BILL NUMBER: AB 33 CHAPTERED
BILL TEXT
CHAPTER 461
FILED WITH SECRETARY OF STATE OCTOBER 4, 2005
APPROVED BY GOVERNOR OCTOBER 4, 2005
PASSED THE ASSEMBLY SEPTEMBER 1, 2005
PASSED THE SENATE AUGUST 30, 2005
AMENDED IN SENATE AUGUST 16, 2005
AMENDED IN SENATE JUNE 30, 2005
AMENDED IN ASSEMBLY MARCH 8, 2005
INTRODUCED BY Assembly Member Sharon Runner
(Coauthors: Assembly Members Benoit, Bermudez, Bogh, Chavez,
Cogdill, Cohn, Daucher, DeVore, Garcia, Shirley Horton, Huff, Koretz,
La Suer, Leslie, Mountjoy, Nakanishi, Plescia, Spitzer, Walters, and
Wyland)
(Coauthors: Senators Ackerman, Battin, Cox, Denham, Dutton,
Escutia, Maldonado, Margett, and Runner)
DECEMBER 6, 2004
An act to amend Sections 272 and 502.01 of the Penal Code,
relating to crime.
LEGISLATIVE COUNSEL'S DIGEST
AB 33, Sharon Runner Contact with minor.
Existing law provides that it is a crime for an adult stranger to
contact or communicate with a minor, 12 years of age or younger, who
the adult knew or should have known was 12 years of age or younger,
to lure him or her away, as specified, for any purpose. Existing law
provides that this crime is punishable by a fine, by imprisonment in
a county jail, or by both.
This bill would prohibit this conduct when engaged in with a
person who is under 14 years of age. This bill would provide that
this crime is punishable as an infraction or a misdemeanor, as
specified.
Existing law provides that certain property, such as a computer,
may be subject to forfeiture if used by a defendant to commit
particular offenses, as specified. Existing law further provides the
process by which property is forfeited and by which it may be
recovered by the owner.
This bill would provide that if the defendant used his or her
computer to communicate with the victim in the attempt to lure the
victim then that computer is subject to forfeiture. Because this bill
would change the definition of a crime, it would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 272 of the Penal Code is amended to read:
272. (a) (1) Every person who commits any act or omits the
performance of any duty, which act or omission causes or tends to
cause or encourage any person under the age of 18 years to come
within the provisions of Section 300, 601, or 602 of the Welfare and
Institutions Code or which act or omission contributes thereto, or
any person who, by any act or omission, or by threats, commands, or
persuasion, induces or endeavors to induce any person under the age
of 18 years or any ward or dependent child of the juvenile court to
fail or refuse to conform to a lawful order of the juvenile court, or
to do or to perform any act or to follow any course of conduct or to
so live as would cause or manifestly tend to cause that person to
become or to remain a person within the provisions of Section 300,
601, or 602 of the Welfare and Institutions Code, is guilty of a
misdemeanor and upon conviction thereof shall be punished by a fine
not exceeding two thousand five hundred dollars ($2,500), or by
imprisonment in the county jail for not more than one year, or by
both fine and imprisonment in a county jail, or may be released on
probation for a period not exceeding five years.
(2) For purposes of this subdivision, a parent or legal guardian
to any person under the age of 18 years shall have the duty to
exercise reasonable care, supervision, protection, and control over
their minor child.
(b) (1) An adult stranger who is 21 years of age or older, who
knowingly contacts or communicates with a minor who is under 14 years
of age, who knew or reasonably should have known that the minor is
under 14 years of age, for the purpose of persuading and luring, or
transporting, or attempting to persuade and lure, or transport, that
minor away from the minor's home or from any location known by the
minor's parent, legal guardian, or custodian, to be a place where the
minor is located, for any purpose, without the express consent of
the minor's parent or legal guardian, and with the intent to avoid
the consent of the minor's parent or legal guardian, is guilty of an
infraction or a misdemeanor, subject to subdivision (d) of Section
17.
(2) This subdivision shall not apply in an emergency situation.
(3) As used in this subdivision, the following terms are defined
to mean:
(A) "Emergency situation" means a situation where the minor is
threatened with imminent bodily harm, emotional harm, or
psychological harm.
(B) "Contact" or "communication" includes, but is not limited to,
the use of a telephone or the Internet, as defined in Section 17538
of the Business and Professions Code.
(C) "Stranger" means a person of casual acquaintance with whom no
substantial relationship exists, or an individual with whom a
relationship has been established or promoted for the primary purpose
of victimization, as defined in subdivision (e) of Section 6600 of
the Welfare and Institutions Code.
(D) "Express consent" means oral or written permission that is
positive, direct, and unequivocal, requiring no inference or
implication to supply its meaning.
(4) This section shall not be interpreted to criminalize acts of
persons contacting minors within the scope and course of their
employment, or status as a volunteer of a recognized civic or
charitable organization.
(5) This section is intended to protect minors and to help parents
and legal guardians exercise reasonable care, supervision,
protection, and control over minor children.
SEC. 2. Section 502.01 of the Penal Code is amended to read:
502.01. (a) As used in this section:
(1) "Property subject to forfeiture" means any property of the
defendant that is illegal telecommunications equipment as defined in
subdivision (g) of Section 502.8, or a computer, computer system, or
computer network, and any software or data residing thereon, if the
telecommunications device, computer, computer system, or computer
network was used in committing a violation of, or conspiracy to
commit a violation of, subdivision (b) of Section 272, Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 422, 470,
470a, 472, 475, 476, 480, 483.5, 484g, or subdivision (a), (b), or
(d) of Section 484e, subdivision (a) of Section 484f, subdivision (b)
or (c) of Section 484i, subdivision (c) of Section 502, or Section
502.7, 502.8, 529, 529a, or 530.5, 537e, 593d, 593e, or 646.9, or was
used as a repository for the storage of software or data obtained in
violation of those provisions. Forfeiture shall not be available for
any property used solely in the commission of an infraction. If the
defendant is a minor, it also includes property of the parent or
guardian of the defendant.
(2) "Sentencing court" means the court sentencing a person found
guilty of violating or conspiring to commit a violation of
subdivision (b) of Section 272, Section 288, 288.2, 311.1, 311.2,
311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475, 476,
480, 483.5, 484g, or subdivision (a), (b), or (d) of Section 484e,
subdivision (d) of Section 484e, subdivision (a) of Section 484f,
subdivision (b) or (c) of Section 484i, subdivision (c) of Section
502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d, 593e, or
646.9, or, in the case of a minor, found to be a person described in
Section 602 of the Welfare and Institutions Code because of a
violation of those provisions, the juvenile court.
(3) "Interest" means any property interest in the property subject
to forfeiture.
(4) "Security interest" means an interest that is a lien,
mortgage, security interest, or interest under a conditional sales
contract.
(5) "Value" has the following meanings:
(A) When counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items that are
counterfeited.
(B) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the "value" of those components of computer software
packages shall be equivalent to the retail price or fair market price
of the number of completed computer software packages that could
have been made from those components.
(b) The sentencing court shall, upon petition by the prosecuting
attorney, at any time following sentencing, or by agreement of all
parties, at the time of sentencing, conduct a hearing to determine
whether any property or property interest is subject to forfeiture
under this section. At the forfeiture hearing, the prosecuting
attorney shall have the burden of establishing, by a preponderance of
the evidence, that the property or property interests are subject to
forfeiture. The prosecuting attorney may retain seized property that
may be subject to forfeiture until the sentencing hearing.
(c) Prior to the commencement of a forfeiture proceeding, the law
enforcement agency seizing the property subject to forfeiture shall
make an investigation as to any person other than the defendant who
may have an interest in it. At least 30 days before the hearing to
determine whether the property should be forfeited, the prosecuting
agency shall send notice of the hearing to any person who may have an
interest in the property that arose before the seizure.
A person claiming an interest in the property shall file a motion
for the redemption of that interest at least 10 days before the
hearing on forfeiture, and shall send a copy of the motion to the
prosecuting agency and to the probation department.
If a motion to redeem an interest has been filed, the sentencing
court shall hold a hearing to identify all persons who possess valid
interests in the property. No person shall hold a valid interest in
the property if, by a preponderance of the evidence, the prosecuting
agency shows that the person knew or should have known that the
property was being used in violation of, or conspiracy to commit a
violation of, subdivision (b) of Section 272, Section 288, 288.2,
311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
475, 476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of
Section 484e, subdivision (a) of Section 484f, subdivision (b) or (c)
of Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, 530.5, 537e, 593d, 593e, or 646.9, and that the
person did not take reasonable steps to prevent that use, or if the
interest is a security interest, the person knew or should have known
at the time that the security interest was created that the property
would be used for a violation.
(d) If the sentencing court finds that a person holds a valid
interest in the property, the following provisions shall apply:
(1) The court shall determine the value of the property.
(2) The court shall determine the value of each valid interest in
the property.
(3) If the value of the property is greater than the value of the
interest, the holder of the interest shall be entitled to ownership
of the property upon paying the court the difference between the
value of the property and the value of the valid interest.
If the holder of the interest declines to pay the amount
determined under paragraph (2), the court may order the property sold
and designate the prosecutor or any other agency to sell the
property. The designated agency shall be entitled to seize the
property and the holder of the interest shall forward any
documentation underlying the interest, including any ownership
certificates for that property, to the designated agency. The
designated agency shall sell the property and pay the owner of the
interest the proceeds, up to the value of that interest.
(4) If the value of the property is less than the value of the
interest, the designated agency shall sell the property and pay the
owner of the interest the proceeds, up to the value of that interest.
(e) If the defendant was a minor at the time of the offense, this
subdivision shall apply to property subject to forfeiture that is the
property of the parent or guardian of the minor.
(1) The prosecuting agency shall notify the parent or guardian of
the forfeiture hearing at least 30 days before the date set for the
hearing.
(2) The computer or telecommunications device shall not be subject
to forfeiture if the parent or guardian files a signed statement
with the court at least 10 days before the date set for the hearing
that the minor shall not have access to any computer or
telecommunications device owned by the parent or guardian for two
years after the date on which the minor is sentenced.
(3) If the minor is convicted of a violation of Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a,
472, 476, 480, or subdivision (b) of Section 484e, subdivision (d) of
Section 484e, subdivision (a) of Section 484f, subdivision (b) of
Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, or 530.5, within two years after the date on which
the minor is sentenced, and the violation involves a computer or
telecommunications device owned by the parent or guardian, the
original property subject to forfeiture, and the property involved in
the new offense, shall be subject to forfeiture notwithstanding
paragraph (2).
(4) Notwithstanding paragraph (1), (2), or (3), or any other
provision of this chapter, if a minor's parent or guardian makes full
restitution to the victim of a crime enumerated in this chapter in
an amount or manner determined by the court, the forfeiture
provisions of this chapter do not apply to the property of that
parent or guardian if the property was located in the family's
primary residence during the commission of the crime.
(f) Notwithstanding any other provision of this chapter, the court
may exercise its discretion to deny forfeiture where the court finds
that the convicted defendant, or minor adjudicated to come within
the jurisdiction of the juvenile court, is not likely to use the
property otherwise subject to forfeiture for future illegal acts.
(g) If the defendant is found to have the only valid interest in
the property subject to forfeiture, it shall be distributed as
follows:
(1) First, to the victim, if the victim elects to take the
property as full or partial restitution for injury, victim
expenditures, or compensatory damages, as defined in paragraph (1) of
subdivision (e) of Section 502. If the victim elects to receive the
property under this paragraph, the value of the property shall be
determined by the court and that amount shall be credited against the
restitution owed by the defendant. The victim shall not be penalized
for electing not to accept the forfeited property in lieu of full or
partial restitution.
(2) Second, at the discretion of the court, to one or more of the
following agencies or entities:
(A) The prosecuting agency.
(B) The public entity of which the prosecuting agency is a part.
(C) The public entity whose officers or employees conducted the
investigation resulting in forfeiture.
(D) Other state and local public entities, including school
districts.
(E) Nonprofit charitable organizations.
(h) If the property is to be sold, the court may designate the
prosecuting agency or any other agency to sell the property at
auction. The proceeds of the sale shall be distributed by the court
as follows:
(1) To the bona fide or innocent purchaser or encumbrancer,
conditional sales vendor, or mortgagee of the property up to the
amount of his or her interest in the property, if the court orders a
distribution to that person.
(2) The balance, if any, to be retained by the court, subject to
the provisions for distribution under subdivision (g).
SEC. 3. 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.