BILL ANALYSIS
AB 39
Page 1
Date of Hearing: April 22, 2003
Chief Counsel: Bruce E. Chan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 39 (Runner) - As Amended: March 27, 2002
SUMMARY : Increases the existing penalty for possession of
material depicting sexual activity of persons under the age of
18 from a misdemeanor to a felony, punishable by imprisonment in
the state prison. Specifically, this bill:
1)Increases the existing penalty from a misdemeanor punishable
by up to one year in the county jail to an alternate
felony-misdemeanor punishable by 16 months, 2 or 3 years in
state prison, or up to one year in the county jail, for
possessing material depicting sexual activity of a person
under the age of 18.
2)Increases the existing penalty from a misdemeanor punishable
by up to one year in the county jail, to a felony punishable
by 16 months, 2 or 3 years in state prison, by creating a new
felony offense of possessing material depicting sexual
activity of a person under the age of 14.
EXISTING LAW :
1)Provides that every person who possesses or controls any
matter depicting a person under the age of 18 years engaging
in sexual conduct is guilty of a misdemeanor with imprisonment
in the county jail up to one year or a fine not exceeding
$2,500. If a person has a prior conviction, he or she is
guilty of a felony and subject to imprisonment in the state
prison for two, four, or six years. It is not necessary to
prove that the matter in question is obscene. (Penal Code
Section 311.11.)
2)Defines "obscene material" as matter, taken as a whole, that
to the average person, applying contemporary statewide
standards, appeals to the prurient interest that, taken as a
whole, depicts or describes sexual conduct in a patently
offensive way and that, taken as a whole, lacks serious
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literary, artistic, political or scientific value. (Penal
Code Section 311.) Provides that it is a defense in any
obscenity prosecution that the act was committed for a
legitimate scientific or educational purpose. (Penal Code
Section 311.8.)
3)Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any
obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct, with the intent to
distribute, exhibit, or exchange such material, is guilty of
either a misdemeanor or a felony, punishable by imprisonment
in the county jail up to one year or in the state prison for
16 months, 2 or 3 years and a fine not to exceed $10,000.
(Penal Code Section 311.1.)
4)Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any
obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct, for commercial
purposes, is guilty of a felony, punishable by imprisonment in
the state prison for two, three, or six years and a fine up to
$100,000. [Penal Code Section 311.2(b).]
5)Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any matter
depicting a person under the age of l8 years engaging in or
simulating sexual conduct, to distribute, exhibit, or exchange
with an adult, is guilty of a misdemeanor, punishable by
imprisonment in the county jail up to one year. If the person
has a prior conviction, he or she is subject to imprisonment
in the state prison for 16 months, 2 or 3 years and a fine not
to exceed $2,000. It is not necessary to prove commercial
consideration or that the matter is obscene. [Penal Code
Section 311.2(c), 311.9(a).]
6)Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any matter
depicting a person under the age of l8 years engaging in or
simulating sexual conduct, to distribute, exhibit, or exchange
with a minor, is guilty of a felony, punishable by
imprisonment in the state prison for 16 months, 2 or 3 years.
It is not necessary to prove commercial consideration or that
the matter is obscene. [Penal Code Section 311.2(d).]
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7)Provides that every person who develops, duplicates, prints,
or exchanges representations of persons under the age of 18
years engaged in an act of sexual conduct is guilty of a
misdemeanor, punishable by imprisonment in the county jail up
to one year. If the person has a prior conviction, he or she
is guilty of a felony, punishable by imprisonment in the state
prison for 16 months, 2 or 3 years. (Penal Code Section
311.3.)
8)Provides that any person who hires or uses a minor to assist
in the preparation or distribution of obscene matter is guilty
of a misdemeanor. If the person has a prior conviction, he or
she is guilty of a felony with imprisonment in the state
prison for 16 months, 2 or 3 years. (Penal Code Section
311.4.)
9)Provides that any person who hires or uses a minor to assist
in the preparation or distribution of obscene matter for
commercial purposes is guilty of a felony, punishable by
imprisonment in the state prison for three, six, or eight
years. [Penal Code Section 311.4(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The existence
of child pornography in society is a despicable reality that
must be addressed. While current law does provide for the
punishment of those possessing child pornography, it seems
that possession of this lewd material has become more common
and even more egregious. Unfortunately, prosecutors lack the
discretion to base charges on the quantity of material
involved and the character of the individual in question -
their hands are tied with a single formula.
"With greater availability of child pornography via an Internet
that preserves anonymity and data frequently mounting that
links the commission of lewd pedophiliac acts with the
fascination of child pornography, Californians deserve the
peace of mind in knowing that the high-profile perverts will
be taken off the streets and will be punished for their
crimes. We are in a time when over one-half of the total sex
offenders in prison were convicted of crimes against children
and studies by the United States Postal Inspection Service,
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the Federal Bureau of Prisons, and the Federal Bureau of
Investigation show a very high correlation between the
possession of child pornography and the physical act of child
molestation. In this time, the State of California needs to
follow the lead of states such as New York, Massachusetts, and
Rhode Island, and pass legislation that creates a larger
deterrent for those who exploit children. This bill simply
increases the penalty for the first incidence of possession of
pornography by making it punishable as a misdemeanor or a
felony. District attorneys will have more discretion in
weighing the appropriate punishment to fit the crime, and will
wield another tool to deter against the exploitation of
children."
2)Current Law Provides for Felony Prosecution in a Number of
Different Situations : Current law provides for felony
prosecution of a person who possesses with the intent to
distribute, exhibit or exchange child pornography. (Penal
Code Section 311.1 and 311.2.) Similarly, current law
provides for felony prosecution for a person who exploits a
child by using the child as a participant in the process of
preparing such matter. (Penal Code Section 311.4.) If a
person has a prior conviction under the statutory scheme, he
or she is subject to imprisonment in the state prison as well
as increased fines. (Penal Code Section 311.9.) A person who
possesses material depicting persons under the age of 18
engaging in actual or simulated sexual conduct is subject to
imprisonment in the county jail up to one year. If the person
re-offends, he or she can be sentenced to prison for two,
four, or six years.
Existing law provides significant penalties. For example, a
person found guilty of possessing the prohibited material can
be incarcerated for a substantial period of time. As a
condition of probation, a judge can order that the person not
possess child pornography and that his or her person, place of
residence, and car are subject to a warrantless search by a
peace or probation officer. If the person on probation
continues to possess the prohibited material, he or she can be
sentenced to prison for two, four, or six years. (Penal Code
Section 311.11.)
This bill allows a felony conviction for a first offense of
possession of matter showing actual or simulated sexual
conduct by a minor. While there appears to be little question
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that sexual exploitation of minors is harmful, the current
statutes are complex and comprehensive. Substantial prison
sentences and fines can punish any egregious conduct.
3)Possession of Child Pornography with the Intent to Distribute,
Exhibit, or Exchange is an Alternate Felony-Misdemeanor
Offense : In describing the need for this bill, the author
states, "Prosecutors lack the discretion to base charges on
the quantity of material involved and the character of the
individual in question - their hands are tied with a single
formula." However, existing law provides that every person
who sends, brings, possesses, prepares, publishes, produces,
duplicates or prints any obscene matter depicting a person
under the age of l8 years engaging in or simulating sexual
conduct, with the intent to distribute, exhibit, or exchange
such material, is guilty of either a misdemeanor or a felony,
punishable by imprisonment in the county jail up to one year
or in the state prison for 16 months, 2 or 3 years and a fine
not to exceed $10,000. (Penal Code Section 311.1.) Thus, if
an individual has a substantial quantity of such matter,
depending upon the circumstances, he or she may be subject to
the enhanced penalties that accompany possession with the
intent to distribute child pornography.
4)The Definition of "Commercial Purpose" is Broad : In a recent
opinion, the California Supreme Court decided that producing
child pornography and posting it on the Internet in order to
induce others to trade pornography (without making a monetary
profit), satisfies the statutory requirement of a "commercial
purpose" in Penal Code Section 311.4 (b). [ People v. Cochran
(2002) 28 Cal. 4th 396.]
In Cochran , after receiving information that a person had posted
child pornography on three Internet newsgroup sites, the FBI
traced an electronic mail message to the defendant. In
conducting the warrant-based search of the defendant's home,
the police found a videotape the defendant had made of his
nine-year-old daughter and himself engaging in various sexual
acts. The videotape was the source of numerous still
photographs the defendant posted on the Internet. The Court
broadly construed the concept of producing child pornography
for commercial purposes and concluded that posting child
pornography on the Internet under the circumstances of the
case subjected the defendant to the increased penalty
provisions of Penal Code Section 311.4(b).
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5)This Bill Creates Felonies for First-Time Possession : Current
law imposes relatively severe recidivist penalties - two,
four, or six years in prison - for persons who have a previous
conviction for possession of child pornography. This bill
creates felonies for the first-time possession of child
pornography. Arguably, a stronger case for increased
penalties may be made for persons who possess a substantial
quantity of such material or who have previously been
convicted of sex crimes against children. Possession of child
pornography by persons who have committed serious crimes
against minors indicates they still have sexual desires for
children. As they have realized these desires in the past, it
may be inferred that they may do so again in the future. A
similar inference may not be justified for persons who have
been convicted of possession for the first time.
6)Prior Legislation : AB 501 (Runner), of the 2001-02
Legislative Session, failed passage in the Assembly Committee
on Public Safety. AB 665 (Maddox), of the 1999-2000
Legislative Session, was identical to this bill and failed
passage in the Assembly Committee on Public Safety.
7)Similar Legislation : AB 1499 (Liu) and AB 402 (Plescia) are
pending hearing by the Assembly Committee on Appropriations.
REGISTERED SUPPORT / OPPOSITION :
Support
Amber Center for Missing and Exploited Children
Association for Los Angeles Deputy Sheriffs
California Catholic Conference
California District Attorneys Association
California Sexual Assault Investigators Association
California State Sheriffs Association
Californians For The Positive Enforcement of Megan's Law
Campaign for California Families
Committee on Moral Concerns
County of San Diego
Crime Victims United of California
Danielle Legacy Foundation
Peace Officers Research Association of California
San Bernardino County Sheriff's Department
Traditional Values Coalition
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One private citizen
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Bruce Chan / PUB. S. / (916) 319-3744