known as the Megan's Law website. (PC § 290.46.)
          Existing law authorizes an offender who has been convicted of  
          specified offenses to file an application with the DOJ for  
          exclusion from disclosure on the internet website, but provides  
          that exclusion from the website does not relieve the offender  








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          from the duty to register as a sex offender or other applicable  
          provisions of law. Existing law additionally authorizes an  
          exclusion from disclosure on the Megan's Law website after  
          application by an offender for certain intra-familial crimes, as  
          follows:


                 The offender was the victim's parent, stepparent,  
               sibling, or grandparent, the crime did not involve  
               specified acts, and the offender successfully completed  
               probation, as clearly demonstrated by a certified copy of  
               an official document, as specified; or


                 The offender was the victim's parent, stepparent,  
               sibling, or grandparent, the crime did not involve  
               specified acts, and the offender is on probation at the  
               time of his or her application, as clearly demonstrated by  
               a certified copy of official documents, as specified. (PC  
               290.46(e)(2)(D).)


          This bill seeks to impose additional requirements to be met  
          prior to an application being granted by the DOJ for exclusion  
          from disclosure on the Megan's Law website for specified  
          intra-familial sex offenders. 




          Proposed Law:  
           This bill would provide for the following requirements to be  
          met before certain intra-familial sex offenders who have been  
          granted probation can be excluded from public disclosure on the  
          Megan's Law website:
                 For an offender who is on probation at the time of his  
               or her application, the defendant must have served  
               probation for at least one year prior to the granting of  
               his or her application. 


                 Prior to granting an application for an offender who has  
               completed probation or is currently serving probation,  
               requires a local victim-witness assistance center (VWAC) to  








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               speak to the victim and make a determination, to be  
               submitted to the Department of Justice (DOJ) within 60 days  
               of being contacted by the DOJ, of whether granting an  
               exemption would be in the best interest of the victim.


                  o         Provides that if the victim cannot be located  
                    by the VWAC, declines to speak with a representative  
                    of the VWAC, or if the VWAC does not otherwise speak  
                    with the victim and submit its determination within 60  
                    days of being contacted by the DOJ, the DOJ shall  
                    grant the exclusion if all other requirements are  
                    otherwise met. 


                  o         Provides that if the application for exclusion  
                    is denied due the VWAC process, the application may  
                    not be reconsidered until after three months from the  
                    denial.


                  o         Provides that notwithstanding the existing  
                    provision of law that provides for the rescission of  
                    an exclusion granted under prior law, an exclusion  
                    application already granted prior to the effective  
                    date of this measure shall not be subject to  
                    rescission pursuant to the clause establishing the  
                    VWAC determination process.     




          Related  
          Legislation:  AB 1844 (Fletcher) Chapter 219/2010 enacted  
          "Chelsea's Law," which increased penalties for forcible sex acts  
          against minors, created a penalty of life without the  
          possibility of parole for specified sex acts against minors,  
          created safe zones around parks, and mandated lifetime parole  
          for specified sex offenses.
          AB 1323 (Vargas) Chapter 722/2005 updated provisions of "Megan's  
          Law" in order to conform to provisions requiring the DOJ to post  
          sex offender registration information on the internet. AB 1323  
          modified provisions of law that allow specified registered sex  
          offenders who have successfully completed probation to apply  








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          for, and be granted, exclusion from the DOJ Megan's Law website  
          in specified instances of intra-familial sexual abuse and added  
          a provision that specified sex offenders who are currently on  
          probation may apply for exclusion provided the offender submit  
          to the DOJ a certified copy of specified documents.


          AB 488 (Parra) Chapter 745/2004 required the DOJ, on or before  
          July 1, 2005, to make specified information about certain sex  
          offenders available to the public via the internet website and  
          to update that information on an ongoing basis, which would  
          include the home address of specified offenders.




          Staff  
          Comments:  The DOJ has indicated one-time costs of $280,000 in  
          FY 2016-17, $450,000 in FY 2017-18, and $450,000 in FY 2018-19  
          for necessary programming and system modifications to the CSAR  
          database, validation clocks, and graphical user interface. The  
          costs would be paid from the General Fund.
          The DOJ will also potentially incur an increase in workload due  
          to a greater number of sex offender applications for exclusion  
          from disclosure being denied due to the VWAC determination  
          process, and the potential requirement to rescind exclusions  
          previously granted under prior provisions of law that did not at  
          that time require a minimum of one full year of probation to be  
          served prior to the granting of an application for exclusion. 


          Although the bill specifies no exclusions already granted will  
          be rescinded due to the new provision of law requiring a VWAC to  
          speak with the victim to determine whether granting an exemption  
          would be in the best interests of the victim, a similar  
          provision is not provided for the new requirement that imposes a  
          minimum of one year served of probation for an offender who is  
          on probation at the time of his or her application. As a result  
          all exclusions granted to date for offenders who were on  
          probation at the time of their application but who had not been  
          on probation for at least one year could potentially have their  
          exclusions rescinded. The number of prospective applicants is  
          projected to be minor (less than 50 annually, based on an annual  
          applicant caseload of about 500 offenders), however, the number  








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          of offenders that have been granted an exclusion to date that  
          may be impacted by this measure is unknown but could be  
          significant.


          This bill imposes new activities on local VWACs, potentially  
          resulting in significant one-time and ongoing costs to establish  
          the new process, conduct training, locate and meet with victims  
          once contacted by the DOJ, and make determinations within 60  
          days of DOJ contact on the best interests of victims. VWACs are  
          supported by numerous funds sources including the Victim-Witness  
          Assistance (VWA) Fund, Federal Funds, and other state, local,  
          and private funds. Staff notes the VWA Fund is insolvent, with a  
          projected year-end reserve balance of only $49,000. In the  
          absence of adequate funding from alternative fund sources such  
          as federal VOCA Funds or other local or private funds, the  
          mandate to establish and implement this process could  
          potentially result in the redirection of existing funds  
          available to support direct services that otherwise would be  
          provided to victims of crimes including domestic violence,  
          sexual assault, and human trafficking. Although the receipt of  
          state funding by a VWAC is permissive, and it appears the  
          establishment of a VWAC is optional, in the absence of  
          clarifying language, the provisions of this bill may create a  
          reimbursable state mandate on county VWACs to provide a higher  
          level of service, potentially requirement reimbursement by the  
          state (General Fund).




          Recommended  
          Amendments:  
             1.   To address the potential increase in workload to the DOJ  
               associated with the possible rescission of exclusions  
               granted for offenders on probation at the time of their  
               applications but who had not served a minimum of one year,  
               the author may wish to consider an amendment as follows:


               On page 7, in line 39, after (ii) insert "(I)".


               On page 8, between lines 10 and 11, insert the following:








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                (II) Notwithstanding paragraph (3), an exclusion  
               application already granted prior to the effective date of  
               this measure that modifies this clause shall not be subject  
               to rescission pursuant to this clause.  


              2.   Staff also recommends the following technical amendment:  
                


               On page 8, in line 39, strike "recision" and insert  
          "rescission".


             3.   To avoid the creation of a potential reimbursable state  
               mandate, the author may wish to consider an amendment to  
               clarify that the operation of a local VWAC is permissive.


               On page 8, after line 39, insert:


                (V) Nothing in this clause is intended to require a local  
               agency to operate a local assistance center for victims and  
               witnesses.




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