BILL NUMBER: SB 33 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 27, 2005
AMENDED IN SENATE APRIL 14, 2005
AMENDED IN SENATE FEBRUARY 16, 2005
INTRODUCED BY Senator Battin
DECEMBER 13, 2004
An act to amend Sections 285, Section
288.1 , 1000.12 and 1203.066 of, and to repeal Section
1000.13 of, of the Penal Code, relating to
sexual abuse.
LEGISLATIVE COUNSEL'S DIGEST
SB 33, as amended, Battin. Child sexual abuse.
Existing law provides that it is a crime punishable by
imprisonment in the state prison for persons within the degrees of
consanguinity within which marriages are declared by law to be
incestuous and void to commit fornication or adultery with one
another.
This bill would provide that it is a crime punishable by
imprisonment in the state prison for persons within specified degrees
of consanguinity who are 14 years of age or older to commit
fornication or adultery with one another.
Existing law provides that any person convicted of committing any
lewd or lascivious act upon a child under 14 years of age shall not
have his or her sentence suspended until the court obtains a report
as to the mental condition of that person from a reputable
psychiatrist or psychologist, or from a recognized treatment program.
This bill would also provide that if the defendant is a member of
the victim's household, he or she shall not be granted probation
unless they are removed from the victim's household until the court
determines that the best interests of the victim would be served by
his or her return. This bill would also provide that while removed
from the household, the court shall prohibit contact by the defendant
with the victim, as specified.
Existing law provides that, in lieu of prosecuting a person
suspected of committing an act of abuse or neglect involving a minor
victim, the prosecuting attorney may refer that person for counseling
and psychological treatment.
This bill would specify that these provisions only apply to a
person suspected of committing physical abuse or neglect.
Existing law also provides that, in lieu of trial, the prosecuting
attorney may make a motion to defer entry of judgment with respect
to any crime charged in which a minor is a victim of an act of
molestation or sexual abuse, upon written agreement between the
prosecuting attorney and the suspect, if he or she is a family member
of the victim, the person has no prior violent or sexual felony
convictions, and no adverse diversion or counseling history, as
specified, provided that rehabilitation is feasible, there is no
threat of harm to the minor, the charged offense is not a lewd or
lascivious act or any other sexual offense committed by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury, the defendant pleads guilty and completes an approved
treatment program, 5 years after which, the court shall dismiss the
charges against the defendant.
This bill would repeal these provisions.
Existing law provides that a person who is convicted of committing
lewd and lascivious acts upon a child or engaging in continuous
sexual abuse of a child, if the violation involved more than one
victim, substantial sexual conduct with a victim who was under 14
years of age, or the use of obscene matter depicting sexual conduct,
as specified, shall be ineligible for probation, a suspended
sentence, nor shall any of the charges against him or her be
dismissed, as specified, unless the court makes several findings
including that the defendant is the victim's parent or relative,
grant of probation is in the best interest of the child,
rehabilitation of the defendant is feasible, and there is no threat
of physical harm to the child.
This bill would instead provide that probation shall not be
granted to, nor shall the execution or imposition of sentence be
suspended for any person convicted of committing these offenses if
the existence of any fact required to prove the allegation is alleged
in the accusatory pleading and either admitted by the defendant or
found to be true by the trier of fact. Further, for the existence of
any fact relating to lewd and lascivious acts against multiple
victims, in order for these provisions to apply, the allegation must
specifically reference these provisions.
This bill would make other conforming changes.
Because this bill would increase local incarceration costs
and change the punishment for a crime
terms of probation , it would create 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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 285 of the Penal Code is amended to read:
285.
Persons being within the degrees of consanguinity within which
marriages are declared by law to be incestuous and void, who
intermarry with each other, or who being 14 years of age or older,
commit fornication or adultery with each other, are punishable by
imprisonment in the state prison.
SEC. 2.
SECTION 1. Section 288.1 of the Penal Code is amended to
read:
288.1.
(a) Any person convicted of committing any lewd or lascivious act
including any of the acts constituting other crimes provided for in
Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years shall not have his or
her sentence suspended until the court obtains a report from a
reputable psychiatrist, from a reputable psychologist who meets the
standards set forth in Section 1027, as to the mental condition of
that person.
(b) If the defendant is a member of the victim's household,
probation shall not be granted unless the defendant is removed from
the household of the victim until the court determines that the best
interests of the victim would be served by his or her return. While
removed from the household, the court shall prohibit contact by the
defendant with the victim, with the exception that the court may
permit supervised contact, upon the request of the director of the
court ordered supervised treatment program, and with the agreement of
the victim and the victims's parent or legal guardian, other than
the defendant. As used in this subdivision, "contact with the victim"
includes all physical contact, being in the presence of the victim,
communicating by any means, including by a third party acting on
behalf of the defendant, or sending any gifts.
SEC. 3. Section 1000.12 of the Penal Code is amended to read:
1000.12.
(a) It is the intent of the Legislature that nothing in this
chapter deprive a prosecuting attorney of the ability to prosecute
any person who is suspected of committing any crime in which a minor
is a victim of an act of physical abuse or neglect to the fullest
extent of the law, if the prosecuting attorney so chooses.
(b) In lieu of prosecuting a person suspected of committing any
crime, involving a minor victim, of an act of physical abuse or
neglect, the prosecuting attorney may refer that person to the county
department in charge of public social services or the probation
department for counseling or psychological treatment and such other
services as the department deems necessary. The prosecuting attorney
shall seek the advice of the county department in charge of public
social services or the probation department in determining whether or
not to make the referral.
(c) This section shall not apply to any person who is charged with
sexual abuse or molestation of a minor victim, or any sexual offense
involving force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the minor victim or another person.
SEC. 4. Section 1000.13 of the Penal Code is repealed.
SEC. 5. Section 1203.066 of the Penal Code is amended to read:
1203.066.
(a) Notwithstanding Section 1203 or any other law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, nor shall a finding bringing the defendant within
the provisions of this section be stricken pursuant to Section 1385
for, any of the following persons:
(1) A person who is convicted of violating Section 288 or 288.5
when the act is committed by the use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim
or another person.
(2) A person who caused bodily injury on the child victim in
committing a violation of Section 288 or 288.5.
(3) A person who is convicted of a violation of Section 288 or
288.5 and who was a stranger to the child victim or befriended the
child victim for the purpose of committing an act in violation of
Section 288 or 288.5, unless the defendant honestly and reasonably
believed the victim was 14 years of age or older.
(4) A person who used a weapon during the commission of a
violation of Section 288 or 288.5.
(5) A person who is convicted of committing a violation of Section
288 or 288.5 and who has been previously convicted of a violation of
Section 261, 262, 264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a,
or 289, or of assaulting another person with intent to commit a
crime specified in this paragraph in violation of Section 220, or who
has been previously convicted in another state of an offense which,
if committed or attempted in this state, would constitute an offense
enumerated in this paragraph.
(6) A person who violated Section 288 or 288.5 while kidnapping
the child victim in violation of Section 207, 209, or 209.5.
(7) A person who is convicted of committing a violation of Section
288 or 288.5 against more than one victim.
(8) A person who, in violating Section 288 or 288.5, has
substantial sexual conduct with a victim who is under 14 years of
age.
(9) A person who, in violating Section 288 or 288.5, used obscene
matter, as defined in Section 311, or matter, as defined in Section
311, depicting sexual conduct, as defined in Section 311.3.
(b) "Substantial sexual conduct" means penetration of the vagina
or rectum of either the victim or the offender by the penis of the
other or by any foreign object, oral copulation, or masturbation of
either the victim or the offender.
(c) (1) Except for a violation of subdivision (b) of Section 288,
this section shall only apply if the existence of any fact required
in subdivision (a) is alleged in the accusatory pleading and is
either admitted by the defendant in open court, or found to be true
by the trier of fact.
(2) For the existence of any fact under paragraph (7) of
subdivision (a), the allegation must be made pursuant to this
section.
SEC. 6. SEC. 2.
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.