HomeMy WebLinkAboutMINUTES - 07132010 - C.57RECOMMENDATION(S):
SUPPORT AB 1844 (Fletcher), a bill that enacts "Chelsea's Law," which increases penalties
for forcible sex acts against minors, creates a penalty of life without the possibility of parole
for specified sex acts against minors, creates safe zones around parks, and mandates lifetime
parole for specified sex offenses, as recommended by Supervisor Gioia.
FISCAL IMPACT:
According to the Assembly Appropriations Committee, according to an analysis of this bill
by the Legislative Analyst's Office (LAO), requested by the Chair of the Assembly
Appropriations Committee, this bill will create annual General Funds costs in the tens of
millions of dollars within the decade, and hundreds of millions of dollars for longer prison
terms in the out-years, lifetime parole supervision and increased parole revocations.
These estimates may be conservative as the LAO analysis used the marginal overcrowding
figures for inmates and parolees ($23,000 and $2,500, respectively), rather than the
budgeted per capita cost ($45,000 and $6,000).
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 07/13/2010 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Gayle B. Uilkema, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Susan A. Bonilla, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Lara DeLaney,
925-335-1097
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board
of Supervisors on the date shown.
ATTESTED: July 13, 2010
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 57
To:Board of Supervisors
From:Supervisor John Gioia
Date:July 13, 2010
Contra
Costa
County
Subject:SUPPORT for AB 1844 (Fletcher): Sex Offenders: Punishment: Parole
FISCAL IMPACT: (CONT'D)
Also, the LAO estimates do not include:
1)How many offenders would receive life terms as a result of this bill? {The Department
of Corrections and Rehabilitation (CDCR) was unable to provide sufficient data to make
such as estimate.} LAO does state, however, "that the number of offenders affected by
the measure could be substantial." LAO specifically notes "the inclusion of a traumatic
condition on a victim under age 14 would appear to be broad enough to affect a
significant number of offenders."
2)The length-of-stay differential for offenders who would serve a 15- or 25-to-life
sentence under current law, but would serve LWOP under this bill. There is insufficient
data to determine the length-of-stay for lifers with the possibility of parole, though clearly
it will be shorter than LWOP, so out-year costs would be significant.
3)State trial court costs as a result of more trials. Offenders are not likely to plead to life.
These costs could range into the low tens of millions of dollars.
4)Potential for construction costs to house the increased population. These one-time
out-year costs could be in the low hundreds of millions.
BACKGROUND:
BILL ANALYSIS
ASSEMBLY THIRD READING
AB 1844 (Fletcher), As Amended June 2, 2010
AB 1844 provides for the following:
1)Provides for an increased penalty for assault of a person under the age of 18 years of
age with the intent to commit lewd or lascivious acts, mayhem, rape, sodomy, oral
copulation, rape with a foreign object, or forcible acts of sexual penetration from two,
four, or six years to five, seven or nine years in state prison.
2)Increases the punishment for rape by means of force, violence, duress, menace, or fear
of bodily injury of a child under the age of 14 from three, six or eight years to 6, 12, or 16
years in state prison.
3)Increases the punishment for rape by means of force, violence, duress, menace, or fear
of bodily injury of a minor between the ages of 14 and 17 from three, six or eight years to
6, 9, or 11 years in state prison.
4)Increases the punishment for an act of sodomy with another person who is under 14
years of age when the act is accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim
or another person from three, six, or eight years to 6, 12, or 16 years.
5)Increases the punishment for any person who commits an act of sodomy with another
person who is a minor between the ages of 14 to 17 when the act is accomplished against
the victim's will by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person from three, six or eight years to 6,
9, or 11 years in state prison.
6)Increases the penalty for any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other person, commits an act
of sodomy upon a victim who is under 14 years of age, when the act is accomplished
against the victim's will by means of force or fear of immediate and unlawful bodily
injury on the victim or another person from five, seven, or nine years to 7, 13, or 17 years
in state prison.
7)Increases the penalty for any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other person, commits an act
of sodomy upon a victim who is between the ages of 14 and 17, when the act is
accomplished against the victim's will by means of force or fear of immediate and
unlawful bodily injury on the victim or another person, from five, seven or nine years to
7, 10, or 12 years in state prison.
8)Increases the penalty for any person who willfully and lewdly commits any lewd or
lascivious act upon a child under the age of 14 by use of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or another person from
three, six or eight years to 6, 12 or 16 years in state prison.
9)Increases the penalty for any person who is a caretaker and willfully and lewdly
commits any lewd or lascivious act upon a child under the age of 14 who is a dependent
person by use of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person from three, six or eight years to 6, 9, or 11
years.
10)Increases the penalty for any person who commits an act of oral copulation upon a
person who is under 14 years of age, when the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person from three, six, or eight years to 6, 12, or 16
years in state prison.
11)Increases the penalty for any person who commits an act of oral copulation upon a
minor who is 14 years of age or older, when the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person from three, six, or eight years to 6, 9, or 11
years.
12)Increases the penalty of any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other person, commits an act
of oral copulation upon a victim who is under 14 years of age, when the act is
accomplished against the victim's will by means of force or fear of immediate and
unlawful bodily injury on the victim or another person from five, seven, or nine years to
7, 13, or 17 years in state prison.
13)Increases the penalty of any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other person, commits an act
of oral copulation upon a victim who is between the ages of 14 and 17, when the act is
accomplished against the victim's will by means of force or fear of immediate and
unlawful bodily injury on the victim or another person from five, seven, or nine years to
7, 10, or 12 years in state prison.
14)Increases the penalty of any person who commits an act of sexual penetration upon a
child who is under 14 years of age, when the act is accomplished against the victim's will
by means of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person from three, six, or eight years to 6, 12, or 16 years.
15)Increases the penalty of any person who commits an act of sexual penetration upon a
minor who is between the ages of 14 to 17, when the act is accomplished against the
victim's will by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person from three, six, or eight years to 6,
9, or 11 years in state prison.
16)States that any person who is required to register pursuant to the Sex Offender
Registration Act for a felony offense, who enters any park where children regularly
gather without written permission, is guilty of a misdemeanor:
a) If the person is on parole, written permission shall be obtained from the person's
parole officer;
b) If the person is not on parole, written permission shall be obtained from the chief
administrative official of the park; and,
c) Punishment for a violation of this section shall be as follows:
i) Upon a first conviction, by imprisonment in a county jail not exceeding six months, or
by a fine not exceeding $500, or by both imprisonment and a fine;
ii) Upon a second conviction pursuant to this section, by imprisonment in a county jail
for a period of not less than 10 days and not more than six months. In addition to
imprisonment, a violation of this section punishable pursuant to this paragraph may also
be punished by a fine not exceeding $500. A defendant sentenced pursuant to this
paragraph shall not be released on probation, parole, or any other basis, until he or she
has served at least 10 days imprisonment in a county jail;
iii) Upon a third or subsequent conviction pursuant to this section, by imprisonment in a
county jail for a period of not less than 90 days and not more than six months and a fine
not exceeding $500. A defendant sentenced pursuant to this paragraph shall not be
released on probation, parole, or any other basis, until he or she has served at least 90
days imprisonment in a county jail; and,
iv) This section does not preclude or prohibit prosecution under any other provision of
law.
17)States that any person who is convicted of rape, spousal rape, rape in concert, lewd or
lascivious acts, sexual penetration, sodomy, oral copulation, or continuous sexual abuse
of a child upon a victim who is a child under 14 years of age and who, in the commission
of the offense, inflicted bodily harm upon the victim shall be punished with imprisonment
in state prison for life without the possibility of parole (LWOP). Defines "bodily harm" as
any substantial physical injury resulting from the use of force that is more than the force
necessary to commit the underlying forcible sex act.
18)States that any person who is convicted of rape, spousal rape, rape in concert, lewd or
lascivious acts, sexual penetration, sodomy, oral copulation, or continuous sexual abuse
of a child, under one or more of the following circumstances upon a victim who is a
minor between the ages of 14 to 17 they shall be punished by imprisonment in state
prison for 25-years-to-life, if they commit the offense upon a child under 14 years of age
shall be punished by imprisonment in the state prison for LWOP, unless the defendant is
under the age of 18, they will be punished by a term of 25-years-to-life.
a) The defendant has been previously convicted of one of the same offenses, including an
offense committed in another jurisdiction that includes all of the same elements;
b) The defendant kidnapped the victim of the present offense and the movement of the
victim substantially increased the risk of harm to the victim over and above that level of
risk necessarily inherent in the commission of the offense;
c) The defendant inflicted aggravated mayhem or torture on the victim or another person
in the commission of the present offense;
d) The defendant committed the present offense during the commission of a burglary of
the first degree, with intent to commit one of the sexual offenses listed;
e) The defendant committed the present offense in violation of rape by a foreign object,
sodomy in concert, or oral copulation and, in the commission of that offense, any person
committed any act, as specified;
f) The defendant personally inflicted great bodily injury on the victim or another person
in the commission of the present offense in violation of specified firearm enhancements,
or specified felony attempt enhancements;
g) The defendant personally used a dangerous or deadly weapon or a firearm in the
commission of the present offense in violation of specified sections;
h) The defendant has been convicted in the present case or cases of committing the sexual
offenses against more than one victim;
i) The defendant engaged in the tying or binding of the victim or another person in the
commission of the present offense;
j) The defendant administered a controlled substance to the victim in the commission of
the present offense, as specified; and,
aa) The defendant committed rape by a foreign object, sodomy in concert as specified,
oral copulation in concert, as specified, and commit specified factors.
19)States that any person who is convicted of rape by force or fear, spousal rape, rape in
concert, sexual penetration, sodomy as specified, oral copulation as specified, under one
or more of the circumstances specified in the following "Group 1" or under two or more
of the circumstances specified in the following "Group 2" upon a victim who is a minor
14 years of age or older shall be punished by imprisonment in the state prison for LWOP,
unless the defendant is under the age of 18, the defendant shall be punished by a term of
25-years-to-life.
a) Group 1 Circumstances (requires one of these factors to receive LWOP):
i) The defendant has been previously convicted of one of the above specified sex
offenses, including an offense committed in another jurisdiction that includes all of the
elements;
ii) The defendant kidnapped the victim of the present offense and the movement of the
victim substantially increased the risk of harm to the victim over and above that level of
risk necessarily inherent in the commission of the offense;
iii) The defendant inflicted aggravated mayhem or torture on the victim or another person
in the commission of the present offense;
iv) The defendant committed the present offense during the commission of a burglary of
the first degree, with intent to commit one of the sexual offenses listed;
v) The defendant committed the present offense in violation of rape by a foreign object,
sodomy in concert, or oral copulation and, in the commission of that offense, any person
committed any act, as specified; and,
vi) The defendant personally inflicted great bodily injury on the victim or another person
in the commission of the present offense in violation of specified firearm enhancements,
or specified felony attempt enhancements.
b) Group 2 Circumstances (requiring two or more of these factors to receive LWOP):
i) The defendant kidnapped the victim of the present offense, as specified;
ii) The defendant committed the present offense during the commission of a burglary, as
specified;
iii) The defendant personally used a dangerous or deadly weapon or a firearm in the
commission of the present offense, as specified;
iv) The defendant has been convicted in the present case or cases of committing an
offense specified against more than one victim;
v) The defendant engaged in the tying or binding of the victim or another person in the
commission of the present offense;
vi) The defendant administered a controlled substance to the victim in the commission of
the present offense, as specified; and,
vii) The defendant committed rape by a foreign object, sodomy in concert as specified,
oral copulation in concert, as specified, and commit specified factors.
20)Any person who is convicted of rape by force or fear, spousal rape, rape in concert,
sexual penetration, sodomy, as specified, oral copulation as specified under one of the
following circumstances against a minor 14 years of age or older shall be punished by
imprisonment in the state prison for 25-years-to-life:
a) The defendant kidnapped the victim of the present offense, as specified;
b) The defendant committed the present offense during the commission of a burglary, as
specified;
c) The defendant personally used a dangerous or deadly weapon or a firearm in the
commission of the present offense, as specified;
d) The defendant has been convicted in the present case or cases of committing an
offense specified against more than one victim;
e) The defendant engaged in the tying or binding of the victim or another person in the
commission of the present offense;
f) The defendant administered a controlled substance to the victim in the commission of
the present offense, as specified; and,
g) The defendant committed rape by a foreign object, sodomy in concert as specified,
oral copulation in concert, as specified, and commit specified factors.
21)Increases the parole period for those convicted of rape, sodomy, oral copulation,
sexual penetration, rape in concert from five years to 10 years unless a longer period of
parole is specified.
22)Increases the parole period in the case of any offense for which an inmate has
received a life sentence due to a conviction of kidnapping (for rape, spousal rape, oral
copulation, sodomy, or other specified sexual offenses) from five years to 10 years.
23)Increases parole to lifetime parole for the following offenses:
a) Lewd and lascivious acts on a child under the age of 14 years;
b) Lewd and lascivious acts on a child under the age of 14 by means of force or fear;
c) Continuous sexual abuse of a child;
d) Sexual intercourse, oral copulation, or sodomy with a child 10 years of age or younger;
e) A conviction under the habitual sexual offenders section where the victim is under the
age of 14 years;
f) Aggravated sexual assault of a child;
g) Lewd and lascivious acts with a child under the age of 14 with two or more of a
specified prior;
h) Specified felony sex offense special circumstances;
i) Rape of a child under 14 years of age;
j) Spousal rape of a child under 14 years of age;
aa) Rape by a foreign object of a child under 14 years of age;
bb) Sodomy of a child under 14 years of age;
cc) Oral copulation on a child under 14 years of age; and,
dd) Forcible acts of sexual penetration of a child under 14 years of age.
EXISTING LAW:
1)Provides that persons who commit rape, spousal rape, rape in concert, lewd and
lascivious acts on a minor, sexual penetration, sodomy, oral copulation, continuous sexual
abuse of a child, shall be punished by 25-years-to-life if:
a) One or more of the following circumstances exist:
i) The defendant has been previously convicted of a specified sex offense;
ii) The defendant kidnapped the victim of the present offense and the movement of the
victim substantially increased the risk of harm to the victim;
iii) The defendant inflicted aggravated mayhem or torture on the victim or another person
in the commission of the present offense;
iv) The defendant committed the present offense during the commission of a burglary of
the first degree; or,
v) The defendant committed rape by a foreign object, sodomy in concert, as specified,
oral copulation in concert as specified, and commit specified factors.
b) Two or more of the following circumstances exist:
i) The defendant kidnapped the victim of the present offense, as specified;
ii) The defendant committed the present offense during the commission of a burglary, as
specified;
iii) The defendant personally used a dangerous or deadly weapon or a firearm in the
commission of the present offense, as specified;
iv) The defendant has been convicted in the present case or cases of committing an
offense specified against more than one victim;
v) The defendant engaged in the tying or binding of the victim or another person in the
commission of the present offense;
vi) The defendant administered a controlled substance to the victim in the commission of
the present offense, as specified; or,
vii) The defendant committed rape by a foreign object, sodomy in concert as specified,
oral copulation in concert as specified, and commit specified factors.
2)Provides that persons who commit rape, spousal rape, rape in concert, lewd and
lascivious acts on a minor, sexual penetration, sodomy, oral copulation, continuous sexual
abuse of a child, shall be punished with 15-years-to-life with one of the following
circumstances:
a) The defendant kidnapped the victim of the present offense, as specified;
b) The defendant committed the present offense during the commission of a burglary, as
specified;
c) The defendant personally used a dangerous or deadly weapon or a firearm in the
commission of the present offense, as specified;
d) The defendant has been convicted in the present case or cases of committing an
offense specified against more than one victim;
e) The defendant engaged in the tying or binding of the victim or another person in the
commission of the present offense;
f) The defendant administered a controlled substance to the victim in the commission of
the present offense, as specified; or,
g) The defendant committed rape by a foreign object, sodomy in concert as specified,
oral copulation in concert, as specified, and commit specified factors.
3)Provides that the punishment for rape is three, six, or eight years.
4)States that in any case in which the defendant, voluntarily acting in concert with
another person, by force or violence and against the will of the victim, committed a rape
or sexual penetration, either personally or by aiding and abetting the other person the
defendant shall suffer confinement in the state prison for five, seven, or nine years.
5)Provides that any person who commits any of the following acts upon a child who is
under 14 years of age and seven or more years younger than the person is guilty of
aggravated sexual assault of a child and shall be punished by imprisonment in the state
prison for 15-years-to-life:
a) Rape;
b) Rape or sexual penetration, in concert;
c) Sodomy;
d) Oral copulation;
e) Sexual penetration; and,
f) Any person who violates this section is guilty of a felony.
6)States that any person 18 years of age or older who engages in sexual intercourse or
sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be
punished by imprisonment in the state prison for a term of 25-years-to-life.
7)Any person 18 years of age or older who engages in oral copulation or sexual
penetration, with a child who is 10 years of age or younger is guilty of a felony and shall
be punished by imprisonment in the state prison for a term of 15-years-to-life.
8)Defines "sodomy" as sexual conduct consisting of contact between the penis of one
person and the anus of another person. Any sexual penetration, however slight, is
sufficient to complete the crime of sodomy.
9)Provides that any person who commits an act of sodomy when the act is accomplished
against the victim's will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person shall be punished
by imprisonment in the state prison for three, six, or eight years.
10)Provides that any person who commits an act of sodomy where the act is
accomplished against the victim's will by threatening to retaliate in the future against the
victim or any other person, and there is a reasonable possibility that the perpetrator will
execute the threat, shall be punished by imprisonment in the state prison for three, six, or
eight years.
11)Provides that any person who, while voluntarily acting in concert with another person,
either personally or aiding and abetting that other person, commits an act of sodomy
when the act is accomplished against the victim's will by means of force or fear of
immediate and unlawful bodily injury on the victim or another person or where the act is
accomplished against the victim's will by threatening to retaliate in the future against the
victim or any other person, and there is a reasonable possibility that the perpetrator will
execute the threat, shall be punished by imprisonment in the state prison for five, seven,
or nine years.
12)States that any person who commits an act of sodomy, and the victim is at the time
unconscious of the nature of the act and this is known to the person committing the act,
shall be punished by imprisonment in the state prison for three, six, or eight years. As
used in this subdivision, "unconscious of the nature of the act" means incapable of
resisting because the victim meets one of the following conditions:
a) Was unconscious or asleep;
b) Was not aware, knowing, perceiving, or cognizant that the act occurred;
c) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the
act due to the perpetrator's fraud in fact; and,
d) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the
act due to the perpetrator's fraudulent representation that the sexual penetration served a
professional purpose when it served no professional purpose.
13)States that any person who commits an act of sodomy, where the victim is prevented
from resisting by an intoxicating or anesthetic substance, or any controlled substance, and
this condition was known, or reasonably should have been known by the accused, shall
be punished by imprisonment in the state prison for three, six, or eight years.
14)States that any person who commits an act of sodomy, where the victim submits
under the belief that the person committing the act is the victim's spouse, and this belief
is induced by any artifice, pretense, or concealment practiced by the accused, with intent
to induce the belief, shall be punished by imprisonment in the state prison for three, six,
or eight years.
15)States that any person who commits an act of sodomy, where the act is accomplished
against the victim's will by threatening to use the authority of a public official to
incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief
that the perpetrator is a public official, shall be punished by imprisonment in the state
prison for three, six, or eight years. As used in this subdivision, "public official" means a
person employed by a governmental agency who has the authority, as part of that
position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to
be a public official.
16)States that any person who willfully and lewdly commits any lewd or lascivious act,
including any of the acts constituting other specified crimes, upon or with the body, or
any part or member thereof, of a child who is under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or
the child, is guilty of a felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.
17)Provides that any person who commits a lewd and lascivious act upon a minor under
the age of 14 by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of a felony and shall be
punished by imprisonment in the state prison for three, six, or eight years.
18)States that any person who is a caretaker and commits an act, as specified, upon a
dependent person by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, with a specified intent, is guilty of
a felony and shall be punished by imprisonment in the state prison for three, six, or eight
years.
19)Provides that any person who commits a lewd and lascivious act upon a minor with
the requisite intent, and the victim is a child of 14 or 15 years, and that person is at least
10 years older than the child, is guilty of a public offense and shall be punished by
imprisonment in the state prison for one, two, or three years, or by imprisonment in a
county jail for not more than one year. In determining whether the person is at least 10
years older than the child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
20)States that any person who is a caretaker and commits a lewd and lascivious act upon
a dependent person with the requisite intent is guilty of a public offense and shall be
punished by imprisonment in the state prison for one, two, or three years, or by
imprisonment in a county jail for not more than one year.
21)Defines "oral copulation" as the act of copulating the mouth of one person with the
sexual organ or anus of another person.
22)States that any person who participates in an act of oral copulation with another
person who is under 14 years of age and more than 10 years younger than he or she shall
be punished by imprisonment in the state prison for three, six, or eight years.
23)States that any person who commits an act of oral copulation when the act is
accomplished against the victim's will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or another person shall be
punished by imprisonment in the state prison for three, six, or eight years.
24)Any person who commits an act of oral copulation where the act is accomplished
against the victim's will by threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the perpetrator will execute the
threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
25)Any person who commits an act of oral copulation, and the victim is at the time
unconscious of the nature of the act and this is known to the person committing the act,
shall be punished by imprisonment in the state prison for a period of three, six, or eight
years. As used in this subdivision, "unconscious of the nature of the act" means incapable
of resisting because the victim meets one of the following conditions:
a) Was unconscious or asleep;
b) Was not aware, knowing, perceiving, or cognizant that the act occurred;
c) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the
act due to the perpetrator's fraud in fact; or,
d) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the
act due to the perpetrator's fraudulent representation that the oral copulation served a
professional purpose when it served no professional purpose.
26)Any person who commits an act of sexual penetration when the act is accomplished
against the victim's will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person shall be punished
by imprisonment in the state prison for three, six, or eight years.
27)Defines "sexual penetration" as the act of causing the penetration, however slight, of
the genital or anal opening of any person or causing another person to so penetrate the
defendant's or another person's genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument, or device, or by any
unknown object.
28)Defines "foreign object, substance, instrument, or device" as any part of the body,
except a sexual organ.
29)Specifies that "unknown object" shall include any foreign object, substance,
instrument, or device, or any part of the body, including a penis, when it is not known
whether penetration was by a penis or by a foreign object, substance, instrument, or
device, or by any other part of the body.
30)Any person who commits an act of sexual penetration when the act is accomplished
against the victim's will by threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the perpetrator will execute the
threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
31)States that any person who commits an act of sexual penetration, and the victim is at
the time incapable, because of a mental disorder or developmental or physical disability,
of giving legal consent, and this is known or reasonably should be known to the person
committing the act or causing the act to be committed, shall be punished by
imprisonment in the state prison for three, six, or eight years.
32)Provides that any person who commits an act of sexual penetration, and the victim is
at the time incapable, because of a mental disorder or developmental or physical
disability, of giving legal consent, and this is known or reasonably should be known to
the person committing the act or causing the act to be committed and both the defendant
and the victim are at the time confined in a state hospital for the care and treatment of the
mentally disordered or in any other public or private facility for the care and treatment of
the mentally disordered approved by a county mental health director, shall be punished
by imprisonment in the state prison, or in a county jail for a period of not more than one
year.
33)States that any person who commits an act of sexual penetration, and the victim is at
the time unconscious of the nature of the act and this is known to the person committing
the act or causing the act to be committed, shall be punished by imprisonment in the state
prison for three, six, or eight years. As used in this subdivision, "unconscious of the
nature of the act" means incapable of resisting because the victim meets one of the
following conditions:
a) Was unconscious or asleep;
b) Was not aware, knowing, perceiving, or cognizant that the act occurred;
c) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the
act due to the perpetrator's fraud in fact; or,
d) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the
act due to the perpetrator's fraudulent representation that the sexual penetration served a
professional purpose when it served no professional purpose.
34)States that any person who commits an act of sexual penetration when the victim is
prevented from resisting by any intoxicating or anesthetic substance, or any controlled
substance, and this condition was known, or reasonably should have been known by the
accused, shall be punished by imprisonment in the state prison for a period of three, six,
or eight years.
COMMENTS: According to the author, "while there are seemingly tough laws on the
books for sex offenders, current California law does not acknowledge or adjust for the
true nature of the sexual violent predator that attacks children. Chelsea's law isolates this
uniquely dangerous predator and takes disciplined steps to keep them away from our
communities in a variety of ways.
"Beginning with sentencing, our office believes that those have committed the most
serious and heinous sex crimes against children are not able to be rehabilitated. Which is
why under our proposal, those who commit these crimes against children will be locked
up for LWOP.
"This will ensure that victims do not have to live in terror that their attacker will be freed
one day, and potential victims will not be needlessly harmed by those who we know to be
extremely dangerous.
"Also under our proposal, those offenders who have committed a forcible sex crime
against a child, signaling an appetite to prey on children, will be locked up for much
longer than in current law. In most cases, twice as long.
longer than in current law. In most cases, twice as long.
"We believe this is an important change because there currently is no distinction between
forcible and non-forcible sex crimes on a child. A forcible sex crime, such as forcible
child molestation, involves 'violence, duress, menace, or fear of immediate and unlawful
bodily injury.' And while all sex crimes are awful, these crimes are a red flag that the
perpetrator is capable of much, much worse. And we should acknowledge that.
"This is why, under Chelsea's Law, these offenders will serve a lifetime on parole if
released, including effective global positioning system (GPS) monitoring of their
whereabouts.
"Also, Chelsea's Law will create 'safe zones.' Specifically, it will now be a misdemeanor
for a felony sex offender to loiter in parks where children congregate - where they could
otherwise wait and target new victims.
"Testimony from corrections officials has stated that the combination of these safe zones
with GPS monitoring will allow law enforcement officials to be immediately notified if
the most dangerous sex offenders have entered a park covered under our law. And steps
can be taken to remove them.
"We believe this combination of increased sentencing, enhanced oversight, and the
creation of safe zones will provide safety for children and comfort for parents.
"The violent sexual predator that attacks children is a particular type of evil and should be
treated as such. AB 1844 ensures that those who commit a crime of this nature are
effectively kept from engaging in even more atrocious crimes upon release, and that
those who commit the worst violent sex crimes against children are put away for life."
ATTACHMENTS
AB 1844 Bill Text
AMENDED IN ASSEMBLY JUNE 2, 2010
AMENDED IN ASSEMBLY APRIL 28, 2010
AMENDED IN ASSEMBLY APRIL 13, 2010
california legislature—2009–10 regular session
ASSEMBLY BILL No. 1844
Introduced by Assembly Member Fletcher
(Principal coauthors: Assembly Members Anderson, Block, Garrick,
Gilmore, Nielsen, and Salas)
(Principal coauthors: Senators Hollingsworth and Wyland)
(Coauthors: Assembly Members Adams,Arambula, Bill Berryhill,
Tom Berryhill, Blakeslee, Bradford, Caballero, Charles Calderon,
Chesbro, Conway, Cook, Coto, Davis, De Leon, DeVore,
Emmerson, Fong, Fuller, Gaines, Galgiani, Hagman, Hall, Harkey,
Hill, Huber, Huffman, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Norby, Portantino, Silva, Smyth, Solorio, Audra Strickland,
Swanson, Torlakson,Torres, Torrico, and Tran, and Villines)
(Coauthors: Senators Cogdill, Correa, Cox, Denham, Dutton, Harman,
Maldonado, and Runner)
February 12, 2010
An act to amend Sections 220, 264, 264.1, 286, 288, 288a, 289,
667.61, 3000, and 3000.1 of, and to add Section 647.9 to, the Penal
Code, relating to sex crimes.
legislative counsel’s digest
AB 1844, as amended, Fletcher.Sex offenders: punishment: parole.
Under existing law, an assault with the intent to commit mayhem,
rape, sodomy, oral copulation, or with the intent to commit, by force,
rape, spousal rape, or sexual penetration in concert with another, is
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punishable by imprisonment in the state prison for 2, 4, or 6 years,
except as specified.
This bill would provide that an assault of a person under 18 years of
age with the intent to commit rape, sodomy, oral copulation, or with
the intent to commit, by force, rape, spousal rape, or sexual penetration
in concert with another, would be punishable by imprisonment in state
prison for 5, 7, or 9 years.
Under existing law, rape, sodomy accomplished against the victim’s
will, oral copulation accomplished against the victim’s will, and sexual
penetration accomplished against the victim’s will is punishable by
imprisonment in state prison for 3, 6, or 8 years. Rape, sodomy, and
oral copulation committed in concert with another is punishable by
imprisonment in the state prison for 5, 7, or 9 years.
This bill would provide that the punishment for these specified crimes
upon a child who is under 14 years of age is punishable by imprisonment
in state prison for 6, 12, or 16 years, and if committed upon a minor
who is 14 years of age or older is punishable by imprisonment in state
prison for 6, 9, or 11 years. This bill would provide that if these crimes
are committed in concert with another person upon a child who is under
14 years of age they are punishable in state prison for 7, 13, or 17 years
and if committed in concert upon a minor who is 14 years of age or
older by imprisonment for 7, 10, or 12 years. By increasing the
punishment for crimes, this bill would impose a state-mandated local
program.
Under existing law, a person who commits an act of rape, rape or
sexual penetration in concert, sodomy, oral copulation, or sexual
penetration, when the act is committed upon a child who is under 14
years of age and 7 or more years younger than the person, is guilty of
aggravated sexual assault of a child. Aggravated sexual assault of a
child under these circumstances is punishable by imprisonment in state
prison for 15 years to life.
This bill would provide that it does not preclude prosecution under
this existing law.
Under existing law, a person who commits any lewd or lascivious
act upon a child who is under 14 years of age by use of force or fear is
guilty of a felony punishable by imprisonment in state prison for 3, 6,
or 8 years.
This bill would increase the punishment for this crime to imprisonment
in the state prison for 6, 12, or 16 years. By increasing the punishment
for a crime, this bill would impose a state-mandated local program.
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Under existing law, a person who commits any lewd or lascivious
act upon a dependent person, as defined, by use of force or fear is guilty
of a felony punishable by imprisonment in state prison for 3, 6, or 8
years.
This bill would increase the punishment for this crime to imprisonment
in the state prison for 6, 9, or 11 years. By increasing the punishment
for a crime, this bill would impose a state-mandated local program.
Existing law, as amended by Proposition 83 of the November 7, 2006,
statewide general election, requires a person convicted of certain felonies
under specified circumstances to be committed to prison for a term of
years to life.
This bill would provide that these felonies committed under the
above-specified circumstances upon a victim who is a child under 14
years of age shall be punished by imprisonment in state prison for life
without the possibility of parole if the offender is 18 years of age or
older or 25 years to life if the offender is under 18 years of age. This
bill would add as a circumstance the infliction of physical injury
resulting in a traumatic condition bodily harm, as defined, on a victim
who is a child under 14 years of age to the list of specified circumstances
that would result in this imprisonment for life without parole.
This bill would provide that when rape, spousal rape, rape in concert,
or sexual penetration, sodomy, or oral copulation committed against
the victim’s will are committed under specified circumstances, the
punishment shall be imprisonment in state prison for 25 years to life,
or if committed upon a person who is a child 14 years of age or older,
for 25 years to life if committed under one of the specified
circumstances, or for life without possibility of parole if committed
under 2 or more of the specified circumstances.
Under existing law, a person convicted of certain felony sex offenses
shall be committed to prison for a term of 15 years to life if during the
commission of the felony the defendant inflicted great bodily injury on
the victim.
This bill would change the required sentence to 25 years to life for
this type of offense.
Existing law makes it unlawful for a person who is required to register
as a sex offender to reside within 2,000 feet of a public or private school,
or park where children regularly gather. Existing law also provides that
any person required to register as a sex offender who comes into any
school building or upon any school ground without lawful business and
written permission is guilty of a misdemeanor.
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This bill would make it a misdemeanor for a person who is required
to register as a sex offender to enter any park where children regularly
gather without written permission from either the person’s parole agent,
if the person is on parole, or the chief administrative officer of the park,
if the person is not on parole.
Under existing law a prisoner is generally released on parole for a
period not exceeding 3 years, except that inmates sentenced for certain
enumerated violent felonies are released on parole for a period not
exceeding 5 years.
This bill would change this period of parole for certain of these violent
felons from a maximum of 5 years to a maximum of 10 years or for the
felon’s life in specified circumstances. This bill would impose lifetime
parole on habitual sex offenders whose victims were under 14 years of
age and on inmates sentenced for lewd or lascivious acts committed
upon the body of a minor, continuous sexual abuse of a child, specified
sexual conduct with a child 10 years of age or younger, other specified
sexual offenses against a victim under 14 years of age, and aggravated
sexual assault of a child.
Under existing law, the period of parole for an inmate who has
received a life sentence for certain specified sex offenses is for a period
not exceeding 10 years.
This bill would include in this category of parolees, inmates who have
received a life sentence for kidnaping with intent to commit certain
specified crimes.
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 no reimbursement is required by this act
for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
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SECTION 1.This act shall be known as the Chelsea King
Child Predator Prevention Act of 2010.
SEC. 2.Section 220 of the Penal Code is amended to read:
220.(a) (1) Except as provided in subdivision (b), any person
who assaults another with intent to commit mayhem, rape, sodomy,
oral copulation, or any violation of Section 264.1, 288, or 289 shall
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be punished by imprisonment in the state prison for two, four, or
six years.
(2) Except as provided in subdivision (b), any person who
assaults another person under 18 years of age with the intent to
commit rape, sodomy, oral copulation, or any violation of Section
264.1, 288, or 289 shall be punished by imprisonment in the state
prison for five, seven, or nine years.
(b) Any person who, in the commission of a burglary of the first
degree, as defined in subdivision (a) of Section 460, assaults
another with intent to commit rape, sodomy, oral copulation, or
any violation of Section 264.1, 288, or 289 shall be punished by
imprisonment in the state prison for life with the possibility of
parole.
SEC. 3.Section 264 of the Penal Code is amended to read:
264.(a) Except as provided in subdivision (c), rape, as defined
in Section 261 or 262, is punishable by imprisonment in the state
prison for three, six, or eight years.
(b) In addition to any punishment imposed under this section
the judge may assess a fine not to exceed seventy dollars ($70)
against any person who violates Section 261 or 262 with the
proceeds of this fine to be used in accordance with Section 1463.23.
The court shall, however, take into consideration the defendant’s
ability to pay, and no defendant shall be denied probation because
of his or her inability to pay the fine permitted under this
subdivision.
(c) (1) Any person who commits rape in violation of paragraph
(2) of subdivision (a) of Section 261 upon a child who is under 14
years of age shall be punished by imprisonment in the state prison
for 6, 12, or 16 years.
(2) Any person who commits rape in violation of paragraph (2)
of subdivision (a) of Section 261 upon a minor who is 14 years of
age or older shall be punished by imprisonment in the state prison
for 6, 9, or 11 years.
(3) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
SEC. 4.Section 264.1 of the Penal Code is amended to read:
264.1.(a) The provisions of Section 264 notwithstanding, in
any case in which the defendant, voluntarily acting in concert with
another person, by force or violence and against the will of the
victim, committed an act described in Section 261, 262, or 289,
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either personally or by aiding and abetting the other person, that
fact shall be charged in the indictment or information and if found
to be true by the jury, upon a jury trial, or if found to be true by
the court, upon a court trial, or if admitted by the defendant, the
defendant shall suffer confinement in the state prison for five,
seven, or nine years.
(b) (1) If the victim of an offense described in subdivision (a)
is a child who is under 14 years of age, the defendant shall be
punished by imprisonment in the state prison for 7, 13, or 17 years.
(2) If the victim of an offense described in subdivision (a) is a
minor who is 14 years of age or older, the defendant shall be
punished by imprisonment in the state prison for 7, 10, or 12 years.
(3) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
SEC. 5.Section 286 of the Penal Code is amended to read:
286.(a) Sodomy is sexual conduct consisting of contact
between the penis of one person and the anus of another person.
Any sexual penetration, however slight, is sufficient to complete
the crime of sodomy.
(b) (1) Except as provided in Section 288, any person who
participates in an act of sodomy with another person who is under
18 years of age shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.
(2) Except as provided in Section 288, any person over the age
of 21 years who participates in an act of sodomy with another
person who is under 16 years of age shall be guilty of a felony.
(c) (1) Any person who participates in an act of sodomy with
another person who is under 14 years of age and more than 10
years younger than he or she shall be punished by imprisonment
in the state prison for three, six, or eight years.
(2) (A) Any person who commits an act of sodomy when the
act is accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by
imprisonment in the state prison for three, six, or eight years.
(B) Any person who commits an act of sodomy with another
person who is under 14 years of age when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
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victim or another person shall be punished by imprisonment in the
state prison for 6, 12, or 16 years.
(C) Any person who commits an act of sodomy with another
person who is a minor 14 years of age or older when the act is
accomplished against the victim’s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury
on the victim or another person shall be punished by imprisonment
in the state prison for 6, 9, or 11 years.
(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(3) Any person who commits an act of sodomy where the act
is accomplished against the victim’s will by threatening to retaliate
in the future against the victim or any other person, and there is a
reasonable possibility that the perpetrator will execute the threat,
shall be punished by imprisonment in the state prison for three,
six, or eight years.
(d) (1) Any person who, while voluntarily acting in concert
with another person, either personally or aiding and abetting that
other person, commits an act of sodomy when the act is
accomplished against the victim’s will by means of force or fear
of immediate and unlawful bodily injury on the victim or another
person or where the act is accomplished against the victim’s will
by threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the
perpetrator will execute the threat, shall be punished by
imprisonment in the state prison for five, seven, or nine years.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is under 14
years of age, when the act is accomplished against the victim’s
will by means of force or fear of immediate and unlawful bodily
injury on the victim or another person, shall be punished by
imprisonment in the state prison for 7, 13, or 17 years.
(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is a minor
14 years of age or older, when the act is accomplished against the
victim’s will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished
by imprisonment in the state prison for 7, 10, or 12 years.
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(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(e) Any person who participates in an act of sodomy with any
person of any age while confined in any state prison, as defined
in Section 4504, or in any local detention facility, as defined in
Section 6031.4, shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.
(f) Any person who commits an act of sodomy, and the victim
is at the time unconscious of the nature of the act and this is known
to the person committing the act, shall be punished by
imprisonment in the state prison for three, six, or eight years. As
used in this subdivision, “unconscious of the nature of the act”
means incapable of resisting because the victim meets one of the
following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the
act occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.
(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.
(g) Except as provided in subdivision (h), a person who commits
an act of sodomy, and the victim is at the time incapable, because
of a mental disorder or developmental or physical disability, of
giving legal consent, and this is known or reasonably should be
known to the person committing the act, shall be punished by
imprisonment in the state prison for three, six, or eight years.
Notwithstanding the existence of a conservatorship pursuant to
the Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving consent.
(h) Any person who commits an act of sodomy, and the victim
is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person
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committing the act, and both the defendant and the victim are at
the time confined in a state hospital for the care and treatment of
the mentally disordered or in any other public or private facility
for the care and treatment of the mentally disordered approved by
a county mental health director, shall be punished by imprisonment
in the state prison, or in a county jail for not more than one year.
Notwithstanding the existence of a conservatorship pursuant to
the Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving legal consent.
(i) Any person who commits an act of sodomy, where the victim
is prevented from resisting by an intoxicating or anesthetic
substance, or any controlled substance, and this condition was
known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for three,
six, or eight years.
(j) Any person who commits an act of sodomy, where the victim
submits under the belief that the person committing the act is the
victim’s spouse, and this belief is induced by any artifice, pretense,
or concealment practiced by the accused, with intent to induce the
belief, shall be punished by imprisonment in the state prison for
three, six, or eight years.
(k) Any person who commits an act of sodomy, where the act
is accomplished against the victim’s will by threatening to use the
authority of a public official to incarcerate, arrest, or deport the
victim or another, and the victim has a reasonable belief that the
perpetrator is a public official, shall be punished by imprisonment
in the state prison for three, six, or eight years.
As used in this subdivision, “public official” means a person
employed by a governmental agency who has the authority, as part
of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.
(l) As used in subdivisions (c) and (d), “threatening to retaliate”
means a threat to kidnap or falsely imprison, or inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section,
the judge may assess a fine not to exceed seventy dollars ($70)
against any person who violates this section, with the proceeds of
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this fine to be used in accordance with Section 1463.23. The court,
however, shall take into consideration the defendant’s ability to
pay, and no defendant shall be denied probation because of his or
her inability to pay the fine permitted under this subdivision.
SEC. 6.Section 288 of the Penal Code is amended to read:
288.(a) Any person who willfully and lewdly commits any
lewd or lascivious act, including any of the acts constituting other
crimes provided for in Part 1, upon or with the body, or any part
or member thereof, of a child who is under the age of 14 years,
with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child, is guilty of
a felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.
(b) (1) Any person who commits an act described in subdivision
(a) by use of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person, is
guilty of a felony and shall be punished by imprisonment in the
state prison for 6, 12, or 16 years.
(2) Any person who is a caretaker and commits an act described
in subdivision (a) upon a dependent person by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person, with the intent described
in subdivision (a), is guilty of a felony and shall be punished by
imprisonment in the state prison for 6, 9, or 11 years.
(c) (1) Any person who commits an act described in subdivision
(a) with the intent described in that subdivision, and the victim is
a child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years,
or by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date
of the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described
in subdivision (a) upon a dependent person, with the intent
described in subdivision (a), is guilty of a public offense and shall
be punished by imprisonment in the state prison for one, two, or
three years, or by imprisonment in a county jail for not more than
one year.
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(d) In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim or dependent person and
shall do whatever is necessary, within existing budgetary resources,
and constitutionally permissible to prevent psychological harm to
the child victim or to prevent psychological harm to the dependent
person victim resulting from participation in the court process.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the
defendant derived any economic gain as a result of the crime, and
the extent to which the victim suffered economic losses as a result
of the crime. Every fine imposed and collected under this section
shall be deposited in the Victim-Witness Assistance Fund to be
available for appropriation to fund child sexual exploitation and
child sexual abuse victim counseling centers and prevention
programs pursuant to Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and
paragraph (2) of subdivision (c), the following definitions apply:
(1) “Caretaker” means an owner, operator, administrator,
employee, independent contractor, agent, or volunteer of any of
the following public or private facilities when the facilities provide
care for elder or dependent persons:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent persons and
postsecondary educational institutions that serve dependent persons
or elders.
(F) Sheltered workshops.
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(G) Camps.
(H) Community care facilities, as defined by Section 1402 of
the Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety
Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter
8 (commencing with Section 1725) of Division 2 of the Health
and Safety Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that
provides health services or social services to elder or dependent
persons, including, but not limited to, in-home supportive services,
as defined in Section 14005.14 of the Welfare and Institutions
Code.
(P) Private residences.
(2) “Board and care facilities” means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) “Dependent person” means any person who has a physical
or mental impairment that substantially restricts his or her ability
to carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities
have significantly diminished because of age. “Dependent person”
includes any person who is admitted as an inpatient to a 24-hour
health facility, as defined in Sections 1250, 1250.2, and 1250.3 of
the Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working
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at these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
person under care.
SEC. 7.Section 288a of the Penal Code is amended to read:
288a.(a) Oral copulation is the act of copulating the mouth
of one person with the sexual organ or anus of another person.
(b) (1) Except as provided in Section 288, any person who
participates in an act of oral copulation with another person who
is under 18 years of age shall be punished by imprisonment in the
state prison, or in a county jail for a period of not more than one
year.
(2) Except as provided in Section 288, any person over the age
of 21 years who participates in an act of oral copulation with
another person who is under 16 years of age is guilty of a felony.
(c) (1) Any person who participates in an act of oral copulation
with another person who is under 14 years of age and more than
10 years younger than he or she shall be punished by imprisonment
in the state prison for three, six, or eight years.
(2) (A) Any person who commits an act of oral copulation when
the act is accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by
imprisonment in the state prison for three, six, or eight years.
(B) Any person who commits an act of oral copulation upon a
person who is under 14 years of age, when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in
the state prison for 6, 12, or 16 years.
(C) Any person who commits an act of oral copulation upon a
minor who is 14 years of age or older, when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in
the state prison for 6, 9, or 11 years.
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(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(3) Any person who commits an act of oral copulation where
the act is accomplished against the victim’s will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison
for three, six, or eight years.
(d) (1) Any person who, while voluntarily acting in concert
with another person, either personally or by aiding and abetting
that other person, commits an act of oral copulation (1) when the
act is accomplished against the victim’s will by means of force or
fear of immediate and unlawful bodily injury on the victim or
another person, or (2) where the act is accomplished against the
victim’s will by threatening to retaliate in the future against the
victim or any other person, and there is a reasonable possibility
that the perpetrator will execute the threat, or (3) where the victim
is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person
committing the act, shall be punished by imprisonment in the state
prison for five, seven, or nine years. Notwithstanding the
appointment of a conservator with respect to the victim pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime described under paragraph (3), that a mental
disorder or developmental or physical disability rendered the
alleged victim incapable of giving legal consent.
(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is
under 14 years of age, when the act is accomplished against the
victim’s will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished
by imprisonment in the state prison for 7, 13, or 17 years.
(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is a
minor 14 years of age or older, when the act is accomplished
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against the victim’s will by means of force or fear of immediate
and unlawful bodily injury on the victim or another person, shall
be punished by imprisonment in the state prison for 7, 10, or 12
years.
(4) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(e) Any person who participates in an act of oral copulation
while confined in any state prison, as defined in Section 4504 or
in any local detention facility as defined in Section 6031.4, shall
be punished by imprisonment in the state prison, or in a county
jail for a period of not more than one year.
(f) Any person who commits an act of oral copulation, and the
victim is at the time unconscious of the nature of the act and this
is known to the person committing the act, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years. As used in this subdivision, “unconscious of the nature of
the act” means incapable of resisting because the victim meets one
of the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the
act occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.
(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the oral copulation served a professional purpose
when it served no professional purpose.
(g) Except as provided in subdivision (h), any person who
commits an act of oral copulation, and the victim is at the time
incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act,
shall be punished by imprisonment in the state prison, for three,
six, or eight years. Notwithstanding the existence of a
conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
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a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving consent.
(h) Any person who commits an act of oral copulation, and the
victim is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person
committing the act, and both the defendant and the victim are at
the time confined in a state hospital for the care and treatment of
the mentally disordered or in any other public or private facility
for the care and treatment of the mentally disordered approved by
a county mental health director, shall be punished by imprisonment
in the state prison, or in a county jail for a period of not more than
one year. Notwithstanding the existence of a conservatorship
pursuant to the provisions of the Lanterman-Petris-Short Act (Part
1 (commencing with Section 5000) of Division 5 of the Welfare
and Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.
(i) Any person who commits an act of oral copulation, where
the victim is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this condition
was known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for a period
of three, six, or eight years.
(j) Any person who commits an act of oral copulation, where
the victim submits under the belief that the person committing the
act is the victim’s spouse, and this belief is induced by any artifice,
pretense, or concealment practiced by the accused, with intent to
induce the belief, shall be punished by imprisonment in the state
prison for a period of three, six, or eight years.
(k) Any person who commits an act of oral copulation, where
the act is accomplished against the victim’s will by threatening to
use the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years.
As used in this subdivision, “public official” means a person
employed by a governmental agency who has the authority, as part
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of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.
(l) As used in subdivisions (c) and (d), “threatening to retaliate”
means a threat to kidnap or falsely imprison, or to inflict extreme
pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section,
the judge may assess a fine not to exceed seventy dollars ($70)
against any person who violates this section, with the proceeds of
this fine to be used in accordance with Section 1463.23. The court
shall, however, take into consideration the defendant’s ability to
pay, and no defendant shall be denied probation because of his or
her inability to pay the fine permitted under this subdivision.
SEC. 8.Section 289 of the Penal Code is amended to read:
289.(a) (1) (A) Any person who commits an act of sexual
penetration when the act is accomplished against the victim’s will
by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person shall
be punished by imprisonment in the state prison for three, six, or
eight years.
(B) Any person who commits an act of sexual penetration upon
a child who is under 14 years of age, when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in
the state prison for 6, 12, or 16 years.
(C) Any person who commits an act of sexual penetration upon
a minor who is 14 years of age or older, when the act is
accomplished against the victim’s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury
on the victim or another person, shall be punished by imprisonment
in the state prison for 6, 9, or 11 years.
(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.
(2) Any person who commits an act of sexual penetration when
the act is accomplished against the victim’s will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison
for three, six, or eight years.
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(b) Except as provided in subdivision (c), any person who
commits an act of sexual penetration, and the victim is at the time
incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act or
causing the act to be committed, shall be punished by imprisonment
in the state prison for three, six, or eight years. Notwithstanding
the appointment of a conservator with respect to the victim pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.
(c) Any person who commits an act of sexual penetration, and
the victim is at the time incapable, because of a mental disorder
or developmental or physical disability, of giving legal consent,
and this is known or reasonably should be known to the person
committing the act or causing the act to be committed and both
the defendant and the victim are at the time confined in a state
hospital for the care and treatment of the mentally disordered or
in any other public or private facility for the care and treatment of
the mentally disordered approved by a county mental health
director, shall be punished by imprisonment in the state prison, or
in a county jail for a period of not more than one year.
Notwithstanding the existence of a conservatorship pursuant to
the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.
(d) Any person who commits an act of sexual penetration, and
the victim is at the time unconscious of the nature of the act and
this is known to the person committing the act or causing the act
to be committed, shall be punished by imprisonment in the state
prison for three, six, or eight years. As used in this subdivision,
“unconscious of the nature of the act” means incapable of resisting
because the victim meets one of the following conditions:
(1) Was unconscious or asleep.
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(2) Was not aware, knowing, perceiving, or cognizant that the
act occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.
(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.
(e) Any person who commits an act of sexual penetration when
the victim is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this condition
was known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for a period
of three, six, or eight years.
(f) Any person who commits an act of sexual penetration when
the victim submits under the belief that the person committing the
act or causing the act to be committed is the victim’s spouse, and
this belief is induced by any artifice, pretense, or concealment
practiced by the accused, with intent to induce the belief, shall be
punished by imprisonment in the state prison for a period of three,
six, or eight years.
(g) Any person who commits an act of sexual penetration when
the act is accomplished against the victim’s will by threatening to
use the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years.
As used in this subdivision, “public official” means a person
employed by a governmental agency who has the authority, as part
of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.
(h) Except as provided in Section 288, any person who
participates in an act of sexual penetration with another person
who is under 18 years of age shall be punished by imprisonment
in the state prison or in the county jail for a period of not more
than one year.
(i) Except as provided in Section 288, any person over the age
of 21 years who participates in an act of sexual penetration with
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another person who is under 16 years of age shall be guilty of a
felony.
(j) Any person who participates in an act of sexual penetration
with another person who is under 14 years of age and who is more
than 10 years younger than he or she shall be punished by
imprisonment in the state prison for three, six, or eight years.
(k) As used in this section:
(1) “Sexual penetration” is the act of causing the penetration,
however slight, of the genital or anal opening of any person or
causing another person to so penetrate the defendant’s or another
person’s genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument,
or device, or by any unknown object.
(2) “Foreign object, substance, instrument, or device” shall
include any part of the body, except a sexual organ.
(3) “Unknown object” shall include any foreign object,
substance, instrument, or device, or any part of the body, including
a penis, when it is not known whether penetration was by a penis
or by a foreign object, substance, instrument, or device, or by any
other part of the body.
(l) As used in subdivision (a), “threatening to retaliate” means
a threat to kidnap or falsely imprison, or inflict extreme pain,
serious bodily injury or death.
(m) As used in this section, “victim” includes any person who
the defendant causes to penetrate the genital or anal opening of
the defendant or another person or whose genital or anal opening
is caused to be penetrated by the defendant or another person and
who otherwise qualifies as a victim under the requirements of this
section.
SEC. 9.Section 647.9 is added to the Penal Code, to read:
647.9.(a) Any person who is required to register pursuant to
the Sex Offender Registration Act for a felony offense, who enters
any park where children regularly gather without written
permission, is guilty of a misdemeanor.
(1) If the person is on parole, written permission shall be
obtained from the person’s parole officer.
(2) If the person is not on parole, written permission shall be
obtained from the chief administrative official of the park.
(b) Punishment for a violation of this section shall be as follows:
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(1) Upon a first conviction, by imprisonment in a county jail
not exceeding six months, or by a fine not exceeding five hundred
dollars ($500), or by both imprisonment and a fine.
(2) Upon a second conviction pursuant to this section, by
imprisonment in a county jail for a period of not less than 10 days
and not more than 6 months. In addition to imprisonment, a
violation of this section punishable pursuant to this paragraph may
also be punished by a fine not exceeding five hundred dollars
($500). A defendant sentenced pursuant to this paragraph shall not
be released on probation, parole, or any other basis, until he or she
has served at least 10 days imprisonment in a county jail.
(3) Upon a third or subsequent conviction pursuant to this
section, by imprisonment in a county jail for a period of not less
than 90 days and not more than 6 months and a fine not exceeding
five hundred dollars ($500). A defendant sentenced pursuant to
this paragraph shall not be released on probation, parole, or any
other basis, until he or she has served at least 90 days imprisonment
in a county jail.
(c) This section does not preclude or prohibit prosecution under
any other provision of law.
SEC. 10.Section 667.61 of the Penal Code is amended to read:
667.61.(a) Except as provided in subdivision (j), (l), or (m),
any person who is convicted of an offense specified in subdivision
(c) under one or more of the circumstances specified in subdivision
(d) or under two or more of the circumstances specified in
subdivision (e) shall be punished by imprisonment in the state
prison for 25 years to life.
(b) Except as provided in subdivision (a), (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one of the circumstances specified in subdivision (e) shall
be punished by imprisonment in the state prison for 15 years to
life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
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(4) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(8) Lewd or lascivious act, in violation of subdivision (a) of
Section 288.
(9) Continuous sexual abuse of a child, in violation of Section
288.5.
(d) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c).
(2) The defendant kidnapped the victim of the present offense
and the movement of the victim substantially increased the risk of
harm to the victim over and above that level of risk necessarily
inherent in the underlying offense in subdivision (c).
(3) The defendant inflicted aggravated mayhem or torture on
the victim or another person in the commission of the present
offense in violation of Section 205 or 206.
(4) The defendant committed the present offense during the
commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460, with intent to commit an offense
specified in subdivision (c).
(5) The defendant committed the present offense in violation
of Section 264.1, subdivision (d) of Section 286, or subdivision
(d) of Section 288a, and, in the commission of that offense, any
person committed any act described in paragraph (2), (3), or (4)
of this subdivision.
(6) The defendant personally inflicted great bodily injury on
the victim or another person in the commission of the present
offense in violation of Section 12022.53, 12022.7, or 12022.8.
(e) The following circumstances shall apply to the offenses
specified in subdivision (c):
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(1) Except as provided in paragraph (2) of subdivision (d), the
defendant kidnapped the victim of the present offense in violation
of Section 207, 209, or 209.5.
(2) Except as provided in paragraph (4) of subdivision (d), the
defendant committed the present offense during the commission
of a burglary in violation of Section 459.
(3) The defendant personally used a dangerous or deadly weapon
or a firearm in the commission of the present offense in violation
of Section 12022, 12022.3, 12022.5, or 12022.53.
(4) The defendant has been convicted in the present case or
cases of committing an offense specified in subdivision (c) against
more than one victim.
(5) The defendant engaged in the tying or binding of the victim
or another person in the commission of the present offense.
(6) The defendant administered a controlled substance to the
victim in the commission of the present offense in violation of
Section 12022.75.
(7) The defendant committed the present offense in violation
of Section 264.1, subdivision (d) of Section 286, or subdivision
(d) of Section 288a, and, in the commission of that offense, any
person committed any act described in paragraph (1), (2), (3), (4),
(6), or (7) of this subdivision.
(f) If only the minimum number of circumstances specified in
subdivision (d), (e), or (k) that are required for the punishment
provided in subdivision (a), (b), (j), (l), or (m) to apply have been
pled and proved, that circumstance or those circumstances shall
be used as the basis for imposing the term provided in subdivision
(a), (b), (j), (l), or (m), whichever is greater, rather than being used
to impose the punishment authorized under any other provision of
law, unless another provision of law provides for a greater penalty
or the punishment under another provision of law can be imposed
in addition to the punishment provided by this section. However,
if any additional circumstance or circumstances specified in
subdivision (d), (e), or (k) have been pled and proved, the minimum
number of circumstances shall be used as the basis for imposing
the term provided in subdivision (a), (j), or (l), and any other
additional circumstance or circumstances shall be used to impose
any punishment or enhancement authorized under any other
provision of law.
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(g) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any of the circumstances specified in subdivision (d), (e), or (k)
for any person who is subject to punishment under this section.
(h) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under
this section.
(i) For any offense specified in paragraphs (1) to (7), inclusive,
of subdivision (c), or in subdivision (n), the court shall impose a
consecutive sentence for each offense that results in a conviction
under this section if the crimes involve separate victims or involve
the same victim on separate occasions as defined in subdivision
(d) of Section 667.6.
(j) (1) Any person, who is 18 years of age or older, who is
convicted of an offense specified in subdivision (c) under one or
more of the circumstances specified in subdivision (d) or (k), or
under two or more of the circumstances specified in subdivision
(e), upon a victim who is a child under 14 years of age shall be
punished by imprisonment in the state prison for life without the
possibility of parole.
(2) Any person under 18 years of age who is convicted of an
offense specified in subdivision (c) under one or more of the
circumstances specified in subdivision (d) or (k), or under two or
more of the circumstances specified in subdivision (e), upon a
victim who is a child under 14 years of age shall be punished by
imprisonment in the state prison for 25 years to life.
(2)
(3) Any person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of age
shall be punished by imprisonment in the state prison for 25 years
to life.
(k) Any person who is convicted of an offense specified in
subdivision (c) upon a victim who is a child under 14 years of age
and who, in the commission of the offense, inflicted physical injury
resulting in a traumatic condition as defined in subdivision (c) of
Section 273.5 bodily harm upon the victim shall be punished
pursuant to subdivision (j).
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(l) Any person who is convicted of an offense specified in
subdivision (n) under one or more of the circumstances specified
in subdivision (d) or under two or more of the circumstances
specified in subdivision (e), upon a victim who is a minor 14 years
of age or older shall be punished by imprisonment in the state
prison for life without the possibility of parole.
(m) Any person who is convicted of an offense specified in
subdivision (n) under one of the circumstances specified in
subdivision (e) against a minor 14 years of age or older shall be
punished by imprisonment in the state prison for 25 years to life.
(n) Subdivision (l) and (m) shall apply to any of the following
offenses:
(1) Rape, in violation of paragraph (2) of subdivision (a) of
Section 261.
(2) Spousal rape, in violation of paragraph (1) of subdivision
(a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sexual penetration, in violation of paragraph (1) of
subdivision (a) of Section 289.
(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
Section 286, or in violation of subdivision (d) of Section 286.
(6) Oral copulation, in violation of paragraph (2) of subdivision
(c) of Section 288a, or in violation of subdivision (d) of Section
288a.
(o) The penalties provided in this section shall apply only if the
existence of any circumstance specified in subdivision (d), (e), or
(k) is alleged in the accusatory pleading pursuant to this section,
and is either admitted by the defendant in open court or found to
be true by the trier of fact.
(p) As used in this section, “bodily harm” means any substantial
physical injury resulting from the use of force that is more than
the force necessary to commit an offense specified in subdivision
(c).
SEC. 11.Section 3000 of the Penal Code is amended to read:
3000.(a) (1) The Legislature finds and declares that the period
immediately following incarceration is critical to successful
reintegration of the offender into society and to positive citizenship.
It is in the interest of public safety for the state to provide for the
effective supervision of and surveillance of parolees, including
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the judicious use of revocation actions, and to provide educational,
vocational, family and personal counseling necessary to assist
parolees in the transition between imprisonment and discharge. A
sentence pursuant to Section 1168 or 1170 shall include a period
of parole, unless waived, or as otherwise provided in this article.
(2) The Legislature finds and declares that it is not the intent of
this section to diminish resources allocated to the Department of
Corrections and Rehabilitation for parole functions for which the
department is responsible. It is also not the intent of this section
to diminish the resources allocated to the Board of Parole Hearings
to execute its duties with respect to parole functions for which the
board is responsible.
(3) The Legislature finds and declares that diligent effort must
be made to ensure that parolees are held accountable for their
criminal behavior, including, but not limited to, the satisfaction of
restitution fines and orders.
(4) The parole period of any person found to be a sexually
violent predator shall be tolled until that person is found to no
longer be a sexually violent predator, at which time the period of
parole, or any remaining portion thereof, shall begin to run.
(b) Notwithstanding any provision to the contrary in Article 3
(commencing with Section 3040) of this chapter, the following
shall apply:
(1) At the expiration of a term of imprisonment of one year and
one day, or a term of imprisonment imposed pursuant to Section
1170 or at the expiration of a term reduced pursuant to Section
2931 or 2933, if applicable, the inmate shall be released on parole
for a period not exceeding three years, except that any inmate
sentenced for an offense specified in paragraph (3), (4), (5), (6),
(11), (16), or (18) of subdivision (c) of Section 667.5, or an offense
specified in paragraph (2) of subdivision (b) of Section 288, shall
be released on parole for a period not exceeding 10 years, unless
a longer period of parole is specified in Section 3000.1.
(2) In the case of any inmate sentenced under Section 1168, the
period of parole shall not exceed five years in the case of an inmate
imprisoned for any offense other than first or second degree murder
for which the inmate has received a life sentence, and shall not
exceed three years in the case of any other inmate, unless in either
case the parole authority for good cause waives parole and
discharges the inmate from custody of the department. This
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subdivision shall also be applicable to inmates who committed
crimes prior to July 1, 1977, to the extent specified in Section
1170.2.
(3) Notwithstanding paragraphs (1) and (2), and except as
provided in subdivision (a) of Section 3000.1, in the case of any
offense for which the inmate has received a life sentence pursuant
to subdivision (b) of Section 209, if that offense was committed
with the intent to commit a specified sexual offense, or Section
667.61 or 667.71, the period of parole shall be 10 years.
(4) The parole authority shall consider the request of any inmate
regarding the length of his or her parole and the conditions thereof.
(5) Upon successful completion of parole, or at the end of the
maximum statutory period of parole specified for the inmate under
paragraph (1), (2), or (3), as the case may be, whichever is earlier,
the inmate shall be discharged from custody. The date of the
maximum statutory period of parole under this subdivision and
paragraphs (1), (2), and (3) shall be computed from the date of
initial parole and shall be a period chronologically determined.
Time during which parole is suspended because the prisoner has
absconded or has been returned to custody as a parole violator
shall not be credited toward any period of parole unless the prisoner
is found not guilty of the parole violation. However, the period of
parole is subject to the following:
(A) Except as provided in Section 3064, in no case may a
prisoner subject to three years on parole be retained under parole
supervision or in custody for a period longer than four years from
the date of his or her initial parole.
(B) Except as provided in Section 3064, in no case may a
prisoner subject to five years on parole be retained under parole
supervision or in custody for a period longer than seven years from
the date of his or her initial parole.
(C) Except as provided in Section 3064, in no case may a
prisoner subject to 10 years on parole be retained under parole
supervision or in custody for a period longer than 15 years from
the date of his or her initial parole.
(6) The Department of Corrections and Rehabilitation shall meet
with each inmate at least 30 days prior to his or her good time
release date and shall provide, under guidelines specified by the
parole authority, the conditions of parole and the length of parole
up to the maximum period of time provided by law. The inmate
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has the right to reconsideration of the length of parole and
conditions thereof by the parole authority. The Department of
Corrections and Rehabilitation or the Board of Parole Hearings
may impose as a condition of parole that a prisoner make payments
on the prisoner’s outstanding restitution fines or orders imposed
pursuant to subdivision (a) or (c) of Section 13967 of the
Government Code, as operative prior to September 28, 1994, or
subdivision (b) or (f) of Section 1202.4.
(7) For purposes of this chapter, the Board of Parole Hearings
shall be considered the parole authority.
(8) The sole authority to issue warrants for the return to actual
custody of any state prisoner released on parole rests with the
Board of Parole Hearings, except for any escaped state prisoner
or any state prisoner released prior to his or her scheduled release
date who should be returned to custody, and Section 3060 shall
apply.
(9) It is the intent of the Legislature that efforts be made with
respect to persons who are subject to Section 290.011 who are on
parole to engage them in treatment.
SEC. 12.Section 3000.1 of the Penal Code is amended to read:
3000.1.(a) (1) In the case of any inmate sentenced under
Section 1168 for any offense of first or second degree murder with
a maximum term of life imprisonment, the period of parole, if
parole is granted, shall be the remainder of the inmate’s life.
(2) Notwithstanding any other provision of law, in the case of
any inmate sentenced under subdivision (a) or paragraph (1) of
subdivision (b) of Section 288, Section 288.5, or Section 288.7,
the period of parole, if parole is granted, shall be the remainder of
the inmate’s life.
(3) Notwithstanding any other provision of law, in the case of
any inmate sentenced under Section 667.71 in which one or more
of the victims of the offense was a child under 14 years of age, the
period of parole, if parole is granted, shall be the remainder of the
inmate’s life.
(4) Notwithstanding any other provision of law, in the case of
any inmate sentenced under Section 269, subdivision (c) of Section
667.51 with a maximum term of life imprisonment, paragraph (2)
of subdivision (j) of Section 667.61, or subdivision (m) of Section
667.61, the period of parole, if parole is granted, shall be the
remainder of the inmate’s life.
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(5) Notwithstanding any other provision of law, in the case of
any inmate sentenced under Section 261, 262, 264.1, 286, 288a,
or 289 in which one or more of the victims of the offense was a
child under 14 years of age, the period of parole, if parole is
granted, shall be the remainder of the inmate’s life.
(b) Notwithstanding any other provision of law, when any person
referred to in paragraph (1) of subdivision (a) has been released
on parole from the state prison, and has been on parole
continuously for seven years in the case of any person imprisoned
for first degree murder, and five years in the case of any person
imprisoned for second degree murder, since release from
confinement, the board shall, within 30 days, discharge that person
from parole, unless the board, for good cause, determines that the
person will be retained on parole. The board shall make a written
record of its determination and transmit a copy of it to the parolee.
(c) In the event of a retention on parole, the parolee shall be
entitled to a review by the board each year thereafter.
(d) There shall be a hearing as provided in Sections 3041.5 and
3041.7 within 12 months of the date of any revocation of parole
to consider the release of the inmate on parole, and notwithstanding
the provisions of paragraph (2) of subdivision (b) of Section
3041.5, there shall be annual parole consideration hearings
thereafter, unless the person is released or otherwise ineligible for
parole release. The panel or board shall release the person within
one year of the date of the revocation unless it determines that the
circumstances and gravity of the parole violation are such that
consideration of the public safety requires a more lengthy period
of incarceration or unless there is a new prison commitment
following a conviction.
(e) The provisions of Section 3042 shall not apply to any
hearing held pursuant to this section.
SEC. 13.No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.
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SEC. 14.The provisions of this act are severable. If any
provision of this act 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.
O
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