BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 54         Hearing Date:    June 30, 2015    
          
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          |Author:    |Runner                                               |
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          |Version:   |June 19, 2015                                        |
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          |Urgency:   |Yes                    |Fiscal:    |No               |
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          |Consultant:|ALA                                                  |
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                  Subject:  Sex Offenders:  Residency Restrictions



          HISTORY

          Source:   Author

          Prior Legislation:SB 54 (Runner) - 2011, failed passage Senate  
          Public Safety

          Support:  Crime Victims United of California

          Opposition:ACLU; California Attorneys for Criminal Justice;  
                    California Reform Sex Offender Laws; California Public  
                    Defenders Association; California Sex Offender  
                    Management Board

                                                


          PURPOSE

          The purpose of this bill is to make the following changes to the  
          residency restrictions pertaining to registered sex offenders  
          now in statute:  1) limit these restrictions to persons  
          convicted of specified sex crimes; 2) provide that the residency  
          restriction of 2,000 feet of any public or private school or  
          park where children regularly gather shall be measured by the  








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          shortest practical pedestrian or vehicle path; and 3) provide a  
          statutory judicial process whereby registered sex offenders  
          could be relieved of this restriction, as specified.
           
           Current law generally requires persons convicted of enumerated  
          sex offenses to register within five working days of coming into  
          a city or county, with specified law enforcement officials in  
          the city, county or city and county where he or she is  
          domiciled, as specified.<1>  (Penal Code § 290.)  Registration  
          generally must be updated annually, within five working days of  
          a registrant's birthday.  (Penal Code § 290.012(a).)  In some  
          instances, registration must be updated once every 30 or 90  
          days, as specified.  (Penal Code §§ 290.011, 290.012.)

          Residency Restrictions for Sex Offenders:  Measuring "2,000  
          Feet"
           
           Existing statute provides it "is unlawful for any person for  
          whom registration is required pursuant to the Sex Offender  
          Registration Act to reside within 2,000 feet of any public or  
          private school, or areas of a park where children regularly  
          gather."  (Pen. Code § 3003.5 (b).)

          Existing statute explicitly authorizes municipal jurisdictions  
          to enact local ordinances that further restrict the residency of  
          any person required to register as a sex offender.  (Penal Code  
          ---------------------------
          <1>   Penal Code section 290(b) provides:  "Every person  
          described in subdivision (c) for the rest of his or her life  
          while residing in, or, if he or she has no residence, while  
          located within California, or while attending school or working  
          in California, as described in section 290.002 and 290.01, shall  
          be required to register with the chief of police of the city in  
          which he or she is residing, or if he or she has no residence,  
          is located, or the sheriff of the county if he or she is  
          residing, or if he or she has no residence, is located, in an  
          unincorporated area or city that has no police department, and,  
          additionally, with the chief of police of a campus of the  
          University of California, the California State University, or  
          community college if he or she is residing, or if he or she has  
          no residence, is located upon the campus or in any of its  
          facilities, within five working days of coming into, or changing  
          his or her residence or location within, any city, county, or  
          city and county, or campus in which he or she temporarily  
          resides, or, if he or she has no residence, is located."








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          § 3003.5(c).)

          Existing case law provides that the residency restrictions  
          contained in subdivision (b) of Penal Code section 3003.5 "are  
          unconstitutional as applied across the board to petitioners and  
          similarly situated registered sex offenders on parole in San  
          Diego County."  (In Re Taylor [2015] 60 Cal. 4th 1019.)    

          This bill would narrow the application of this provision to  
          persons convicted of any of the offenses enumerated in Section  
          667.61.

          This bill would provide that the "2,000 feet shall be measured  
          by the shortest practical pedestrian or vehicle path."

          This bill additionally would provide that any person subject to  
          the residency restriction imposed pursuant to the provisions of  
          this section "may, if compliance is not reasonably possible  
          within his or her county, seek relief," as would be provided in  
          this bill (see below).   

          This bill also would make a purely technical change to this  
          section.

          Residency Restrictions for Sex Offenders:  Process for Relief
           
           This bill would provide a judicial process through which  
          registered sex offenders subject to the residency restrictions  
          noted above with the following features and requirements:

          Applicability
          
          This bill would provide that any registered sex offender  
          prohibited by current statute, as specified, from living within  
          2,000 feet of any public or private school, or park where  
          children regularly gather, "may seek relief from those  
          restrictions if he or she cannot comply with the restriction  
          because of the unavailability of compliant housing within his or  
          her county of domicile."

          Process
          
          This bill would provide that any person seeking relief "may file  
          a petition with the superior court of the county in which he or  









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          she resides.  Notice of the petition shall be timely served on  
          the state parole authority or other entity enforcing the subject  
          sex offender residency restrictions."

          This bill would provide that, "(n)otwithstanding any other law,  
          original jurisdiction for any petition filed pursuant to this  
          section shall lie with the appellate division of the superior  
          court in which the petition is filed."  

          This bill would authorize the court to consolidate all pending  
          petitions.

          Elements Required to Grant Relief; Standard for Review
          
          This bill would authorize the appellate division of the superior  
          court in which the petition is filed to "grant the petition if  
          the petitioner establishes by a preponderance of the evidence,  
          and the court finds, both of the following:

             (1)  There is a pervasive lack of compliant housing within  
               the petitioner's county of domicile.

             (2)   As a result of the pervasive lack of compliant housing,  
               a majority of sex offenders subject to the 2,000-foot  
               residency restriction have, despite good faith efforts,  
               been unable to find compliant housing within the county.

          Scope of Relief Granted

          This bill would provide that if relief is granted, it "shall  
          apply uniformly to all sex offenders convicted of any of the  
          offenses enumerated in Section 667.61 and for whom registration  
          is required pursuant to Section 290 in all communities within  
          the county that are subject to the 2,000-foot residency  
          restriction and shall, therefore, be narrowly crafted in order  
          to substantially comply with the intent of the people in  
          approving the residency requirements of Section 3003.5."

          Limitations on Subsequent Petitions
          
          This bill would provide that if "relief is granted or denied . .  
          . , no subsequent petition shall be heard, unless the petitioner  
          or petitioners establish in the petition, to the satisfaction of  
          the court, both of the following:









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             (1)  There has been a change of circumstances based upon a  
               substantial decline in the availability of compliant  
               housing.

             (2)  There has been a corresponding increase in the  
               percentage of sex offenders who are unable to comply with  
               the residency restrictions due to the change of  
               circumstances described in paragraph (1) since the court  
               ruling on the prior petition."

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

            "      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. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  









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          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

            "      Whether a proposal erodes a measure which has  
                 contributed to reducing the prison population;
            "      Whether a proposal addresses a major area of public  
                 safety or criminal activity for which there is no other  
                 reasonable, appropriate remedy;
            "      Whether a proposal addresses a crime which is directly  
                 dangerous to the physical safety of others for which  
                 there is no other reasonably appropriate sanction; 
            "      Whether a proposal corrects a constitutional problem or  
                 legislative drafting error; and
            "      Whether a proposal proposes penalties which are  
                 proportionate, and cannot be achieved through any other  
                 reasonably appropriate remedy.



          COMMENTS

          1.Stated Need for This Bill

          The author states in part:

               SB 54 is designed to make sex-offender residency  
               restrictions more workable and to provide relief in  
               jurisdictions where a majority of sex offenders cannot  
               find compliant housing.  The bill provides that the  
               Appellate Division of the Superior Court of each  
               county would have primary jurisdiction to consolidate  
               and hear petitions challenging the 2000 foot residency  
               restriction which precluded registered sex offenders  
               from residing near schools or parks.  The Court would  
               grant relief if it was established that there was a  
               pervasive lack of compliant housing in the subject  
               county.









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          2.Supreme Court Ruling on Residency Restrictions

          In March of this year, the California Supreme Court unanimously  
          ruled that the provisions in state law prohibiting sex offenders  
          from living within 2,000 feet of schools or parks, as applied in  
          San Diego County, are unconstitutional and bear "no rational  
          relationship to advancing the state's legitimate goal of  
          protecting children from sexual predators." (In Re Taylor [2015]  
          60 Cal. 4th 1019).  In that case, petitioners pursued habeas  
          corpus relief "by challenging the constitutionality of the  
          residency restrictions as applied to them and other similarly  
          situated registered sex offenders on supervised parole in San  
          Diego County, based on evidence adduced at an eight-day  
          evidentiary hearing ordered by this court."  (Id. at 1038-39,  
          citation omitted.)    

            The Court stated in part:

               In this case, however, we need not decide whether  
               rational basis or heightened strict scrutiny review  
               should be invoked in scrutinizing petitioners'  
               constitutional challenges to section 3003.5(b). As we  
               next explain, we are persuaded that blanket  
               enforcement of the mandatory residency restrictions of  
               Jessica's Law, as applied to registered sex offenders  
               on parole in San Diego County, cannot survive even the  
               more deferential rational basis standard of  
               constitutional review. Such enforcement has imposed  
               harsh and severe restrictions and disabilities on the  
               affected parolees' liberty and privacy rights, however  
               limited, while producing conditions that hamper,  
               rather than foster, efforts to monitor, supervise, and  
               rehabilitate these persons. Accordingly, it bears no  
               rational relationship to advancing the state's  
               legitimate goal of protecting children from sexual  
               predators, and has infringed the affected parolees'  
               basic constitutional right to be free of official  
               action that is unreasonable, arbitrary, and  
               oppressive.  (In Re Taylor, supra, 60 Cal.4th at 1038.  
               (emphasis added)

          3.Considerations in Light of In Re Taylor 










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          As explained in detail above, this bill would provide a judicial  
          process whereby registered sex offenders could be relieved of  
          the residency restrictions enacted by Jessica's Law in 2006.   
          These provisions are nearly identical to a bill introduced in  
          2011 (SB 54 [Runner]).  As noted above, in the meantime the  
          Supreme Court has addressed some constitutional issues regarding  
          residency restrictions.

          Members may wish to discuss, in light of the decision in the  
          Taylor case, the viability of this bill's provisions and how  
          they might work.  The Taylor decision states in part:

               . . . (W)e agree that section 3003.5(b)'s residency  
               restrictions are unconstitutional as applied across  
               the board to petitioners and similarly situated  
               registered sex offenders on parole in San Diego  
               County. Blanket enforcement of the residency  
               restrictions against these parolees has severely  
               restricted their ability to find housing in compliance  
               with the statute, greatly increased the incidence of  
               homelessness among them, and hindered their access to  
               medical treatment, drug and alcohol dependency  
               services, psychological counseling and other  
               rehabilitative social services available to all  
               parolees, while further hampering the efforts of  
               parole authorities and law enforcement officials to  
               monitor, supervise, and rehabilitate them in the  
               interests of public safety. It thus has infringed  
               their liberty and privacy interests, however limited,  
               while bearing no rational relationship to advancing  
               the state's legitimate goal of protecting children  
               from sexual predators, and has violated their basic  
               constitutional right to be free of unreasonable,  
               arbitrary, and oppressive official action.

               Nonetheless, as the lower courts made clear, CDCR  
               retains the statutory authority, under provisions in  
               the Penal Code separate from those found in section  
               3003.5(b), to impose special restrictions on  
               registered sex offenders in the form of discretionary  
               parole conditions, including residency restrictions  
               that may be more or less restrictive than those found  
               in section 3003.5(b), as long as they are based on,  
               and supported by, the particularized circumstances of  









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               each individual parolee.  (In re Taylor, supra, 60  
               Cal.4th at 1023.)

          It appears that the reasoning of Taylor now would apply in  
          any jurisdiction seeking to apply a blanket residency  
          restriction on registered sex offenders.  As enumerated by  
          the Court, the trial court made a number of findings of  
          fact in the San Diego case:

               (1) Despite certain imprecisions, the map book  
               prepared by (the) San Diego County crime analyst . . .  
               is the most accurate assessment of housing that is  
               reasonably available to registered sex offender  
               parolees in San Diego County.

               (2) Registered sex offender parolees are unlikely  
               candidates to rent single-family   homes; they are  
               most likely to be housed in apartments or low-cost  
               residential hotels.

               (3) By virtue of the residency restrictions alone,  
               registered sex offender parolees are effectively  
               barred from access to approximately 97 percent of the  
               existing rental property that would otherwise be  
               available to them.

               (4) The remaining 3 percent of multifamily rental  
               housing outside the exclusion areas is not necessarily  
               available to registered sex offender parolees for a  
               variety of reasons, including San Diego County's low  
               vacancy rate, high rents, and the unwillingness of  
               some landlords to rent to such persons.

               (5) In addition to CDCR's policy prohibiting parole  
               agents from supplying registered sex offender parolees  
               with specific information about the location of  
               compliant housing, parole authorities in San Diego  
               County have taken affirmative steps to prevent parole  
               agents from helping parolees find compliant housing.

               (6) Rigid application of the residency restrictions  
               results in large groups of registered sex offender  
               parolees having to sleep in alleys and riverbeds, a  
               circumstance that did not exist prior to Jessica's  









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               Law.

               (7) The residency restrictions place burdens on  
               registered sex offender parolees that are disruptive  
               in a way that hinders their treatment, jeopardizes  
               their health and undercuts their ability to find and  
               maintain employment, significantly undermining any  
               effort at rehabilitation.  (Id. at 1034.)

          This bill would provide a process for challenging a local  
          residency ordinance under which the appellate division of  
          the superior court in which the petition is filed pursuant  
          to this section may grant the petition if the petitioner  
          establishes by a preponderance of the evidence, and the  
          court finds, both of the following:

             (1)  There is a pervasive lack of compliant housing  
               within the petitioner's county of domicile.

             (2)  As a result of the pervasive lack of compliant  
               housing, a majority of sex offenders subject to the  
               2,000-foot residency restriction have, despite good  
               faith efforts, been unable to find compliant housing  
               within the county.  

          The author submits that "(r)ather than waiting for multiple  
          habeas petitions and appeals to wind their way through our  
          appellate courts, SB 54 seeks to create a more orderly and  
          efficient process for those seeking relief from the 2000  
          foot residency restrictions as applied in particular  
          counties."

          The two criteria proposed by this bill as the basis upon  
          which a court may grant relief from a residency restriction  
          are narrower than the evidentiary examination performed in  
          the Taylor case.  In addition, the standards proposed by  
          this bill appear to be vague. Members may wish to consider  
          how possible it would be for a petitioner under this bill  
          to 1) demonstrate a "pervasive" <2>  lack of compliant  
          housing; 2) demonstrate that as result of a "pervasive lack  
          of compliant housing" a "majority" of sex offenders have  

          -------------------------

          <2>   A word search for the word "pervasive" by Committee staff  
          resulted in no usage in the Penal Code.








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          been unable to find compliant housing; and 3) demonstrate  
          that a majority of these other sex offenders had used "good  
          faith efforts" to find compliant housing.

          Currently, these cases are being taken up as writs of  
          habeas corpus.  The Court in Taylor  notes that in the  
          related case of In Re E.J., 47 Cal.4th 1258, it remanded  
          the cases for evidentiary hearings in the trials courts.   
          This bill would provide that the appellate division of the  
          superior court would have jurisdiction over the petition  
          process this bill would enact.  Members may wish to discuss  
          the effect of the process proposed by this bill compared to  
          a habeas writ, and whether the evidentiary hearing process  
          would be different under this bill.   

          COULD A PETITIONER REASONABLY PREVAIL UNDER THE CRITERIA  
          THAT WOULD BE ESTABLISHED BY THIS BILL?

          WOULD THIS BILL LIMIT THE CONSTITUTIONAL EXAMINATION  
          EMPLOYED BY THE COURT IN TAYLOR?

          WOULD THE PROCESS ENACTED BY THIS BILL BE CONSTITUTIONAL?

          WOULD THIS BILL PROMOTE PUBLIC SAFETY?
                                                               
          1.Measuring 2,000 Feet for Purposes of the Residency Restriction

          In its January 2008 initial report, the California Sex Offender  
          Management Board noted that some of the terms in the existing  
          residency restrictions are not defined by the initiative, and  
          are not clear:

               Proposition 83 added Section (b) to Penal Code Section  
               3003.5 which makes it unlawful for any person required  
               to register pursuant to Penal Code Section 290 to live  
               within 2,000 feet of any "public or private school, or  
               park where children regularly gather."

            "      The term "park where children regularly gather" is  
                 not defined by the initiative. 

                  o         It is unclear if this term refers to the  
                    entire grounds of a park (sizeable portions in  
                    which children may not routinely gather) or the  









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                    portion (such as location where a play structure  
                    is located) where children are intended to be  
                    present.

                  o         It is unclear how often children need to  
                    be present at a park to meet the threshold of the  
                    phrase "regularly gather." 

                          Proposition 83 does not prescribe a method  
                 for determining how to measure the 2,000 residency  
                 restriction.

                  o         It is unclear what physical point on a  
                    site should be used to begin measurement.  For  
                    example, some localities measure from the  
                    center-point of a property and some measure from  
                    the border edges of the property.

                  o         It is unclear how the 2,000 foot distance  
                    should be measured. Should practitioners  
                    determine the distance by roads or routes a car  
                    would travel?  Should the distance be determined  
                    using straight lines or 'as the crow flies'?  

          This bill would provide that the 2,000 feet "shall be measured  
          by the closest practical pedestrian or vehicle path."  This  
          language would appear to provide clarity in terms of how to  
          identify restricted areas.  This standard arguably might reduce  
          the reach of the existing restriction to the extent it employs  
          pathways and thoroughfares instead of a simple circumference  
          drawn around the prohibited area.  For example, a residence may  
          be sited directly behind a fenced school campus but not be  
          within 2,000 feet - less than half a mile - of the school as  
          measured by the road or pathway.   

          WOULD THIS BILL ADD CLARITY TO THE APPLICATION OF CURRENT LAW,  
          AS ENACTED BY JESSICA'S LAW?

          COULD THIS PROVISION MATERIALLY REDUCE THE SCOPE OF THE  
          RESIDENCY RESTRICTIONS OF JESSICA'S LAW? 

          WOULD THIS PROVISION IMPROVE THE PRACTICAL APPLICATION AND  
          ENFORCEMENT OF JESSICA'S LAW?










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          WOULD THIS PROVISION IMPROVE STATE LAW WITH RESPECT TO  
          MONITORING SEX OFFENDERS AND PREVENTING SEX CRIMES?   

          1.Opposition

           The California Sex Offender Management Board, which  
          opposes this bill, submits in part:

               The blanket imposition of residence restrictions on  
               sex offenders is, in fact, not based on or in accord  
               with any available science, knowledge, research or  
               other solid foundation.  CASOMB strongly believes that  
               policies should be evidence-based whenever such  
               evidence is available, as it clearly is regarding  
               residence restrictions.

               . . . Residence restrictions policies, both in general  
               and as now proposed in SB 54, appear to be built on a  
               foundation of false assumptions and discredited myths.  
                Among these are mistaken beliefs about who commits  
               sex offenses ("stranger danger"), where they are  
               committed and what has and what has not been proven  
               effective in reducing recidivism.

               . . . The recommendations of a number of authoritative  
               expert resources oppose the application of residence  
               restrictions because their review of the research  
               consistently finds absolutely no scientific support  
               for such policies.  These experts and authorities  
               include a Task Group of experts (SOMAPI) convened by  
               the US Department of Justice's SMART Office, the  
               National Council of State Governments and the  
               Association for the Treatment of Sexual Abusers  
               (ATSA).  The ATSA review concluded: "Policies  
               emphasizing residential proximity to schools and parks  
               . . . ignore the empirical reality of sexual abuse  
               patterns, specifically that residence restrictions do  
               not reduce recidivism or increase community safety." .  
               . .

               A number of additional concerns about SB 54 have been  
               identified by CASOMB, including the likelihood of a  
               number of serious unintended consequences, the  
               certainty of significant costs in implementation, and  









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               vagueness in the bill's language. . . . (emphasis in  
               original)

                                      -- END -