BILL NUMBER: SB 33 CHAPTERED
BILL TEXT
CHAPTER 477
FILED WITH SECRETARY OF STATE OCTOBER 4, 2005
APPROVED BY GOVERNOR OCTOBER 4, 2005
PASSED THE SENATE SEPTEMBER 7, 2005
PASSED THE ASSEMBLY SEPTEMBER 6, 2005
AMENDED IN ASSEMBLY AUGUST 31, 2005
AMENDED IN SENATE JUNE 2, 2005
AMENDED IN SENATE MAY 27, 2005
AMENDED IN SENATE APRIL 14, 2005
AMENDED IN SENATE FEBRUARY 16, 2005
INTRODUCED BY Senators Battin and Poochigian
(Principal coauthor: Senator Alquist)
(Coauthor: Assembly Member Cohn)
DECEMBER 13, 2004
An act to amend Sections 285, 288.1, 1000.12, and 1203.066 of, and
to repeal Section 1000.13 of, the Penal Code, relating to sexual
abuse.
LEGISLATIVE COUNSEL'S DIGEST
SB 33, Battin Child sexual abuse.
Existing law provides that it is a felony 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 felony 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 delete the option of receiving a report from a
recognized treatment program.
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. The bill would specify the
conditions under which a person convicted of lewd and lascivious acts
upon a child or continuous sexual abuse of a child may be granted
probation.
This bill would make other conforming changes.
Because this bill would increase local incarceration costs and
change the punishment for a crime, 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.
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 288.1 of the Penal Code is amended to read:
288.1. 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.
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.
(d) (1) If a person is convicted of a violation of Section 288 or
288.5, and the factors listed in subdivision (a) are not pled or
proven, probation may be granted only if the following terms and
conditions are met:
(A) If the defendant is a member of the victim's household, the
court finds that probation is in the best interest of the child
victim.
(B) The court finds that rehabilitation of the defendant is
feasible and that the defendant is amenable to undergoing treatment,
and the defendant is placed in a recognized treatment program
designed to deal with child molestation immediately after the grant
of probation or the suspension of execution or imposition of
sentence.
(C) 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 victim's parent or legal guardian, other than the
defendant.
(D) The court finds that there is no threat of physical harm to
the victim if probation is granted.
(2) The court shall state its reasons on the record for whatever
sentence it imposes on the defendant.
(3) The court shall order the psychiatrist or psychologist who is
appointed pursuant to Section 288.1 to include a consideration of the
factors specified in subparagraphs (A), (B), and (C) in making his
or her report to the court.
(4) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon ability to pay.
(5) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(e) As used in subdivision (d), the following definitions apply:
(1) "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.
(2) "Recognized treatment program" means a program that consists
of the following components:
(A) Substantial expertise in the treatment of child sexual abuse.
(B) A treatment regimen designed to specifically address the
offense.
(C) The ability to serve indigent clients.
(D) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program, or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
SEC. 6. 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.