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Posted by Fay Arfa | Jul 11, 2017 | 0 Comments

SANTA ANA, Calif. – The Orange County District Attorney's Office (OCDA) strongly opposes three California State Senate bills that change firearm sentencing enhancement requirements, bail and pretrial release, and sex offender registration. Crime victims' rights leaders Dr. Henry T. Nicholas III (Marsy's Law) and Erin Runnion (The Joyful Child Foundation) joined the OCDA at the news conference to voice their opinions.

Senate Bill 620 – Firearm Sentencing Enhancements

In my lengthy experience as both a judge and a prosecutor, I have found that the ‘10-20-life' law has been simple and effective. Let's lock away the criminals who commit the worst crimes while using a gun.” – District Attorney Tony Rackauckas

California's “10-20-life: Use a Gun and You're Done” law, Penal Code 12022.53, was enacted in 1997 and provides a criminal enhancement to California state prison sentences for certain serious felonies including murder, kidnapping, robbery, carjacking, and rape when the perpetrator uses a gun during the commission of a crime. As the law stands today, a criminal who uses a gun while committing any of the above-mentioned crimes, is subject to an enhancement which adds 10 years in prison, 20 years for firing the gun, and 25 years to life for killing or seriously injuring someone during the commission of said crime. The enhancement is in addition to and consecutive to the underlying felony conviction.

SB 620 would allow the judge, at the time of sentencing, to strike or dismiss firearm sentencing enhancement otherwise required to be imposed by Penal Code 12022.5. Any person who uses a firearm during the commission of any felony shall be punished by an additional and consecutive term in prison of three, four, or 10 years, and currently, “The court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”

The gun enhancement laws have been a very effective vehicle in which to deliver public safety through the incarceration of criminals who commit the worst crimes while using a gun. SB 620 would essentially minimize a felon's use of a firearm during the commission of a crime.

Senate Bill 10 – Bail and Pretrial Release

“This would result in significant and undue stress to the victim, as they may be forced to face their attacker within days of their assault. In 1990, I co-authored Proposition 115, which streamlined the judicial process and protected victims from having to testify multiple times. SB 10 would throw away the protections afforded to victims through Proposition 115.” – District Attorney Tony Rackauckas

SB 10 would eliminate fixed bail schedules for certain serious/violent offenses and allow pretrial release based on what the offender can afford, requiring a judge to set bail at the least restrictive level necessary to assure appearance of the defendant in court as required.

Current Bail System Under SB 10
When the court sets bail, “Public safety shall be the primary consideration.”
  • “Public safety, the safety of the victim, and the probability of the accused appearing in court shall be the primary considerations.”
  • The court must also consider a “presumption of innocence.”
For drug violations, consideration is given to the amount in possession. No consideration will be given to specific drug violation or the weights/amount of drugs in possession. Instead, pretrial release determination must be made “without unnecessary delay.”
The court determines the bail amount based on public safety, the seriousness of the offense, and the probability that the offender will appear at trial. The presumptive bail schedule is in favor of public safety rather than pretrial release.
  • SB 421 requires establishing a “Pretrial Services Agency” to conduct risk assessments and reports on new arrestees for the judge's consideration in setting bail, including how much the defendant can afford.
  • A judge shall NOT set monetary bail in an amount that results in pretrial detention solely because of inability to pay.
  • Misdemeanor offenders released on recognizance (with few exceptions)
  • Felony offenders receive pretrial services to determine conditions of release; even “Strike” offenders can obtain a “risk assessment” and be considered for release.
A judge cannot reduce bail below the schedule for serious/violent felony without finding unusual circumstances on the record justifying the reduction.

Example of current bail schedules:

Murder = $1 million bail

Human trafficking = $250,000 bail

General felony = $20,000 bail

  • Completely repeals the bail schedule system
  • Judge must consider pretrial services risk assessment and recommendations and set nonmonetary condition(s)
  • A person shall not be required to pay for nonmonetary conditions unless they have the financial ability to pay part or all of the costs.
  • “Monetary bail shall be set at the least restrictive level necessary to assure appearance of the defendant in court as required,” if bail is set
  • Prosecutor must file a motion to request pretrial detention for those accused of capital offenses, or felonies involving violence, sexual offenses and felonies with specific threats to harm witnesses, and the defendant is entitled to a hearing within 48 hours— their victim may be required to be cross-examined by the defendant.
Peace officers can file a declaration to increase bail under certain circumstances (i.e. if he or she believes the scheduled amount is insufficient to ensure appearance or protection of the victim).
  • Peace officers would only be allowed to file a bail increase declaration within a specified number of hours of arrest and would only allow for the application of additional conditions of release, not a monetary increase in bail.

Senate Bill 421 – Sex Offender Registration

“Minimizing and reducing sex offender registration violates the promise we made to our crime victims when we told them that they would always know where their perpetrators live.” – District Attorney Tony Rackauckas

California's Sex Offender Registration Act (also known as “Megan's Law”) requires anyone who lives in California and was convicted of a California sex crime to register with the police of the city or county where they live. Failing to meet this requirement will lead to charges under California Penal Code 290(b). Convicted offenders are required to register for life and registration must be renewed every year, within five working days of the person's birthday, and every time that person moves to a new address.

SB 421 would massively rework PC 290. Under SB 421:

  • Registration would be changed to a tiered system based on offense type and offender history.
  • Offenders could be removed from Megan's Law website before completion of the minimum registration period.
  • Some offenders would be able to move from lifetime registration to 20-year registration.

Under the new proposal, offenders would register for a minimum term of 10 years, 20 years, or life, depending on the nature of the crime and the offender's background. OCDA is deeply concerned about the impact SB 421 will have on law enforcement's ability to protect our communities from the most dangerous offenders. While the current sex registration system can most certainly be improved, SB 421 will cause too many dangerous offenders to be monitored for too short a period, will be exceptionally burdensome on law enforcement and prosecutors, and will be too costly to effectively administer.

Tier 1: 10 Year Minimum Tier 2: 20 Year Minimum Tier 3: Lifetime Registration
  • Misdemeanor sex crimes
  • Non-serious/ non-violent felony sex crimes


  • Child Pornography
  • Child Annoyance (first time offense)
  • Sexual Battery on Institutionalized Victim
  • “Violent” sex offenses & “serious” sex offenses
  • Sexual Battery
  • Incest
  • Sodomy of unconscious, mentally or physically disabled, institutionalized, or intoxicated victim
  • Lewd act on a child
  • Sexual penetration of mentally disabled, unconscious, or intoxicated victim
  • Soliciting another to commit rape by force or violence
  • Human Trafficking
  • Prior 290 plus current 667.5(c) violent; or 290.006 allegation to 667.5(c) violent
  • Sexually Violent Predator commitment
  • Murder plus intent to commit specified sex crime
  • SARATSO per 290.04 “well above average risk”
  • Habitual offender per 667.71
  • Lewd acts on a child in two proceedings “brought and tried separately”
  • Mentally disordered sex offender per 290.004
  • 15 or 25 to Life per 667.61

If this measure passes, here are just some of the negative impacts that will occur:

  • An offender who commits a violent offense such as rape, child molestation, or assault with intent to commit a sex offense would be classified as a Tier 2 offender and will be eligible for removal from the registry after only 20 years following his/her release from custody.
  • Repeat misdemeanor and felony sexual offenders, such as recidivist offenders who commit multiple acts of Child Annoyance, or possess any amount of Child Pornography, will only be required to registers as Tier 1 offenders (10 year minimum).
  • The threshold allowing offenders to be removed from the sex registry is too low, while the burden on prosecutors to keep dangerous offenders on the registry is too high.
  • The People will not be given the benefit of their bargain in plea agreements. Many offenders who have pleaded guilty over the past 30 years have pled to offenses which under the SB 421 would not require lifetime registration. However, in many of these cases, the People considered the registration requirement as an important tool to enhance public safety. We used this tool to determine a just disposition, and to communicate the fact of lifetime registration to our victims. SB 421 would retroactively apply the new tier system to offenders whose offenses have already been adjudicated.
  • For example, in order to be removed from the Sex Offender Registry, offenders will merely need to show that they are currently registered, have no pending charges which may extend the minimum period of registration, and are not currently in custody or on probation, parole, or mandatory supervision. (Note that SB 421 does not require that offenders seeking removal to be crime free during the period of registration.) In contrast with this low standard, the prosecution would only be able to keep an offender on the registry by doing the following:
  • The prosecution must request a hearing and provide proof that “public safety would be significantly enhanced” by continued registration. This amorphous standard is not defined in the law. As we have seen in the years following Propositions 36 and 47, enacting retroactive legislation which provides offenders with a poorly defined avenue for relief will only lead to costly litigation which will be overly burdensome on our prosecutors and courts which are already stretched thin.
  • More troubling is the law's treatment of pre-1987 adjudications. In those instances, eligibility for removal from the registry is to be determined by the Department of Justice, with no opportunity for input or hearing at the request of the prosecution.

Orange County District Attorney / SB-10, SB-421, SB-620  / July 10, 2017

About the Author

Fay Arfa

Fay Arfa has the distinction of being Certified as a Specialist in two separate areas of law – Criminal Law as well as Appellate Law – by the California State Bar, Board of Specialization. The National Board of Trial Advocacy has also awarded her a board Certification in Criminal Trial Advocacy. ...


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