Bill Text: CA SB5 | 2009-2010 | Regular Session | Chaptered
Bill Title: Deceased Child Victims' Protection and Privacy Act.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2010-09-27 - Chaptered by Secretary of State. Chapter 302, Statutes of 2010. [SB5 Detail]
Download: California-2009-SB5-Chaptered.html
BILL NUMBER: SB 5 CHAPTERED
BILL TEXT
CHAPTER 302
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2010
APPROVED BY GOVERNOR SEPTEMBER 25, 2010
PASSED THE SENATE AUGUST 30, 2010
PASSED THE ASSEMBLY AUGUST 30, 2010
AMENDED IN ASSEMBLY AUGUST 30, 2010
AMENDED IN ASSEMBLY AUGUST 19, 2010
AMENDED IN SENATE APRIL 28, 2009
AMENDED IN SENATE APRIL 13, 2009
AMENDED IN SENATE MARCH 16, 2009
INTRODUCED BY Senator Hollingsworth
DECEMBER 1, 2008
An act to add Section 130 to the Code of Civil Procedure, and to
amend Sections 290.05, 290.09, and 9003 of the Penal Code, relating
to criminal victimization, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 5, Hollingsworth. Deceased Child Victims' Protection and
Privacy Act.
Existing law prohibits the making of a copy, reproduction, or
facsimile of any kind of photographs, negatives, or print of the
body, or any portion of the body, of a deceased person taken by or
for the coroner at the scene of death or in the course of a
postmortem exam or autopsy made by or caused to be made by the
coroner, except for use in a criminal proceeding in this state that
relates to the death of that person, or except as a court of this
state permits, as specified.
The California Public Records Act generally provides that public
records, as defined, are open to public inspection and every person
has a right to inspect any public record. The act sets forth
specified exemptions from those provisions, including an exemption
for specified investigatory or security files compiled by law
enforcement entities.
This bill would enact the Deceased Child Victims' Protection and
Privacy Act. The bill would provide that, when a minor who is not
within the jurisdiction of the juvenile court, as specified, is
killed as a result of a criminal act and a person has been convicted
of the crime and sentenced, or been found to have committed the act
by a juvenile court and adjudged a ward of the juvenile court, upon
the request of a qualifying family member of the deceased minor, the
autopsy report and evidence associated with the examination of the
victim in the possession of a public agency would be sealed and would
not be disclosed, except as specified. The bill would also provide
that a coroner or medical examiner shall not be liable for damages in
a civil action for any act or omission taken in compliance with
these provisions. These provisions would not be construed to limit
the authority of the court to seal records or restrict the
dissemination of an autopsy report or evidence associated with the
examination of a victim, as specified. In addition, these provisions
would establish an independent basis upon which an autopsy report or
other evidence associated with the examination of a victim may be
withheld from public disclosure; however, these provisions would not
apply if the above-described exemption from the California Public
Records Act applies.
Provisions of law proposed by AB 1844 of the 2009-10 Regular
Session, an urgency measure, would require every sex offender
required to register, as specified, to participate in an approved sex
offender management program while on parole or formal supervised
probation. AB 1844 would require probation departments and the
Department of Corrections and Rehabilitation to enter into contracts
with certified sex offender management professionals to provide these
programs.
This bill, contingent on the prior approval of AB 1844, would
eliminate this contracting requirement and make other related and
conforming changes.
Because the bill would impose additional duties on local
officials, such as the county coroner, the district attorney, or the
public defender, relating to preventing the disclosure of this
information, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would declare that it is to take effect immediately as
an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as the
Deceased Child Victims' Protection and Privacy Act.
SEC. 2. The Legislature hereby finds and declares all of the
following:
(a) (1) Thousands of Californians are murdered each year, a
statistic that has remained steady for over 30 years. The emotional
pain suffered by the families of these lost victims is unimaginable.
That pain is relived through criminal proceedings, which serve as a
troubling reminder of the suffering that loved ones endured before
their lives were taken.
(2) No document is more telling of the specific nature of a victim'
s injuries than the autopsy report crafted by a medical examiner. For
the family of a crime victim, the writing and diagrams contain the
details of a loved one's last experiences in this world.
(b) The purpose of this act is to protect the privacy of the
families of deceased minor victims of violent crimes by allowing them
to request that autopsy reports not be subject to requests for
disclosure made pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 1 of Title 1
of the Government Code), except as specified.
(c) This act is intended to limit the dissemination of autopsy and
private medical information concerning a murdered child by allowing
families to request that the autopsy report of the victim be sealed
from public inspection. This act is not intended to affect the
dissemination of those reports to law enforcement agents,
prosecutors, defendants, or civil litigants under state and federal
discovery laws.
SEC. 3. Section 130 is added to the Code of Civil Procedure, to
read:
130. (a) Subject to the provisions of this section, when a child
who is under 18 years of age is killed as a result of a criminal act
and a person has been convicted and sentenced for the commission of
that criminal act, or a person has been found to have committed that
offense by the juvenile court and adjudged a ward of the juvenile
court, upon the request of a qualifying family member of the deceased
child, the autopsy report and evidence associated with the
examination of the victim in the possession of a public agency, as
defined in Section 6252 of the Government Code, shall be sealed and
not disclosed, except that an autopsy report and evidence associated
with the examination of the victim which has been sealed pursuant to
this section may be disclosed, as follows:
(1) To law enforcement, prosecutorial agencies and experts hired
by those agencies, public social service agencies, child death review
teams, or the hospital that treated the child immediately prior to
death, to be used solely for investigative, prosecutorial, or review
purposes, and may not be disseminated further.
(2) To the defendant and the defense team in the course of
criminal proceedings or related habeas proceedings, to be used solely
for investigative, criminal defense, and review purposes, including
review for the purpose of initiating any criminal proceeding or
related habeas proceeding, and may not be disseminated further. The
"defense team" includes, but is not limited to, all of the following:
attorneys, investigators, experts, paralegals, support staff,
interns, students, and state and privately funded legal assistance
projects hired or consulted for the purposes of investigation,
defense, appeal, or writ of habeas corpus on behalf of the person
accused of killing the deceased child victim.
(3) To civil litigants in a cause of action related to the victim'
s death with a court order upon a showing of good cause and proper
notice under Section 129, to be used solely to pursue the cause of
action, and may not be disseminated further.
(b) Nothing in this section shall prohibit the use of autopsy
reports and evidence in relation to court proceedings.
(c) Nothing in this section shall abrogate the rights of victims,
their authorized representatives, or insurance carriers to request
the release of information pursuant to subdivision (f) of Section
6254 of the Government Code. However, if a seal has been requested,
an insurance carrier receiving items pursuant to a request under that
subdivision is prohibited from disclosing the requested items except
as necessary in the normal course of business. An insurance carrier
shall not, under any circumstances, disclose to the general public
items received pursuant to subdivision (f) of Section 6254 of the
Government Code.
(d) This section may not be invoked by a qualifying family member
who has been charged with or convicted of any act in furtherance of
the victim's death. Upon the filing of those charges against a
qualifying family member, any seal maintained at the request of that
qualifying family member under this section shall be removed.
(e) A coroner or medical examiner shall not be liable for damages
in a civil action for any reasonable act or omission taken in good
faith in compliance with this section.
(f) If sealing of the autopsy report has been requested by a
qualifying family member and another qualifying family member opposes
sealing, the opposing party may request a hearing in the superior
court in the county with jurisdiction over the crime leading to the
child's death for a determination of whether the sealing should be
maintained. The opposing party shall notify all other qualifying
family members, the medical examiner's office that conducted the
autopsy, and the district attorney's office with jurisdiction over
the crime at least 10 court days in advance of the hearing. At the
hearing, the court shall consider the interests of all qualifying
family members, the protection of the memory of the deceased child,
any evidence that the qualifying family member requesting the seal
was involved in the crime that resulted in the death of the child,
the public interest in scrutiny of the autopsy report or the
performance of the medical examiner, any impact that unsealing would
have on pending investigations or pending litigation, and any other
relevant factors. Official information in the possession of a public
agency necessary to the determination of the hearing shall be
received in camera upon a proper showing. In its discretion, the
court may, to the extent allowable by law and with good cause shown,
restrict the dissemination of an autopsy report or evidence
associated with the examination of a victim. This section shall not
apply if a public agency has independently determined that the
autopsy report may not be disclosed pursuant to subdivision (f) of
Section 6254 of the Government Code because it is an investigative
file. In that instance, nothing in this section shall preclude the
application of Sections 6258 and 6259 of the Government Code.
(g) If a seal has been maintained pursuant to this section, a
qualifying family member, or a biological or adoptive aunt, uncle,
sibling, first cousin, child, or grandparent of the deceased child
may request that the seal be removed. The request to remove the seal
shall be adjudicated pursuant to subdivision (f), with the party
requesting the removal of the seal being the opposing party.
(h) Nothing in this section shall limit the public access to
information contained in the death certificate including: name, age,
gender, race, date, time and location of death, the name of a
physician reporting a death in a hospital, the name of the certifying
pathologist, date of certification, burial information, and cause of
death.
(i) When a medical examiner declines a request to provide a copy
of an autopsy report that has been sealed pursuant to this section,
the examiner shall cite this section as the reason for declining to
provide a copy of the report.
(j) For purposes of this section:
(1) A "child who is under 18 years of age" does not include any
child who comes within either of the following descriptions:
(A) He or she was a dependent child of the juvenile court pursuant
to Section 300 of the Welfare and Institutions Code at the time of
his or her death, or, pursuant to subdivision (b) of Section 10850.4
of the Welfare and Institutions Code, abuse or neglect is determined
to have led to his or her death.
(B) He or she was residing in a state or county juvenile facility,
or a private facility under contract with the state or county for
the placement of juveniles, as a ward of the juvenile court pursuant
to Section 602 of the Welfare and Institutions Code at the time of
his or her death.
(2) "Evidence associated with the examination of a victim" means
any object, writing, diagram, recording, computer file, photograph,
video, DVD, CD, film, digital device, or other item that was
collected during, or serves to document, the autopsy of a deceased
child.
(3) "Qualifying family member" means the biological or adoptive
parent, spouse, or legal guardian.
(k) Nothing in this section shall limit the discovery provisions
set forth in Chapter 10 (commencing with Section 1054) of Title 6 of
the Penal Code.
(l) Nothing in this section shall be construed to limit the
authority of the court to seal records or restrict the dissemination
of an autopsy report or evidence associated with the examination of a
victim under case law, other statutory law, or the rules of court.
(m) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
SEC. 3.5. Section 290.05 of the Penal Code is amended to read:
290.05. (a) The SARATSO Training Committee shall be comprised of
a representative of the State Department of Mental Health, a
representative of the Department of Corrections and Rehabilitation, a
representative of the Attorney General's Office, and a
representative of the Chief Probation Officers of California.
(b) On or before January 1, 2008, the SARATSO Training Committee,
in consultation with the Corrections Standards Authority and the
Commission on Peace Officer Standards and Training, shall develop a
training program for persons authorized by this code to administer
the static SARATSO, as set forth in Section 290.04.
(c) (1) The Department of Corrections and Rehabilitation shall be
responsible for overseeing the training of persons who will
administer the static SARATSO pursuant to paragraph (1) or (2) of
subdivision (a) of Section 290.06.
(2) The State Department of Mental Health shall be responsible for
overseeing the training of persons who will administer the static
SARATSO pursuant to paragraph (3) of subdivision (a) of Section
290.06.
(3) The Correction Standards Authority shall be responsible for
developing standards for the training of persons who will administer
the static SARATSO pursuant to paragraph (5) or (6) of subdivision
(a) of Section 290.06.
(4) The Commission on Peace Officer Standards and Training shall
be responsible for developing standards for the training of persons
who will administer the static SARATSO pursuant to subdivision (b) of
Section 290.06.
(d) The training shall be conducted by experts in the field of
risk assessment and the use of actuarial instruments in predicting
sex offender risk. Subject to requirements established by the
committee, the Department of Corrections and Rehabilitation, the
State Department of Mental Health, probation departments, and
authorized local law enforcement agencies shall designate key persons
within their organizations to attend training and, as authorized by
the department, to train others within their organizations designated
to perform risk assessments as required or authorized by law. Any
person who administers the static SARATSO shall receive training no
less frequently than every two years.
(e) If the agency responsible for scoring the static SARATSO
believes an individual score does not represent the person's true
risk level, based on factors in the offender's record, the agency may
submit the case to the experts retained by the SARATSO Review
Committee to monitor the scoring of the SARATSO. Those experts shall
be guided by empirical research in determining whether to raise or
lower the risk level. Agencies that score the static SARATSO shall
develop a protocol for submission of risk level override requests to
the experts retained in accordance with this subdivision.
(f) The static SARATSO may be performed for purposes authorized by
statute only by persons trained pursuant to this section. Persons
who administer the dynamic SARATSO and the future violence SARATSO
shall be trained to administer the dynamic and future violence
SARATSO tools as required in Section 290.09. Probation officers or
parole agents may be trained by SARATSO experts on the dynamic
SARATSO tool and perform assessments on that tool only if authorized
by the SARATSO Training Committee to do so after successful
completion of training.
SEC. 4. Section 290.09 of the Penal Code, as added by Assembly
Bill 1844 of the 2009-10 Regular Session, is amended to read:
290.09. On or before July 2012, the SARATSO dynamic tool and the
SARATSO future violence tool, as set forth in Section 290.04, shall
be administered as follows:
(a) (1) Every sex offender required to register pursuant to
Sections 290 to 290.023, inclusive, shall, while on parole or formal
supervised probation, participate in an approved sex offender
management program, pursuant to Sections 1203.067 and 3008.
(2) The sex offender management program shall meet the
certification requirements developed by the California Sex Offender
Management Board pursuant to Section 9003. Probation departments and
the Department of Corrections and Rehabilitation shall not employ or
contract with, and shall not allow a sex offender to employ or
contract with, any individual or entity to provide sex offender
evaluation or treatment services pursuant to this section unless the
sex offender evaluation or treatment services to be provided by the
individual or entity conforms with the standards developed pursuant
to Section 9003.
(b) (1) The sex offender management professionals certified by the
California Sex Offender Management Board in accordance with Section
9003 who provide sex offender management programs for any probation
department or the Department of Corrections and Rehabilitation shall
assess each registered sex offender on formal supervised probation or
parole using the SARATSO dynamic tool, when a dynamic risk factor
changes, and shall do a final dynamic assessment within six months of
the offender's release from supervision. The management professional
shall also assess the sex offenders in the program with the SARATSO
future violence tool.
(2) The certified sex offender management professional shall, as
soon as possible but not later than 30 days after the assessment,
provide the person's score on the SARATSO dynamic tool and the future
violence tool to the person's parole agent or probation officer.
Within five working days of receipt of the score, the parole or
probation officer shall send the score to the Department of Justice,
and the score shall be accessible to law enforcement through the
Department of Justice's Internet Web site for the California Sex and
Arson Registry (CSAR).
(c) The certified sex offender management professional shall
communicate with the offender's probation officer or parole agent on
a regular basis, but at least once a month, about the offender's
progress in the program and dynamic risk assessment issues, and shall
share pertinent information with the certified polygraph examiner as
required.
(d) The SARATSO Training Committee shall provide annual training
on the SARATSO dynamic tool and the SARATSO future violence tool.
Certified sex offender management professionals shall attend this
training once to obtain authorization to perform the assessments, and
thereafter attend training updates as required by the SARATSO
Training Committee. If a sex offender management professional is
certified pursuant to Section 9003 to conduct an approved sex
offender management program prior to attending SARATSO training on
the dynamic and violent risk assessment tools, he or she shall
present to the SARATSO Training Committee proof of training on these
tools from a risk assessment expert approved by the SARATSO Training
Committee.
SEC. 5. Section 9003 of the Penal Code, as added by Assembly Bill
1844 of the 2009-10 Regular Session, is amended to read:
9003. (a) On or before July 1, 2011, the board shall develop and
update standards for certification of sex offender management
professionals. All those professionals who provide sex offender
management programs and risk assessments, pursuant to Section 290.09,
shall be certified by the board according to these standards. The
standards shall be published on the board's Internet Web site.
Professionals may apply to the board for certification on or after
August 1, 2011.
(1) (A) The board shall submit to the Department of Justice
fingerprint images and related information required by the Department
of Justice of all sex offender management applicants, as defined by
subdivision (a), for the purposes of obtaining information as to the
existence and content of a record of state or federal convictions and
state or federal arrests and also information as to the existence
and content of a record of state arrests or federal arrests for which
the Department of Justice establishes that the person is free on
bail or on his or her own recognizance pending trial or appeal.
(B) When received, the Department of Justice shall forward to the
Federal Bureau of Investigation requests for federal summary criminal
history information received pursuant to this section. The
Department of Justice shall review the information returned from the
Federal Bureau of Investigation and compile and disseminate a
response to the board.
(C) The Department of Justice shall provide a state and federal
response to the board pursuant to paragraph (1) of subdivision (l) of
Section 11105.
(D) The board shall request from the Department of Justice
subsequent arrest notification service, as provided pursuant to
Section 11105.2 of the Penal Code, for persons described in
subdivision (a).
(2) The board shall require any person who applies for
certification under this section to submit information relevant to
the applicant's fitness to provide sex offender management services.
(3) The board shall assess a fee to the applicant not to exceed
one hundred eighty dollars ($180) per application. The board shall
pay a fee to the Department of Justice sufficient to cover the cost
of processing the criminal background request specified in this
section.
(b) On or before July 1, 2011, the board shall develop and update
standards for certification of sex offender management programs,
which shall include treatment, as specified, and dynamic and future
violence risk assessments pursuant to Section 290.09. The standards
shall be published on the board's Internet Web site. All those
programs shall include polygraph examinations by a certified
polygraph examiner, which shall be conducted as needed during the
period that the offender is in the sex offender management program.
Only certified sex offender management professionals whose programs
meet the standards set by the board are eligible to provide sex
offender management programs pursuant to Section 290.09.
(c) On or before July 1, 2011, the board shall develop and update
standards for certification of polygraph examiners. The standards
shall be published on the board's Internet Web site.
SEC. 6. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
SEC. 7. Sections 3.5, 4, and 5 of this act shall become operative
only if Assembly Bill 1844 of the 2009-10 Regular Session is also
enacted and this act is enacted after Assembly Bill 1844.
SEC. 8. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to prevent, as soon as possible, autopsy information
concerning deceased children from being made available to the public,
it is necessary that this act take effect immediately.
