Amicus Curiae Brief — United States v. Knights

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Supreme Court, US.

. ’ FILED

32 00] |

Hug, AUG 22 200

oF Mick © iz ats ‘ a4

No. 00-1260 S cneeeneaeae:

—————————_—————————

IN THE

SUPREME Court OF THE UNITED STATES

UNITED STATES,

Petitioner.

MARK JAMES KNIGHTS.

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE RUTHEPFORD INSTITUTE

IN SUPPORT OF RESPONDENT

James Joseph Lynch, Jr. John W. Whitehead

Counsel of Record Steven H. Aden

2740 Howe Ave THE RUTHERFORD INSTITUTE

P. O. Box 336 P.O. Box 7482

Sacramento, CA 95812 Charlottesville, VA 22906

Tel: (916) 448-7871 Tel.: (804) 978-3888

August 21, 2001

BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHIORITEES ....ccccccccscsccccsenes u

STATEMENT OF AMICUS CURIAE

INTEREST AND INTRODUCTION ...............

SUMMARY OF ARGUMENT. ............00e0 seen

I. THE NINTH CIRCUIT’S DECISION IS IN

ACCORD WITH STARE DECISIS OF THIS

COURT AND A MAJORITY OF THE STATE

COURTS THAT HAVE CONSIDERED THE

A. THERE Must BEA CLEAR, EXPRESS, STATUTORY

AUTHORIZATION FoR A FOURTH AMENDMENT

WAIVER TO BE EFFECTIVE ...........000eceeces

B. THis COURT HELD IN GRIFFIN THAT STATES

HAVE A LIMITED INTEREST IN CLOSE

SUPERVISION OF THOSE JN CUSTODIA LEGIS........

+ CALIFORNIA HAS No DETAILED RULES AND

REGULATIONS FOR THE IMPOSITION OF A

STATUTORY WAIVER OF THE FOURTH

AMENDMENT FOR THOSE ON PROBATION .........

| I PTT Ce TETETT TTT PTTL Terie 1]

TABLE OF AUTHORITIES

Cases

Allen v. State, 369 S.E.2d 909 (Ga. 1988) ............ 7

Arkansas Ed. Television Comm'n v. Forbes,

S25 US. G66 CIGGED . ow cc ccnconcecsecensusnueeal ]

Colonnade Corp. v. United States,

B07 US. TA CITED . oo cvvctcnnccvesueauuanee 3,10

Commonwealth v. La France,

525 N.E.2d 379 (Mass. 1988) ...........eeeeeeees 7

Dearth v. State, 390 So.2d 108 (Fla. App. 1980) ...... 7

Ferguson v. City of Charleston, 121 §.Ct. 1281 (2001) . 1

Florida v. J. L., 529 U.S. 266 (2000) ..........0 008 ]

Florida v. Wells, 495 U.S. 1 (1990) ...........0 0 eee 9

Frazee v. Dept. of Employment Sec.,

409 U.S. GBD (IGE)... vc ccccdescseseunnneeeneee ]

G.M. Leasing Corp. v. United States,

429 US. 338 CIGTT) . oo cccvencseeessaueseeeneee 4

Good News Club v. Milford Cent. Sch.,

vig tem fr | eee DU |

Griffin v. Wisconsin, 483 U.S. 868 (1987) ....... passim

Illinois v. Krull, 480 U.S. 340 (1986) ..........0008. 4

Illinois v. McArthur, 531 U.S. 326 (2001) ............ ]

Illinois v. Wardlow, 528 U.S. 119 (2000) ............ l

Indianapolis v. Edmond, 531 U.S. 32 (2000) ......... ]

New York v. Burger, 482 U.S. 691 (1987)............ 4

Payton v. New York, 445 U.S. 573 (1980) ......... 4,9

People v. Bravo, 43 Cal.3d 600 (1987) .......... passim

People v. Hellenthal,

465 N.W.2d 329 (Mich. 1990) ............ cee ees 7

People v. Peterson, 233 N.W.2d 250 (Mich. 1975)..... 7

People v. Way, 319 N.Y.S.2d 16 (New York 1971) .... 7

See v. Seattle, 387 U.S. 541 (1967) ................. 4

Silverthorne Lumber Co. v. United States,

Ce ee accuse ee ees 4

Slack v. McDaniel, 529 U.S. 472 (2000) ............. l

State v. Cullison, 173 N.W.2d 533 (lowa 1970) ...... 7

State v. Cumming, 262 N.W.2d 56 (S.D. 1978) ....... 7

State v. Davis, 597 P.2d 1280 (1979) ............... 8

State v. Fields, 686 P.2d 1379 (Hawaii 1984)......... 7

State v. Finnegan, 439 N.W.2d 496 (Neb. 1989) ...... 7

State v. Fogarty, 610 P.2d 140 (Mont. 1980) ......... 7

State v. Gallagher, 675 P.2d 429 (N.M. 1984) ........ 7

State v. Gardner, 619 P.2d 847 (N.M. 1980) ......... 7

State v. Holm, 579 P.2d 860 (Ore. 1978) ............ 7

State v. Hovater, 588 P.2d 56 (1978) ............... 8

State v. McGivney, 585 P.2d 767 (Ore 1978) ......... 7

State v. Perbix, 331 N.W.2d 14 (N.D. 1983) ......... 7

Temez v. State, 534 S.W.2d 686 (TX. 1976) .......... 7

United States v. Biswell, 482 U.S. 691 (1972) ........ 4

Wilson v. State, 752 S.W.2d 46 (Ark. 1988) .......... 7

Wyoming v. Houghton, 526 U.S. 295 (1999) ......... l

Constitutions and Statutory Provisions

United States Const. Amend. IV ................ passim

26 USC §§ 5301(c), 5146, and 7606 ................ 3

ED vc cecs coset cevcscceeces 7

Ee 10

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aac ccecegecectesececesss 9

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“iti

Ce Bin Ge BEGG onc xoccedksscccesavekeasns

Ge GG, Be BGSGGD ccccdcccccncccccccees

Ss DE vcces dendindvadwedetanwawner

Miscellaneous

3 Rotunda, CONSTITUTIONAL TREATISE, § 20.9 ........

Annotation, Validity of Requirement that, As Condition of

Probation, Defendant Submit to Warrantless Searches,

TORS OED 6ck bbcesnqucencencesceuecsess

Annotation, Validity, Under Fourth Amendment, of

Warrantless Search of Parolee or his property by

Parole Officer, 32 A.L.R.Fed 155 ...........5445.

MOobeL PENAL CopDE § 301.1(2)(j) .... 6. ee eee ees

MODEL PENAL CODE § 301.1(2){I) ... 2... 0 eee eee

-iv-

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREMECOURT OF THE

UNITED STATES:

STATEMENT OF AMICUS CURIAE

INTEREST AND INTRODUCTION '

The Rutherford Institute is an intemational, non-profit civil

liberties organization headquartered mn Charlottesville, Virginia. The

Institute, founded in 1982 by its President, John W. Whitehead,

educates and litigates on behalf of constitutional and civil liberties.

Attomeys affiliated with the Institute have filed petitions for wnt of

certioran m the United States Supreme Court in more than two

dozen cases, and certiorari has been accepted im several significant

constitutional cases. See Frazee v. Dept. of Employment Sec.,

489 U.S. 829 (1989); Arkansas Educational Television

Comm 'n. v. Forbes, 523 U.S. 666 (1998); and Good News Club

v. Milford Central School, 121 S.Ct. 2093 (2001). Institute

attorneys have filed numerous amicus curiae bnefs in the United

States Supreme Court in cases involving the nghts of the accused.’

Institute attorneys currently handle several hundred cases nationally,

' The Solicitor-General of the United States and counsel for

Respondent have consented to the filing of this brief. Copies of the

letters of consent are on file with the Clerk of the Court. Counsel for

The Rutherford Institute authored this brief in its entirety. No person

or entity, other than the Institute, its supporters, or its counsel, made

a monetary contribution to the preparation or submission of this brief.

2 See, e.g., Wyoming v. Houghton, 526 U.S. 295 (1999), Slack

v. McDaniel, 529 U.S. 472 (2000), Illinois v. Wardlow, 528 U.S.

119 (2000); Florida v. J.L., 529 U.S. 266 (2000); Indianapolis v.

Edmond, 531 U.S. 32 (2000); Ferguson v. City of Charleston, 121

S.Ct. 1281 (2001), and Jilinois v. McArthur, 531 U.S. 326 (2001).

inchuding numerous Fourth Amendment cases. The Institute has

education classes in this area as well.

The issue presented by this Petition, the degree to which a

probationer can be searched “any tme of the day or night by any

peace officer,” is a question of great concern, insofar as it touches

upon how society deals with offenders and assures itself that the

offender does in fact comply with conditions of probation while on

a discretionary grant of probation. Counsel for amicus and The

Rutherford Institute have conducted extensive research on state

statutory authority for probation searches. Because of the breadth

of its knowledge on this subject, the Rutherford Institute believes

that its insights on this issue will be helpful to understand more

accurately the legal environment m California with respect to that

issue. Sup. Ct. Rule 15.2.

SUMMARY OF ARGUMENT

This Court has consistently held that for a search to be valid,

must either comply with the Fourth Amendment or be legislatively,

and expressly, authorized. Of the several states, District of

Columbia and the territories of the United States, only three states,

including California, permit search of a probationer any time of the

day or night by any peace officer. Of a large number of state

supreme courts that have considered the issue, all but three have

rejected such a scheme as unconstitutional. The Ninth Circuit

Court of Appeals’ decision is therefore consistent with stare decisis

from this Court and an overwhelming majority of state supreme

courts. As California has not legislatively authorized search and

seizure any time of the day or night by clear and unequivocal

language for those onprobation, the court should affirm the decision

of the Ninth Circuit based on stare decisis.

ARGUMENT

THE NINTH CIRCUIT’S DECISION IS IN ACCORD

WITH STARE DECISIS OF THIS COURT AND A

MAJORITY OF THE STATE COURTS THAT HAVE

CONSIDERED THE ISSUE

A. THERE Must BEACLEAR, EXPRESS, STATUTORY

AUTHORIZATION For A FOURTH AMENDMENT

WAIVER TO BE EFFECTIVE

While statutory authorization of warrantless searches is not the

sine qua non of a valid search, in the absence of an express

statutory authorization, traditional Fourth Amendment rules must

apply. Colonnade Corp. v. United States, 397 U.S. 72 (1970).

In Colonnade, a case arising under 26 USC §§ 5201(c), 5146,

and 7606 for possible violations of the Internal Revenue Code, the

agents sought evidence of violations and demanded entry to inspect

pursuant to a statutory authorization, which provided for sanctions

on refusal to permit entry but did not expressly provide for a

warrantless entry to search. The Court noted “Congress has broad

power to design such powers of inspection under the liquor laws as

it deems necessary to meet the evils at hand.” Colonnade, 397

U.S. at 76. It went on, however, to note “that administrative entry,

without consent, upon the portions of the commercial premises not

open to the public may only be compelled through prosecution or

physical force within the framework of a warrant procedure....” Jd.

at 76-77. The Court concluded, ““Where Congress has authorized

mspection but made no rules governing the procedure that

inspectors must follow, the Fourth Amendment and its various

restrictive rules apply.” /d. at 77; cf. United States v. Biswell, 482

U.S. 691 (1972) (express Congressional authorization; regulated

industry). In Payton v. New York, 445 U.S. 573 (1980), the

Court struck down a state statute that permitted warrantless

searches absent probable cause. See also G.M. Leasing Corp. v.

United States, 429 U.S. 338 (1977) (warrantless entry and seizure

of assets on company property unlawful); See v. Seattle, 387 U.S.

541 (1967) (warrantless administrative inspection in commercial

building unlawful); Silverthorne Lumber Co. v. United States,

251 U.S. 385 (1920); and cf. Illinois v. Krull, 480 U.S. 340,

349-355 (1986) (statutory scheme for inspection of junk dealers

held unconstitutional under state law) with New York v. Burger

482 U.S. 691, 699-703 (1987) (statutory inspection scheme of

junk dealers upheld). Consequently, where no express legislative

authorization exists that is reasonably related to the purposes of a

probation program, traditional Fourth Amendment procedures must

apply to avoid delegating unfettered discretion to peace officers.

All States make some provision for probation. Not 1] States

are consistent with what conditions should be required, and some

have not made any statutory provisions at all for conditions.’

> That there should be legislation, and uniformity in the legisiation,

is obvious in light of the states’ various enactments of the Uniform

Act for Out-Of-State Parolee Supervision. See United States Code

and state statutory provisions cited in Appendix A. The Act does not

provide for any particular conditions of probation, except as follows:

"(2) That each receiving state will assume duties of visitation and of

supervision over probationers or parolees of any sending state and in

the exercise of those duties will be governed by the same standards

that prevail for its own probationers and parolees." Cal. Pen. Code.

§ 11177. This provides for discriminatory treatment. For example, a

probationer from Illinois on supervision in California is subject to

searches “any time of the day or night by any probation officer or

peace officer" whereas a probationer from California on supervision

Insofar as Fourth Amendment search issues are concerned, the

most common condition found is consistent with the Model Penal

Code § 301.1(2)(j) "to report as directed to the Court or the

probation officer and to permit the officer to visit his home..."

Many States adopting the (j) provision add "and elsewhere." A few

States provide, in one form or another for the MPC § 301.1(2)(1)

"to satisfy any other conditions reasonably related to the

rehabilitation of the defendant and not unduly restrictive of his

liberty or incompatible with his freedom of conscience." See

Appendix B. Only two states, Illinois and North Carolina, have a

detailed procedure for warrantless searches by a probation officer.

Many States expressly provide for drug testing. No state, by

statute, expressly permits a warrantless search by peace officers.

See Appendix B.

in Illinois is subject to “visits by the probation officer at the

probationer's home or place of work at reasonable times."

Twenty-seven jurisdictions have express statutory provisions for

either visits, searches, or both, limited to the probation officer; one

permits the probation officer to use peace officers; none permit a

peace officer to conduct searches. Twenty-seven jurisdictions have

no express statutory provision for visits or searches by anyone; of

these, one, New Mexico, by administrative regulation, prohibits a

probation officer from conducting searches, requiring the officer to

pursue normal search procedures, but by case law allows a probation

officer to conduct searches. Courts in sixteen of the fifty-four

jurisdictions surveyed have considered the issue. Two, Arkansas and

Georgia, give greater latitude than expressly permitted by statute. In

the Arkansas case, on state grounds, the scope of the statute limiting

searches to probation offers was not discussed; the discussion

centered only on federal grounds and the 4th Amendment, pursuant

to Griffin. Eight found that the conditions imposed were rationally

related to a legitimate purpose of rehabilitating the probationer. Only

five were faced with a state statute which had nc express provisions

for visits or searches and of those five, on!y California permits

“blanket searches." See footnote 5 and Appendix B.

A requirement that the several States by legislation authorize in

the first instance the waiver of Fourth Amendment rights, with

necessary safeguards, is essential in view of the importance of this

issue, in order to give clear notice to those who must administer the_

program and those who must abide by the terms, provide clear

guidance to probationers on their duties and responsibilities,

provide for uniform treatment of probationers who are subject to

relocation and transfer, and to assure that appropriate consideration

is givento third parties and potential bystanders whose nghts should

not be impaired by unreasonable conditions of probation and

parole.

B. THis COURT HELD IN GRIFFIN THAT A STATE

Does HAVE A LIMITED INTEREST IN CLOSE

SUPERVISION OF THOSE JN CUSTODIA LEGIS

Regardless of the applicable standard, a probationer's, or

parolee's home, like everyone else's, is protected by the Fourth

Amendment's requirement that searches be "reasonable." Griffin

v. Wisconsin, 483 U.S. 868, 873 (1987) (probationer).‘

Supervision is a special need of the state permitting a degree of

impingement upon privacy that would not be constitutional if applied

to the public at large, but the permissible degree is not unlimited.

483 U.S. at 875. The "special needs" of a probation system make

the warrant system impracticable and justify the replacement of the

standard of probable cause by "reasonable ground." 483 U.S. at

875-76.

* The Court did not reach the question as to when a police officer

could search. In Griffin, the police officer reported that he thought

the probationer had a gun, but it was the probation officer, not the

police, who conducted the search.

are

In most jurisdictions, the result reached in Griffin v. Wisconsin

had been a foregone conclusion, with other courts having moved in

the direction of requiring at a minimum that a peace officer at least

have consulted with a probation officer.’ It would appear that

> E.g., State v. Cullison, 173 N.W.2d 533 (lowa 1970) (parolee;

unreasonable search); People v. Way, 319 N.Y.S.2d 16 (New York

1971)(parolee; limited scope); People v. Peterson, 233 N.W.2d 250,

254-55 (Mich. 1975) (blanket searches bh »=ace officers unlawful);

Temez v. State, 534 S.W.2d 686 (Tex. 1976); State v. McGivney,

585 P.2d 767 (Ore 1978); State v. Holm, 579 P.2d 860 (Ore. 1978)

(probation Officer; "any peace officer" too broad); Dearth v. State,

390 So.2d 108 (Fla. App. 1980) (conditions of probation; fact that

probationer agreed to ‘‘unfettered discretion" does not make void

condition voluntary); State v. Fogarty, 610 P.2d 140 (Mont. 1980)

(probation; search condition unconstitutional); State v. Fields, 686

P.2d 1379, 1389 (Haw. 1984)(probation: probable cause required);

Commonwealth v. La France, 525 N.E.2¢ 379 (Mass. 1988)

(search by probation officer); People v. Hellenthal, 465 N.W.2d 329

(Mich. 1990); State v. Gallagher, 675 P.2d 429 (N.M. 1984); State

v. Cumming, 262 N.W.2d 56 (S.D. 1978) (probation officer consent

required); State v. Gardner, 619 P.2d 847 (N.M. 1980) (state statute

silent; administrative code required probation officer to seek search

warrant, but actual condition imposed provided that probation officer

could conduct search; search led by probation officer valid); State v.

Perbix, 331 N.W.2d 14 (ND. 1983) (search consistent with statutes

permitting probation officer to search) [see now N.D.C.C. 15A-1343

adopting MOC (j)]. But see People v. Bravo, 43 Cal.3d 600 (1987);

Wilson v. State, 752 S.W.2d 46 (Ark. 1988) fee now ACA. §

5-4-303 adopting MPC (j)]; Allen v. State, 369 S.E.2d 909 (Ga.

1988) [see now O.C.G.A. § 45-8-35 adopting MPC (j); State v.

Finnegan, 439 N.W.2d 496 (Neb. 1989) (search "by any peace

officer" limited to part of drug rehabilitation program only); People

v. Hellenthal, 465 N.W.2d 329 (Mich. 1990) (drug search as part of

drug rehabilitation program approved). See generally, Annotation,

Validity of Requirement that, As Condition of Probation,

Defendant Submit to Warrantless Searches, 79 A.L.R. 3d 1083;

Califomia is the first state ever to expressly authorize “blanket

searches" of probationers without a warrant by any peace officer.

People v. Bravo, 43 Cal.3d 600 (1987). Bravo, however, was

decided only several days after Griffin, and cites Griffin only

once. 43 Cal.3d at 608. Bravo conflicts with Griffin in that

Califomia had no state detailed regulation of probation, unlike

Wisconsin, which authorized a departure from Fourth Amendment

warrants. In Griffin, there was an objective standard, approved

by the Court, which had to be met over and above being a mere

parolee, and there were detailed regulations covering the subject.

The Oregon experience is illuminating. The Supreme Court of

Oregon noted that while the courts had the power to impose

conditions of probation, and that while a "search and seizure"

condition may be appropriate, there was no express legislative

authority, suchconditions could not be unlimited, and that the courts

were not the means of defining that limit mm the first instance, but did

so reluctantly. Evidently the Oregon legislature took the hint

because it appears to have enacted legislation permitting a "search

and seizure" condition "by the probation officer, or any peace

officer assisting the probation officer." State v. Hovater, 588 P.2d

56 (1978); State v. Davis, 597 P.2d 1280 (1979).

The great weight of authority thus holds that neither a parolee

nor a probationer may be abused during authorized searches.

Given the purpose of probation and parole, the fact that the

probation and parole officers know their own charges better than

anyone else, and certainly more than a magistrate knows about

unknown citizens when issuing a search warrant, the Fourth

Amendment requires at a minimum that peace officers contact the

Annotation, Validity, Under Fourth Amendment, of Warrantless

Search of Parolee or His Property by Parole Officer, 32 A.L.R.

Fed 155.

parole or probation officer for permission to conduct a search of

the parolee or probationer, and no search unless so authorized is

valid, absent exigent circumstances, because the administration of

conditions of parole and probation are a non-delegable duty

necessary to rehabilitate the offender, yet prevent the exploitation

of such persons and the abuse of those not on probation. This

result is consistent with, and required by, this Court’ enunciated

tule of law which forbids the granting of “unfettered discretion” to

peace officers in the area of law enforcement. E.g., Florida v.

Wells, 95 U.S. 1 (1990) (inventory of containers where no state

policy authorizes inventory); Payton v. New York, 45 U.S. 573

(1980); 3 Rotunda, CONSTITUTIONAL TREATISE, § 20.9, p. 34.

It is for the courts to supervise probationers, through the probation

office, and not for peace officers, and such a delegation is simply

not permitted.

C. CALIFORNIA HAS No DETAILED RULES AND

REGULATIONS FOR THE IMPOSITION OF A

STATUTORY WAIVER OF THE FOURTH

AMENDMENT FOR THOSE ON PROBATION

California’s legislature has not clearly and unequivocally

authorized a condition of probation searches “by any peace officer

at any time of the day or night with or without a warrant, as a

Condition of Probation. See generally, Cal. Pen. C. §§ 1192.3(a),

1202.7, 1202.8(a), 1203(a), 1203.016°, 1203.1, 1203a, 1210.1.

6 This section, Electronic Home Detention Act of 1988, provides

for home detention and electronic monitoring as a means of reducing

local jail over crowding. It permits a peace officer, subject to the

Detention Administrator, to inspect the home for compliance and take

the person into custody without an arrest warrant when the system

is not operational.

There is no basis for the Attorney General’s reliance on Penal

Code § 1000.12 or § 3067. The former has to do with Delayed

Entry of Judgment (DEJ), a form of diversion wherein the

defendant, without a judgment being entered, is placed under the

custody of a probation officer for a period of rehabilitation. It is

designed solely for child abuse/molestation cases, and not available

to other offenses. California Stats. 1995, Chap. 935 (Appendix,

at C1), which enacted § 1000.12 (DEF) and two versions of §

1203.066 (Probation).’ Chapter 935 provides for “search any time

of the day or night” for those on DEF, but not for those on

probation. Surely, with the condition under consideration for DEJ,

the legislature could not have overlooked the possibility and failed

to duplicate the condition for probation, had they desired it. It is

circumstantial evidence, in light of the sister state legislation and

other Supreme Court decisions, to reject the holding of People v.

Bravo, 43 Cal.3d 600 (1987) and not to vest peace officers with

unfettered discretion in cases of probation. The latter provisions,

Pen. Code § 3067, is not relevant because that provision deals with

those on parole, i.e. a period of supervision after having served a

period of time in state prison.

This court’s decision in Colonnade, supra, is directly on point:

absent legislative approval in the first instance, the regulation is void

for lack of authority. Moreover, as discussed above, an

overwhelming number of state supreme courts agree that such a

provision is unconstitutional and therefore void.

’ — This case involved a question concerning conditions of probation,

neither DEJ nor parole. However, it is difficult in light of the

overwhelming evidence that unfettered discretion for such services

is impermissible to justify such a condition with respect to either Pen.

Code § 1000.12(c)(4)(4) or § 3067. ‘

CONCLUSION

WHEREFORE, for the reasons set forth above, the Court’s

amicus respectfully submits that this Court should affirm the

decision of the Ninth Circuit Court of Appeals.

Respectfully submitted,

James Joseph Lynch, Jr

Attorney At Law

Counsel of Record

2740 Howe Ave

P. O. Box 336

Sacramento, Ca 95812-0336

Office: (916) 448-7871

John W. Whitehead

Steven H. Aden

THE RUTHERFORD INSTITUTE

P. O. Box 336

Charlottesville, VA 22906-7482

Office: (804) 978-3888

Counsel for Amicus Curiae

THE RUTHERFORD INSTITUTE

August 21, 2001

TABLE OF APPENDICES

APPENDIX A - United States and State Statutes........

APPENDIX B - State Statutory Comparison ...........

APPENDIX C - Calif. Stats. 1995, Ch. 935 ...........

Page | of |

APPENDIX A

4 USC, §§ 112

Ala. Code § 15-22-1

Alaska Stat. §§ 33.36.110, 33.36.120

Ariz. Rev. Stat. §§ 31-461 to 31-465

Ark. Code Ann. § 5-4-303

Ark. Code. Ann. §§ 16-93-901 to 16-93-903

Cal. Pen. Code §§ 11175 to 11179

Colo. Rev. Stat. § 16-11-204(i)

Colo. Rev. Stat §§ 24-60-301 to 24-60-309

Conn. Gen. Stat. §§ 54-132 to 54-138

D.C. Code 1981, §§ 24-251 to 24-253

Del. Code 11 §§ 4358, 4359

Fla. Stat. § 949.07

Ga. Ann. §§ 49-2-70, 49-2-71

Hawaii Rev. Stat. §§ 353-81, 353-82

Idaho Code §§ 20-301, 20-302

Ill.. 730 ILS.H.A. 5/3-3-11

Ind. Code Ann. § 11-13-4-1, 11-13-4-2

lowa Code Ann. § 907A.1

Kan. Stat. Ann. § 22-4101

Ky. Rev. Stat. § 439.560

La. Rev. Stat. 15:574

Mass. Ann. Laws ch. 127, §§ 151A to 151G

Md. Code 1957, art. 41, §§ 4-801 to 4-803

Me. Rev. Stat. 34-A § 9801, et seq.

Mich. Stat. Ann. §§ 798.101 to 798.103

Minn. Stat. § 243.16

Miss. Code 1972, § 47-7-71

Mo. Rev. Stat. § 217.810

Mont. Code Ann. §§ 46-23-1101 to 46-23-1106

N.C.G.S. §§ 148-65.1 to 148-65.2

N.D.C.C. § 12-56-01, 12-56-02

N.H. Rev. Stat. 651-A:25

N.J. Stat. Ann. 2A:168-14 to 2A:168-17

N.Y. Executive Law § 259-m

Neb. Rev. Stat. 1943, §§ 29-2637 to 29-2638

Nev. Rev. Stat. 213.180 to 213.210

Ohio Rev. Code §§ 5149.17 to 5149.23

Okl. St. Ann. 57 §§ 347 to 349

Ore. Rev. Stat. 144.610 to 144.620

Pa. Stat.61 §§ 321,322 2!

Puerto Rico Law 4 §§ 637 to 639

R.I. Gen. Laws 1956 §§ 13-9-1 to 13-9-2

S.C. Code 1976 24-21-810 to 24-21-830

S.D.C.L. 24-16-1 to 24-16-5

Tenn. Code Ann. § 40-28-401

Tex. C.C.P. art. 42.11

Utah Code Ann. 1953, 77-27-24 to 77-27-31

Va. Code 1950, §§ 53.1-166, 53.1-167

Virgin Islands Code 5 §§ 4631 to 4633

Vt. Stat. 28 § 1301 -

W.Va. Code, 28-6-1, 28-6-2

Wash. Rev. Code 9.95.270

Wis. Stat. Ann. 304.13

Wyo. Stat. 1977, § 7-13-412 to 7-13-417

APPENDIX B

Section |: Jurisdictions incorporating Model Penal Code

§301.1(2)(j), requiring probationers “to report as directed to the

Court or the probation officer and to permit the officer to visit his

home ....":

tate As of 1993 As of 2001

rk Code Ann. § 54-303 To Section 2a

iGa 0.C.G.A. § 45-8-35 To Section 2

Ind A.LC. 35-38-2-2.3 To Section 2

Kan S.A. 21-4610 To Section 2

Ky RS 533.030 To Section 2

La RS. 15:574.4 To Section 2

Me R.S.A. § 1204 To Section 2

Neb | RRS. 1993, § 29-2262 JR.R.S. 1993, § 29-2262(2)(k)

NJ S.A. 2C:45-1 S.A. 2C:45-1(b)(10)

N.Y Penal Law § 65.10 To Section 2

Pa. 42 Pa CSA § 9754 42 Pa CSA § 9754(C)(10)

Section 2: Jurisdictions incorporating Model Penal Code

§301.1(2)(j) and adding "and elsewhere:"

[a From Section! | CCRP 895(4)

Me From Section | 17-49-1204.2-A(j)

Miss Code 1972, § 47-7-35 | Code 1972, § 47-7-35(e)

N.D. C.C. § 12.1-32-07* C.C. § 12.1-32-07.4(h)

N.Y From Section | Penal Law § 65.10.2(a)

[re RS § 137.540 RS § 137.540

M Stat 28 § 252* Stat 28 § 252(b)(10)*

* Limited to Reasonable times.

Section 2a: Jurisdictions using an analogous Model Penal

Code § 301.1(2)(j), requiring probationers “to report as directed

to the Court or the probation officer and to permit the officer to visit

his work, and elsewhere ....":

Biate | As of 1993 ] As of 2001 ]

wrk | New |_ Code Ann. § 5-4-303(2)(j)_]

Section 3: Jurisdictions incorporating Model Penal Code

§301.1(2)(1), requiring probationers “‘to satisfy any other conditions

reasonably related to the rehabilitation of the defendant and not

unduly restrictive of his liberty or incompatible with his freedom of

conscience”:

Btate As of 1993 As of 2001

US 18 USC, § 3563 18 USC, § 3563

1A] From Section 6 15-22-52(4)

Ark Code Ann. § 54-303 Code Ann. § 54-303

Colo R.S.A. § 16-11-204(i) 16-11-204(2)(x)

Fla. S.A. § 948.03 S.A. § 948.03(1)(b)

Ga From Section | 0.C.G.A. § 42-8-35(4)

Hawaii RS § 706-624 RS § 706-624(f)

ml. 730 ILCS 5/5-6-3 730 ILCS 5/5-6-3(a)(5) & 3.1

Ind. From Section | AIC 35-38-2-2.3(a)(10)

Kan. From Section | S.A. 21-4610(c)(4)

Ky From Section | RS 533.030(2)(j)

Btate As of 1993 As of 2001

US 18 USC, § 3563 18 USC, § 3563(b)

rk Code Ann. § 54-303 Code Ann. § 54-303(e)(1)

Hawaii RS § 706-624 RSs § 706.624(2)

Ty 730 ILCS 5/5-6-3 730 ILCS 5/5-6-3

N.J N.J.S.A. 2C:45-1(b)(12) | N.J.S.A. 2C:45-1(b)(12)

Pa. Stat. 42 § 9754 42 Pa CSA § 9754(c)(13)

Section 4: Jurisdictions with detailed procedures for

warrantless searches by a probation officer:

State As of 1993 As of 2001

Ty 730 ILCS 5/5-6-3 730 ILCS 5/5-6-3(a)(5)

N.C. G.S. § ISA-1343(b)(5) G.S. § ISA-1343(b)(3)*

[Ohio New ORC 2951.02(C)(2)*

* Limited to searches by probation officers

Section 5: Jurisdictions that expressly provide for drug

testing:

Btate As of 1993 As of 2001

US 18 USC, § 3563 18 USC, § 3563

Ariz R.S. §13-914 R.S. §13-914

Fla. S.A. § 948.03 S.A. § 948.03(2)

Hi, RS § 706-624 RS § 706-624

ll. CS 5/3-6-3 S.H.A. 730 CS 5/3-6-3 S.H.A. 730

ind. A.L.C. 35-38-2-2.3 A.1.C, 35-38-2-2.3(a)(10)

Md New Art 27, § 64(a)(1)(ii)1.

Me R.S.A. § 1204 R.S.A. § 1204

MI New 773.1(2)(g)

Miss Code 1972, § 47-7-35 Code 1972, § 47-7-35

Neb. R.R.S. 1993, § 29-2262 R.R.S. 1993, § 29-

2262(2)(n)

Nev R.S. 176.185 to 176.227 | RS. 176.185 to 176.227

N.D. C.C. § 12.1-32-07 C.C. § 12.1-32-07

Dk. New St. Anno. 2.2-991,

991A.1.k., .p, & .y

Dre. RS § 137.540 RS § 137.540

Puerto Law 34 § 1027a Law 34 § 1027a

Rico

Ann. C.Cr.P. art. 42.12, §

Section 6: Jurisdictions silent on the issue of consent to search:

Btate As of 1993 As of 200

US 18 USC, § 3563 18 USC, § 3563

Ala Code 1975, § 15-22-29 Code 1975, § 15-22-29

Alaska Stat. § 12.55.100 Stat. § 12.55.100

R.S. §§ 12-299, et seq. R.S. §§ 13-901 et seq.

Pal. Pen. C. §§ 11175tol1179 | Pen. C. §§1203, 1203.1,

1117£tol 1179

Conn. G.S.A. § 53a-30 G.S.A. § 53a-30

Del. Code 11 § 4332 Code 11 § 4332

D.C. | Code 1981, §§ 24-101 to | Code 1981, §§ 24-101 to 24-

24-106 106

idaho | C. §§ 19-2601 to 19-2607 | C. §§ 19-2601 to 19-2607

lowa C.A. § 907.6 C.A. § 907.6

d. | Code 1957, art. 27, § 641, | Code 1957, art. 27, § 641,

641A 641A

Mass |G.L.A. C. 276, § 387, 387A| G.L.A. C. 276, § 387, 387A

Mich C.L.A. § 771.3 C.L.A. § 771.3

Minn S.A. § 609.135 S.A. § 609.135

0. V.A.M.S. § 217.705 V.A.M.S. § 217.705,

f 559.016

Mont. JCA §§ 46-1-202, 46-18-201,] CA §§ 46-1-202, 46-18-201,

46-23-1001 46-23-1001

N.H. RSA 651:2 RSA 651:2

N.M S.A. 1978, § 31-21-21 S.A. 1978, § 31-21-21

Dhio R.C. § 2951.02 R.C. § 2951.02???2(c)(1)

Dk! St. Ann. 22 § 991a St. Ann. 22 § 991a

RI. | G.L. 1956 §§ 12-19-8, 21- GL. 1956 § 12-18.1-1

284.21

B.C. Code 1976 § 24-21-430 Code 1976 § 24-21-430

5.D. C.L. 23A-27-18 C.L. 23A-27-18

Tenn C.A. § 40-35-303 C.A. § 42.01

Utah Code 1953 § 77-18-1 Code 1953 § 77-18-1

Virgin Code S § 3711 Code S § 3711

}slands

" Code 1950, § 19.2-303 | Code 1950, §§ 19.2-123,

19.2-303

Wash.| Rev. Code § 9-95-210 Rev. Code § 9-95-210

W.Va. Code § 62-12-9 Code § 62-12-9

Wis. S.A. § 973.09 S.A. § 973.09

Wyo. | Stat. 1977 § 7-13-30 Stat. 1977 § 7-13-30

Section 6: Jurisdictions expressly permitting search and

seizures by any peace officer at any time:

Btate | As of 1993 | As of 2001 *

CA _ | |---- |_P.C. § 1000.12(c)(4)(D)*_|

*DEJ, not probation, and limited to those involved in child

abuse/molestation.

APPENDIX C

CALIFORNIA STATUTES

BILL NUMBER: SB 816 CHAPTERED 10/16/95

[1995 Stats.]| CHAPTER 935

FILED WITH SECRETARY OF STATE

OCTOBER 16, 1995

APPROVED BY GOVERNOR OCTOBER 15, 1995

PASSED THE SENATE SEPTEMBER 13, 1995

PASSED THE ASSEMBLY SEPTEMBER 1, 1995

AMENDED IN ASSEMBLY AUGUST 31, 1995

AMENDED IN ASSEMBLY AUGUST 24, 1995

AMENDED IN ASSEMBLY JULY 5, 1995

AMENDED IN SENATE MAY 23, 1995

AMENDED IN SENATE MAY 17, 1995

INTRODUCED BY Senator Peace

(Coauthor: Senator Kopp)

(Coauthor: Assembly Member Rainey)

FEBRUARY 23, 1995

An act to amend Section 13964 of the Government Code,

to amend Sections 288.1, 1000.12, and 1203.066 of the Penal

Code, and to amend Section 656 of the Welfare and Institutions

Code, relating to children.

LEGISLATIVE COUNSEL'S DIGEST

SB 816, Peace. Children: sexual abuse.

(1) Existing law authorizes the State Board of Control to

provide assistance to, among others, derivative victims of crimes,

including the parent ofa child who has been sexually abused, unless

the board makes certain findings, including the fact that the parent

failed to cooperate with a law enforcement agency in the

apprehension and conviction of the perpetrator. This bill would

specify that a parent shall not be considered uncooperative under

these provisions if the parent cooperates with the prosecution or

Child Protective Services by providing assistance to law

enforcement in the disposition of the case.

(2) Existing law provides for the granting of probation to,

and deferred entry of judgment and treatment of, specified child

molesterwho may be feasibly rehabilitated inrecognized treatment

programs. This bill would revise the standards applicable to a ~

recognized treatment program, as defined.

(3) Existing law provides that the court may not suspend the

sentence of a specified child molester until the court obtains a

report on the offender's mental condition from a reputable

psychiatrist or psychologist, as provided. This bill instead would

provide that the court may not suspend the sentence of a specified

child molester until the court obtains that report from a reputable

psychiatrist or psychologist, or from a recognized treatment

program referred to in (2) above. The bill would make various

technical changes.

(4) This bill would incorporate additional changes in Section

656 of the Welfare and Institutions Code enacted by AB 817 (Ch.

313, Stats. 1995). This bill would incorporate additional changes

in Section 1 203.066 of the Penal Code enacted by AB 1491 (Ch.

48, Stats. 1995). It would also incorporate additional changes in

that section proposed by AB 95, to be operative only if AB 95 and

this bill are both chaptered and become effective on January |,

1996, and this bill is chaptered last.

THE PEOPLE OF THE STATE OF CALIFORNIA DO

ENACT AS FOLLOWS:

SECTION 1. Section 13964 of the Government Code is

amended to read:

* KKK

SEC. 2. Section 288.1 of the Penal Code is amended to read:

SEC. 3. Section 1000.12 of the Penal Code is amended to

read:

1000.12. (a) It is the intent of the Legislature that nothing in

this chapter deprive a prosecuting attorney of the ability to

prosecute any person who is suspected of committing any crime in

which a minor is a victim of an act of molester, abuse, or neglect

to the fullest extent of the law, if the prosecuting attorney so

chooses.

(b) Except as provided in subdivision (c), in lieu of

prosecuting a person suspected of committing any crime, involving

a minor victim, of an act of abuse or neglect, the prosecuting

attorney may refer that person to the county department in charge

of public social services or the probation department for counseling judgment and treatment of defendants described in

or psychological treatment and such other services as the paragraph (1), which shall include, but not be limited to,

department deems necessary. The prosecuting attorney shall seek all of the following:

(3) The office of the prosecuting attorney shall

promulgate eligibility standards for deferred entry of

the advice of the county department in charge of public social

services or the probation department in determining whether or not

to make the referral.

motion to the trial court to defer entry of judgment with respect to

any crime charged in which a minor is a victim of an act of

molesteror sexualabuse, provided that the defendant pleads guilty

to all crimes and enhancements charged. Upon that motion and

defendant's plea of guilty to all charges and enhancements, the court

may defer entry of judgment, contingent upon the defendant's

referral to, and completion of, a treatment program approved by

the prosecuting attorney. Upon the defendant's successful

completion of the treatment program, and upon the positive

recommendation of the treatment program authorityand the motion

of the prosecuting attorney, but no sooner than five years from the

date of the defendant's referral to the treatment program, the court

shall dismiss the charge or charges against the defendant.

(2) Upon any failure of treatment under the program

described in paragraph (1), the prosecuting attorney may

make a motion to the court for entry of judgment and the

court shall, upon a finding of failure of treatment based

ona preponderance ofevidence, enter judgment upon the

defendant's pleas and admissions, and schedule a

sentencing hearing as otherwise provided in this code.

(A) Deferred entry of judgment for the

defendant is in the best interests of the minor

(B) Rehabilitation of the defendant is feasible

in a recognized treatment program, as defined in

Section 1203.066, designed to deal with child

molester, abuse, or neglect, as specifically

related to the charges made.

victim if entry of judgment is deferred.

(D) No person shall be deemed eligible for

deferred entry of judgment under this section

unless he or she pleads guilty to all charges and

enhancements.

(E) Deferred entry of judgment shall not

apply to any person who is charged under

subdivision (b) of Section 288, or any sexual

offense involving force, violence, duress, menace,

or fear of immediate and unlawful bodily injury on

the minor victim or another person.

(F) Any person who applies for deferred

entry of judgment under this section shall also

meet all of the requirements for the counseling

program delineated under Section 1000.13.

(4) Deferred entry of judgment shall be granted

upon the following terms:

(A) Defendant shall seek and participate in

a rehabilitation program as prescribed by the

(B) Defendant shall not use, handle, or have

in his or her possession manjuana, narcotics,

dangerous drugs, or controlled substances of any

kind, unless lawfully prescribed for the defendant

by a licensed physician.

known or reputed users or sellers of marijuana,

dangerous drugs, or narcotics, or be in places

where narcotics or dangerous drugs are present.

(D) Defendant shall submit his or her

person, property, automobile, and any object

underhis or her control to search and seizure

in or out of the presence of the defendant, by

any law enforcement officer or probation

officer.

(E) Unification with the family or

unsupervised contact with the minor victim or any

other minor shall be prohibited except upon

recommendation of the treatment program and

motion of the district attorney and order of the

court.

(F) Any violation of the law constitutes a

failure of treatment.

SEC. 4. Section 1203.066 of the Penal

Code is amended to read:

1203.066. (a) Notwithstanding Section

1203 or any other law, probation shall not be

granted to, nor shall the execution or umposition

of sentence be suspended for, nor shall a finding

bringing the defendant within the provisions of this

section be stricken pursuant to Section 1385 for,

any of the following persons:

(1) A person who is convicted of violating Section

288 or 288.5 when the act is committed by the use of

force, violence, duress, menace, or fear of immediate and

unlawful bodily injury on the victim or another person.

(2) A person who caused bodily injury on the child

victim in committing a violation of Section 288 or 288.5.

(3) A person who is convicted of a violation of

Section 288 or 288.5 and who was a stranger to the child

victim or befriended the child victim for the purpose of

committing an act in violation of Section 288 or 288.5,

unless the defendant honestly and reasonably believed the

victim was 14 years of age or older.

(4) A person who used a weapon during the

commission of a violation of Section 288 or 288.5.

(5) A person who is convicted of committing a

violation of Section 288 or 288.5 and who has been

previously convicted of a violation of Section 261, 262,

264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a, or

289, or of assaulting another person with intent to commit

a crime specified in this paragraph in violation of Section

220, or who has been previously convicted in another

state of an offense which, if committed or attempted in

this state, would constitute an offense enumerated in this

paragraph.

(6) A person who violated Section 288 or 288.5

bie hiideemntnn Gee chili vietion in vieiation of Gectt

207, 208, or 209.

(7) A person who is convicted of committing a

violation of Section 288 or 288.5 against more than one

(8) A person who, in violating Section 288 or

288.5, has substantial sexual conduct with a victim who

is under 14 years of age.

(9) A person who, in violating Section 288 or

288.5, used obscene matter, as defined in Section 311,

or matter, as defined in Section 311, depicting sexual

conduct, as defined in Section 311.3.

(b) "Substantial sexual conduct" means

penetration of the vagina or rectum of either the

victim or the offender by the penis of the other or

by any foreign object, oral copulation, or

masturbation of either the victim or the offender.

subdivision (a) shall not apply when the court

makes all of the following findings:

(1) The defendant is the victim's natural parent,

adoptive parent, stepparent, relative, or is a member of

the victim's household who has lived in the victim's

household.

(2) A grant of probation to the defendant is in the

best interest of the child.

(3) Rehabilitation of the defendant is feasible, the

defendant is amenable to undergoing treatment, and the

defendant is placed in a recognized treatment program

designed to deal with child molestation immediately after

the grant of probation or the suspension of execution or

imposition of sentence.

(4) The defendant is removed from the household of

of the victim would be served by returning the defendant

to the household of the victim. While removed from the

household, the court shall prohibit contact by the

defendant withthe victim, except the court may permit the _

supervised contact, upon the request of the director of the

court ordered supervised treatment program, and withthe

agreement of the victim and the victim's parent or legal

guardian, other than the defendant. As used in this

paragraph, "contact with the victim” includes all physical

contact, being in the presence of the victim,

communication by any means, any communication by a

third party acting on behalf of the defendant, and any

gifts.

(5) There is no threat of physical harm to the child

victim if probation is granted. The court upon making its

findings pursuant to this subdivision is not precluded from

sentencing the defendant to jail or prison, but retains the

discretion not to do so. The court shall state its reasons

on the record for whatever sentence it imposes on the

defendant. The court shall order the psychiatrist or

psychologist who is appointed pursuant to Section 288.1

to include a consideration of the factors specified in

paragraphs (2), (3), and (4) in making his or her report to

the court.

(d) The existence of any fact that would

make a person ineligible for probation under

subdivision (a) shall be alleged in the accusatory

pleading and either admitted by the defendant in

open court or found to be true by the jury trying

the issue of guilt or by the court where guilt is

established by plea of guilty or nolo contendere

or by trial by the court sitting without a jury.

(e) As used in this section and in Section

1000.12, the following terms apply:

(1) “Recognized treatment program" means a

program with substantial expertise in the treatment of

children who are victims of sexual abuse, their families,

and offenders, that demonstrates to the court all of the

following

C10

(A) An integrated program of treatment and

assistance to victims and their families.

(B) A treatment regimen designed to

specifically address the offense.

(2) "Integrated program of treatment and assistance

to victims and their families" means that the program

provides all of the following:

(A) A full range of services necessary to the

recovery of the victim and any nonoffending

members of the victim's family, including

individual, group, and family counseling as

necessary.

(B) Interaction with the courts, social

services, probation, the district attorney, and

other government agencies to ensure appropriate

help to the victim's family.

as required by law, for the offender.

(f) For purposes of this section and Section

1000.12, a program that provides treatment only

to offenders and does not provide an integrated

program of treatment and assistance to victims

and their families is not a recognized treatment

program.

Cll

SEC. 5. Section 1203.066 of the Penal

Code is amended to read:

1203.066. (a) Notwithstanding Section

1203 or any other law, probation shall not be

granted to, nor shall the execution or imposition

of sentence be suspended for, nor shall a finding

bringing the defendant within the provisions of this

section be stricken pursuant to Section 1385 for,

any of the following persons:

(1) A person who is convicted of violating

Section 288 or 288.5 when the act is committed

by the use of force, violence, duress, menace, or

fear of immediate and unlawful bodily injury on

the victim or another person.

(2) A person who caused bodily injury on

the child victim in committing a violation of

Section 288 or 288.5.

(3) A person who is convicted of a violation

of Section 288 or 288.5 and who was a stranger

to the child victim or befriended the child victim

for the purpose of committing an act in violation

of Section 288 or 288.5, unless the defendant

honestly and reasonably believed the victim was

14 years of age or older.

(4) A person who used a weapon during

the commission of a violation of Section 288 or

288.5.

C12

(5S) A person who is convicted of

committing a violation of Section 288 or 288.5

and who has been previously convicted of a

violation of Section 261, 262, 264.1, 266, 266c,

267, 285, 286, 288, 288.5, 288a, or 289, or of

assaulting another person with intent to commit a

crime specified in this paragraph in violation of

Section 220, or who has been previously

convicted in another state of an offense which, if

committed or attempted in this state, would

constitute an offense enumerated in this

paragraph.

(6) A person who violated Section 288 or

288.5 while kidnapping the child victim in

violation of Section 207, 209, or 209.5. ~

(7) Aperson who is convicted of committing

a violation of Section 288 or 288.5 against more

than one victim.

(8) A person who, in violating Section 288

or 288.5, has substantial sexual conduct with a

victim who is under 14 years of age.

(9) A person who, in violating Section 288

or 288.5, used obscene matter, as defined in

Section 311, or matter, as defined in Section

311, depicting sexual conduct, as defined in

Section 311.3.

(b) "Substantial sexual conduct" means

penetration of the vagina or rectum of either the

C13

victim or the offender by the penis of the other or

by any foreign object, oral copulation, or

masturbation of either the victim or the offender.

subdivision (a) shall not apply when the court

makes all of the following findings:

(1) The defendant is the victim's natural parent,

adoptive parent, stepparent, relative, or is a member of

the victim's household who has lived in the victim's

household.

(2) A grant of probation to the defendant is in the

best interest of the child.

(3) Rehabilitation of the defendant is feasible, the

defendant is amenable to undergoing treatment, and the

defendant is placed in a recognized treatment program -

designed to deal with child molestation immediaiely after

the grant of probation or the suspension of execution or

imposition of sentence.

(4) The defendant is removed from the household of

of the victim would be served by returning the defendant

to the household of the victim. While removed from the

household, the court shall prohibit contact by the

defendant with the victim, except the court may permit

supervised contact, upon the request of the director ofthe

court-ordered supervised treatment program, and with

the agreement of the victim and the victim's parent or legal

guardian, other than the defendant. As used in this

C14

paragraph, "contact with the victim" includes all physical

contact, being im the presence of the victim,

communication by any means, any communication by a

third party acting on behalf of the defendant, and any

gifts.

(5) There is no threat of physical harm to the child

victim if probation is granted. The court upon making its

findings pursuant to this subdivision is not precluded from

sentencing the defendant to jail or prison, but retains the

discretion not to do so. The court shall state its reasons

on the record for whatever sentence it imposes on the

defendant. The court shall order the psychiatrist or

psychologist who is appointed pursuant to Section 288.1

to include a consideration of the factors specified in

paragraphs (2), (3), and (4) inmaking his or her report to

the court.

(d) The existence of any fact that would

make a person ineligible for probation under

subdivision (a) shall be alleged in the accusatory

pleading and either admitted by the defendant in

open court or found to be true by the jury trying

the issue of guilt or by the court where guilt is

established by plea of guilty or nolo contendere

or by trial by the court sitting without a jury.

(e) As used in this section and in Section

1000.12, the following terms apply:

(1) "Recognized treatment program" means a

program with substantial expertise in the treatment of

children who are victims of sexual abuse, their families,

C15

and offenders, that demonstrates to the court all of the program.

following:

SEC. 6. Section 656 of the Welfare and

(A) An integrated program of treatment and Institutions Code, as amended by Chapter 313 of

assistance to victims and their families. the Statutes of 1995, is amended to read:

(B) A treatment regimen designed to 656. A petition to commence proceedings

specifically address the offense. in the juvenile court to declare a minor a ward of

the court shall be verified and shall contain all of

(2) "Integrated program of treatment and assistance (a) The name of the court to which it is

to victims and their families" means that the program addressed.

provides all of the following:

(b) The title of the proceeding.

(A) A full range of services necessary to the

recovery of the victim and any nonoffending (c) The code section and subdivision under

members of the victim's family, including which the proceedings are instituted.

individual, group, and family counseling as

necessary.

(B) Interaction with the courts, social

services, probation, the district attorney, and

other government agencies to ensure appropriate

help to the victim's family.

as required by law, for the offender.

(f) For purposes of this section and Section

1000.12, a program that provides treatment only

to offenders and does not provide an integrated

program of treatment and assistance to victims

and their families is not a recognized treatment

C16

(d) The name, age, and address, if any, of

the minor upon whose behalf the petition is

brought.

(e) The names and residence addresses, if

known to petitioner, of both of the parents and

any guardian of the minor. If there is no parent or

guardian residing within the state, or if his or her

place of residence is not known to petitioner, the

petition shall also contain the name and residence

address, if known, of any adult relative residing

within the county, or, if there are none, the adult

relative residing nearest to the location of the

court.

C17

(f) A concise statement of facts, separately

stated, to support the conclusion that the minor

upon whose behalf the petition is being brought is

a person within the definition of each of the

sections and subdivisions under which the

proceedings are being instituted.

(g) The fact that the minor upon whose

behalf the petition is brought is detained in

custody or is not detained in custody, and ifhe or

she is detained in custody, the date and the

precise time the minor was taken into custody.

(h) A notice to the father, mother, spouse, or

other person liable for support of the minor child,

that:

(1) Section 903 may make that person, the estate of

that person, and the estate of the minor child, liable for

the cost of the care, support, and maintenance of the

minor child in any county institution or any other place in

which the child is placed, detained, or committed

pursuant to an order of the juvenile court,

(2) Section 903.1 may make that person, the estate

of that person, and the estate of the minor child, liable for

the cost to the county of legal services rendered to the

minor by a private attorney or a public defender

appointed pursuant to the order of the juvenile court;

(3) Section 903.2 may make that person, the estate

of that person, and the estate of the minor child, liable for

the cost to the county of the probation supervision of the

C18

minor child by the probation officer pursuant to the order

of the juvenile court; and

(4) the liabilities established by these sections are

(i) In a proceeding alleging that the minor

comes within Section 601, notice to the parent,

guardian, or other person having control or

charge of the minor that failure to comply with the

compulsory school attendance laws is an

infraction, which may be charged and prosecuted

before the juvenile court judge sitting as a

municipal court judge. In those cases, the

petition shall also include notice that the parent,

guardian, or other person having control or

charge of the minor has the right to a hearing on

the infraction before a judge different than the

judge who has heard or is to hear the proceeding

pursuant to Section601. The notice shall explain

the provisions of Section 170.6 of the Code of

Civil Procedure.

(j) Ifa proceeding is pending against a minor

child for a violation of Section 594.2, 640.5,

640.6, or 640.7 of the Penal Code, a notice to

the parent or legal guardian of the minor that if the

minor is found to have violated either or both of

these provisions that (1) any community service

which may be required of the minor may be

performed in the presence, and under the direct

supervision, of the parent or legal guardian

pursuant to either or both of these provisions; and

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(2) if the minor is personally unable to pay any

fine levied for the violation of either or both of

these provisions, that the parent or legal guardian

of the minor shall be liable for payment of the fine

pursuant to those sections.

(k) A notice to the parent or guardian of the

minor that if the minor is ordered to make

restitution to the victim pursuant to Section

730.6, or topay fines or penalty assessments, the

parent or guardian may be liable for the payment

of restitution, fines, or penalty assessments.

SEC. 7. Section 5 of this bill incorporates

amendments to Section 1203.066 of the Penal

Code proposed by both this bill and AB 95. It

shall only become operative if (1) both bills are

enacted and become effective on January 1,

1996, (2) each bill amends Section 1203.066 of

the Penal Code, and (3) this bill is enacted after

AB 95, in which case Section 4 of this bill shall

not become operative.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.