BILL NUMBER: SB 588 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 18, 2005
AMENDED IN SENATE AUGUST 15, 2005
INTRODUCED BY Senators Runner, Denham, Hollingsworth, and
Poochigian
FEBRUARY 18, 2005
An act to amend Sections 209, 220, 269, 290.3, 311.11, 667.1,
667.5, 667.51, 667.6, 667.61, 667.71, 1170.125, 1203.06, 1203.065,
1203.075, 3000, 3001, 3003, 3003.5, 3004, and 12022.75 of, and to add
Sections 288.3 and 3000.07 to, the Penal Code, and to amend Sections
6600, 6600.1, 6601, 6604, 6604.1, 6605, and 6608 of the Welfare and
Institutions Code, relating to sex offenders , and declaring the
urgency thereof, to take effect immediately .
LEGISLATIVE COUNSEL'S DIGEST
SB 588, as amended, Runner The Sexual Predator Punishment and
Control Act: Jessica's Law.
Under existing law, the punishment for kidnapping with the intent
to commit any of several specified sexual acts is imprisonment in the
state prison for life with the possibility of parole.
This bill, to be known as the Sexual Predator Punishment and
Control Act: Jessica's Law, would add rape committed in concert and
committing lewd and lascivious acts to the above specified sexual
acts.
Under existing law, the punishment for assault with intent to
commit any of several specified sexual acts is imprisonment in the
state prison for 2, 4, or 6 years.
This bill would provide that the punishment for assaulting another
person with the intent to commit any of several specified sexual
acts while in the commission of a first degree burglary is
imprisonment in the state prison for life with the possibility of
parole.
Under existing law, a person who commits any of several sexual
acts upon a child who is under 14 years of age and 10 or more years
younger that the person, is guilty of aggravated sexual assault of a
child.
This bill would change the age elements of the crime to 14 years
of age and 7 or more years younger than the perpetrator, and would
expand the types of sex offenses to which it would apply. The bill
would require the court to impose a consecutive sentence for each
offense that results in a conviction under this provision.
This bill would create a new felony offense for persons who
contact or communicate with a minor, as defined, or who attempt to
contact or communicate with a minor, or a person they know or
reasonably should know is a minor, with the intent to commit any of
several specified sex offenses.
Under existing law, the court is required to impose a fine of $200
for the first conviction of a person who is convicted of a sex
offense for which registration as a sex offender is required, and
$300 for a subsequent conviction.
This bill would increase those fines to $300 and $500,
respectively, and would allocate $100 from each fine to the
Department of Corrections and Rehabilitation to defray the costs of
global positioning systems used to monitor sex offender parolees.
Under existing law, it is a misdemeanor for a person to knowingly
possess or control any matter or representation of information, data,
or image, as specified, the production of which involves the use of
a person under 18 years of age engaging in or simulating sexual
conduct. If a person has previously been convicted of that crime, or
other crimes related to child pornography, the punishment is
imprisonment in the state prison for 2, 4, or 6 years.
This bill would increase the penalty for the first offense of that
crime to a misdemeanor or felony. The bill would expand the types of
crimes that would trigger punishment for a subsequent offense.
Existing law, which requires amendments to its provisions to be
approved by 2/3 of the membership of both houses of the Legislature,
defines "violent felony" for purposes of various provisions of the
Penal Code.
This bill would include in that definition various sex offenses
committed against a child who is under 14 years of age and more than
10 years younger than the perpetrator, or committed in concert.
Existing law provides for an enhanced prison term of 5 years for a
person convicted of committing any of several specified sex offenses
who had a prior conviction for any of several other specified sex
offenses. The enhanced term for a person with 2 or more previous
convictions of any of those sex offense is 10 years. The enhanced
term does not apply if that person has not been in custody for, or
committed a felony during, at least 10 years between the instant and
prior offense. Existing law requires the person to receive credits
for time served or work, to reduce his or her sentence.
This bill would expand the types of sex crimes to which these
provision apply, delete the 10-year exception, and would eliminate
the possibility of the person receiving credit to reduce his or her
sentence.
Under existing law, persons who are convicted of committing
certain sex offense who have previously been convicted of other sex
offenses, including habitual sexual offenders, as defined, or who are
convicted of certain sex offenses during the commission of another
offense, are eligible for credit to reduce the minimum term imposed.
This bill would eliminate that eligibility for those persons.
Under existing law, the punishment for a conviction of certain sex
offenses is 25 years to life if the offense was committed in the
course of a kidnapping or burglary, the victim was tortured, or the
defendant had previously been convicted of one of these sex crimes.
This bill would add continuous sexual abuse of a child to those
sex offenses.
Under existing law, the court has the authority to order an action
dismissed or to strike a prior conviction, for purposes of
sentencing a defendant.
This bill would prohibit a court from striking an allegation,
admission, or finding of a prior conviction for, and would prohibit
granting probation to, or suspending the execution or imposition of
sentence for, defendants who are convicted of certain sex offenses.
Under existing law, a court is prohibited from granting probation
to, or suspending the execution or imposition of sentence for any
person who, with the intent to inflict the injury, personally
inflicts great bodily injury on another person during the commission
of any of several crimes.
This bill would eliminate the intent requirement of that
provision.
Under existing law, any finding made that a person is a sexually
violent predator, as specified, shall not toll, discharge, or
otherwise affect that person's period of parole.
This bill would instead provide that the parole period of a 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 shall begin to run.
Under existing law, the period of parole for a person convicted of
certain sex offenses is 5 years, which period may be extended for an
additional 5 years after a hearing by the Board of Parole Hearings.
This bill would increase that period of parole to 10 years, would
eliminate the possibility of extension of parole, and would authorize
that person to be discharged from parole after 6 years, as
specified.
Existing law requires all persons convicted of specified sex
offense to register as a sex offender, as specified.
This bill would require every person who has been convicted of a
felony that triggers the registration requirement, or an attempt to
commit such a felony, who is released on parole, to be monitored by a
global positioning system for the term of his or her parole. The
bill would require the parolee to pay the cost of the monitoring,
except upon a finding of the inability to pay. The bill would further
require all of those persons to continue being monitored by a global
positioning system, once discharged from parole, for the rest of
their lives.
Existing law prohibits a person who was convicted of certain sex
offenses with children from being placed or residing within 1/4 mile
of any public or private school during the period of parole.
This bill would eliminate that prohibition and instead provide
that it is unlawful for any person who is required to register as a
sex offender to reside within 2000 feet or any public or private
school, or any park where children regularly gather.
Existing law provides for an enhanced penalty of 3 years for any
person who administers a controlled substance to another person
against his or her will, for the purpose of committing a felony.
This bill would create an additional enhancement of 5 years if
that felony is any of several specified sex offenses.
Existing law defines "conviction for a sexually violent offense"
for purposes of laws pertaining to sexually violent predators.
This bill would expand that definition to include certain prior
convictions, and would expand the definition of "sexually violent
offense" for those purposes.
Under existing law, if the victim of certain specified sex
offenses is a child under 14 years of age and the offending act
involved substantial sexual conduct, the offense is considered a
"sexually violent offense" for purposes of enhanced punishment.
This bill would eliminate the element of substantial sexual
conduct from that definition.
Under existing law, if a person is determined to be a sexually
violent predator, he or she is committed to the State Department of
Mental Health for 2 years for appropriate treatment and confinement.
Confinement may not be extended except by court order.
This bill would change that commitment to an indeterminate term,
and would require an annual report to be made about the
appropriateness of conditionally releasing the person to a less
restrictive environment.
Because this bill would expand the scope of certain crimes,
increase the penalties for certain crime, and create a new crime, the
bill 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.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited as, the
Sexual Predator Punishment and Control Act: Jessica's Law
SEC. 2. The Legislature finds and declares the following:
(a) The State of California currently places a high priority on
maintaining public safety through highly skilled and trained law
enforcement personnel as well as laws that deter and punish criminal
behavior.
(b) Sex offenders have very high recidivism rates. According to a
1998 report by the U.S. Department of Justice, sex offenders are the
least likely to be cured and the most likely to reoffend, and they
prey on the most innocent members of our society. More than
two-thirds of the victims of rape and sexual assault are under 18
years of age. Sex offenders have a dramatically higher recidivism
rate for their crimes than any other type of violent felon.
(c) Child pornography exploits children and robs them of their
innocence. FBI studies have shown that pornography is very
influential in the actions of sex offenders. Statistics show that 90
percent of the predators who molest children have had some type of
involvement with pornography. Predators often use child pornography
to aid in their molestation.
(d) The universal use of the Internet has also ushered in an era
of increased risk to our children by predators using this technology
as a tool to lure children away from their homes and into dangerous
situations. Therefore, to reflect society's disapproval of this type
of activity, adequate penalties must be enacted to ensure predators
cannot escape prosecution.
(e) With these changes, Californians will be in a better position
to keep themselves, their children, and their communities safe from
the threat posed by sex offenders.
(f) It is the intent of the people in enacting this measure to
help Californians better protect themselves, their children, and
their communities; it is not the intent of the people to embarrass or
harass persons convicted of sex offenses.
(g) Californians have a right to know about the presence of sex
offenders in their communities, near their schools, and around their
children.
(h) California must also take additional steps to monitor sex
offenders, to protect the public from them, and to provide adequate
penalties for and safeguards against sex offenders, particularly
those who prey on children. Existing laws that punish aggravated
sexual assault, habitual sexual offenders, and child molesters must
be strengthened and improved. In addition, existing laws that provide
for the commitment and control of sexually violent predators must be
strengthened and improved.
(i) Additional resources are necessary to adequately monitor and
supervise sexual predators and offenders. It is vital that the
lasting effects of the assault do not further victimize victims of
sexual assault.
(j) Global Positioning System technology is a useful tool for
monitoring sexual predators and other sex offenders, and is a
cost-effective measure for parole supervision. It is critical to have
close supervision of this class of criminals to monitor these
offenders and prevent them from committing other crimes.
(k) California is the only state, of the number of states that
have enacted laws allowing involuntary civil commitments for persons
identified as sexually violent predators, that does not provide for
indeterminate commitments for those persons. California automatically
allows for a jury trial every two years irrespective of whether
there is any evidence to suggest or prove that the committed person
is no longer a sexually violent predator. As such, this act allows
California to protect the civil rights of those persons committed as
a sexually violent predator while at the same time protecting society
and the system from unnecessary or frivolous jury trial actions
where there is no competent evidence to suggest a change in the
committed person.
SEC. 3. Section 209 of the Penal Code is amended to read:
209. (a) Any person who seizes, confines, inveigles, entices,
decoys, abducts, conceals, kidnaps or carries away another person by
any means whatsoever with intent to hold or detain, or who holds or
detains, that person for ransom, reward or to commit extortion or to
exact from another person any money or valuable thing, or any person
who aids or abets any of those acts, is guilty of a felony. Upon
conviction thereof, a person shall be punished by imprisonment in the
state prison for life without possibility of parole in cases in
which any person subjected to any of those acts suffers death or
bodily harm, or is intentionally confined in a manner which exposes
that person to a substantial likelihood of death, or shall be
punished by imprisonment in the state prison for life with the
possibility of parole if the victim does not suffer death or bodily
harm.
(b) (1) Any person who kidnaps or carries away any individual to
commit robbery, rape, spousal rape, oral copulation, sodomy, 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.
(2) This subdivision shall only apply if the movement of the
victim is beyond that merely incidental to the commission of, and
increases the risk of harm to the victim over and above that
necessarily present in, the intended underlying offense.
(c) In all cases in which probation is granted, the court shall,
except in unusual cases where the interests of justice would best be
served by a lesser penalty, require as a condition of the probation
that the person be confined in the county jail for 12 months. If the
court grants probation without requiring the defendant to be confined
in the county jail for 12 months, it shall specify its reason or
reasons for imposing a lesser penalty.
(d) Subdivision (b) shall not be construed to supersede or affect
Section 667.61. A person may be charged with a violation of
subdivision (b) and Section 667.61. However, a person may not be
punished under subdivision (b) and Section 667.61 for the same act
that constitutes a violation of both subdivision (b) and Section
667.61.
SEC. 4. Section 220 of the Penal Code is amended to read:
220. (a) 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 be
punished by imprisonment in the state prison for two, four, or six
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. 5. Section 269 of the Penal Code is amended to read:
269. (a) 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:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Rape or sexual penetration, in concert, in violation of
Section 264.1.
(3) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(4) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) of Section 288a.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(b) Any person who violates this section is guilty of a felony and
shall be punished by imprisonment in the state prison for 15 years
to life.
(c) 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.
SEC. 6. Section 288.3 is added to the Penal Code, to read:
288.3. (a) Every person who contacts or communicates with a
minor, or attempts to contact or communicate with a minor, who knows
or reasonably should know that the person is a minor, with intent to
commit an offense specified in Section 207, 209, 261, 264.1, 273a,
286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving
the minor shall be punished by imprisonment in the state prison for
the term prescribed for an attempt to commit the intended offense.
(b) As used in this section, "contacts or communicates with" shall
include direct and indirect contact or communication that is
achieved personally or by use of an agent or agency, any print
medium, any postal service, a common carrier or communication common
carrier, any electronic communications system, or any
telecommunications, wire, computer, or radio communications device or
system.
(c) A person convicted of a violation of subdivision (a) who
previously has been convicted of a violation of subdivision (a) shall
be punished by an additional and consecutive term of imprisonment in
the state prison for five years.
SEC. 7. Section 290.3 of the Penal Code is amended to read:
290.3. (a) Every person who is convicted of any offense specified
in subdivision (a) of Section 290 shall, in addition to any
imprisonment or fine, or both, imposed for violation of the
underlying offense, be punished by a fine of three hundred dollars
($300) upon the first conviction or a fine of five hundred dollars
($500) upon the second and each subsequent conviction, unless the
court determines that the defendant does not have the ability to pay
the fine.
An amount equal to all fines collected pursuant to this
subdivision during the preceding month upon conviction of, or upon
the forfeiture of bail by, any person arrested for, or convicted of,
committing an offense specified in subdivision (a) of Section 290,
shall be transferred once a month by the county treasurer to the
Controller for deposit in the General Fund. Moneys deposited in the
General Fund pursuant to this subdivision shall be transferred by the
Controller as provided in subdivision (b).
(b) Except as provided in subdivision (d), out of the moneys
deposited pursuant to subdivision (a) as a result of second and
subsequent convictions of Section 290, one-third shall first be
transferred to the Department of Justice Sexual Habitual Offender
Fund, as provided in paragraph (1) of this subdivision. Out of the
remainder of all moneys deposited pursuant to subdivision (a), 50
percent shall be transferred to the Department of Justice Sexual
Habitual Offender Fund, as provided in paragraph (1), 25 percent
shall be transferred to the Department of Justice DNA Testing Fund,
as provided in paragraph (2), and 25 percent shall be allocated
equally to counties that maintain a local DNA testing laboratory, as
provided in paragraph (3).
(1) Those moneys so designated shall be transferred to the
Department of Justice Sexual Habitual Offender Fund created pursuant
to paragraph (5) of subdivision (b) of Section 11170 and, when
appropriated by the Legislature, shall be used for the purposes of
Chapter 9.5 (commencing with Section 13885) and Chapter 10
(commencing with Section 13890) of Title 6 of Part 4 for the purpose
of monitoring, apprehending, and prosecuting sexual habitual
offenders.
(2) Those moneys so designated shall be directed to the Department
of Justice and transferred to the Department of Justice DNA Testing
Fund, which is hereby created, for the exclusive purpose of testing
deoxyribonucleic acid (DNA) samples for law enforcement purposes. The
moneys in that fund shall be available for expenditure upon
appropriation by the Legislature.
(3) Those moneys so designated shall be allocated equally and
distributed quarterly to counties that maintain a local DNA testing
laboratory. Before making any allocations under this paragraph, the
Controller shall deduct the estimated costs that will be incurred to
set up and administer the payment of these funds to the counties. Any
funds allocated to a county pursuant to this paragraph shall be used
by that county for the exclusive purpose of testing DNA samples for
law enforcement purposes.
(c) Notwithstanding any other provision of this section, the
Department of Corrections and Rehabilitation may collect a fine
imposed pursuant to this section from a person convicted of a
violation of any offense listed in subdivision (a) of Section 290,
that results in incarceration in a facility under the jurisdiction of
the Department of Corrections and Rehabilitation. All moneys
collected by the Department of Corrections and Rehabilitation under
this subdivision shall be transferred, once a month, to the
Controller for deposit in the General Fund, as provided in
subdivision (a), for transfer by the Controller, as provided in
subdivision (b).
(d) An amount equal to one hundred dollars ($100) for every fine
imposed pursuant to subdivision (a) in excess of one hundred dollars
($100) shall be transferred to the Department of Corrections and
Rehabilitation to defray the cost of the global positioning system
used to monitor sex offender parolees, pursuant to Section 3000.07.
SEC. 8. Section 311.11 of the Penal Code is amended to read:
311.11. (a) Every person who knowingly possesses or controls any
matter, representation of information, data, or image, including, but
not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image
that contains or incorporates in any manner, any film or filmstrip,
the production of which involves the use of a person under the age of
18 years, knowing that the matter depicts a person under the age of
18 years personally engaging in or simulating sexual conduct, as
defined in subdivision (d) of Section 311.4, is guilty of a public
offense and shall be punished by imprisonment in the county jail for
up to one year or in the state prison, or by a fine not exceeding two
thousand five hundred dollars ($2,500), or by both the fine and
imprisonment.
(b) Every person who commits a violation of subdivision (a) and
who has been previously convicted of a violation of this section, an
offense described in subparagraph (A) of paragraph (2) of subdivision
(a) of Section 290, or an attempt to commit any of the offenses
listed in this subdivision, is guilty of a felony and shall be
punished by imprisonment for two, four, or six years.
(c) It is not necessary to prove that the matter is obscene in
order to establish a violation of this section.
(d) This section does not apply to drawings, figurines, statues,
or any film rated by the Motion Picture Association of America, nor
does it apply to live or recorded telephone messages when
transmitted, disseminated, or distributed as part of a commercial
transaction.
SEC. 9. Section 667.1 of the Penal Code is amended to read:
667.1. Notwithstanding subdivision (h) of Section 667, for all
offenses committed on or after the effective date of this act, all
references to existing statutes in subdivisions (c) to (g),
inclusive, of Section 667, are to those statutes as they existed on
the effective date of this act, including amendments made to those
statutes by the act enacted during the 2005-06 Regular Session that
amended this section.
SEC. 10. Section 667.5 of the Penal Code is amended to read:
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy , as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation, as defined in subdivision (c) or (d) of
section 288a.
(6) Lewd or lascivious acts, as defined in subdivision (a) or (b)
of Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7 or 12022.9 on or after July
1, 1977, or as specified prior to July 1, 1977, in Sections 213,
264, and 461, or any felony in which the defendant uses a firearm
which use has been charged and proved as provided in Section 12022.5
or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration, as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418.
The Legislature finds and declares that these specified crimes
merit special consideration when imposing a sentence to display
society's condemnation for these extraordinary crimes of violence
against the person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections and
Rehabilitation is incarcerated at a facility operated by the Division
of Juvenile Facilities, that incarceration shall be deemed to be a
term served in state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
SEC. 11. Section 667.51 of the Penal Code is amended to read:
667.51. (a) Any person who is convicted of violating Section 288
or 288.5 shall receive a five-year enhancement for a prior conviction
of an offense specified in subdivision (b).
(b) Section 261, 262, 264.1, 269, 285, 286, 288, 288a, 288.5, or
289, or any offense committed in another jurisdiction that includes
all of the elements of any of the offenses specified in this
subdivision.
(c)
A violation of Section 288 or 288.5 by a person who has been
previously convicted two or more times of an offense specified in
subdivision (b) shall be punished by imprisonment in the state prison
for 15 years to life.
SEC. 12. Section 667.6 of the Penal Code is amended to read:
667.6. (a) Any person who is convicted of an offense specified in
subdivision (e) and who has been convicted previously of any of
those offenses shall receive a five-year enhancement for each of
those prior convictions.
(b) Any person who is convicted of an offense specified in
subdivision (e) and who has served two or more prior prison terms as
defined in Section 667.5 for any of those offenses shall receive a
10-year enhancement for each of those prior terms.
(c) In lieu of the term provided in Section 1170.1, a full,
separate, and consecutive term may be imposed for each violation of
an offense specified in subdivision (e) if the crimes involved the
same victim on the same occasion. A term may be imposed
consecutively pursuant to this subdivision if a person is convicted
of at least one offense specified in subdivision (e). If the term is
imposed consecutively pursuant to this subdivision, it shall be
served consecutively to any other term of imprisonment, and shall
commence from the time the person otherwise would have been released
from imprisonment. The term shall not be included in any
determination pursuant to Section 1170.1. Any other term imposed
subsequent to that term shall not be merged therein but shall
commence at the time the person otherwise would have been released
from prison.
(d) A full, separate, and consecutive term shall be imposed for
each violation of an offense specified in subdivision (e) if the
crimes involve separate victims or involve the same victim on
separate occasions.
In determining whether crimes against a single victim were
committed on separate occasions under this subdivision, the court
shall consider whether, between the commission of one sex crime and
another, the defendant had a reasonable opportunity to reflect upon
his or her actions and nevertheless resumed sexually assaultive
behavior. Neither the duration of time between crimes, nor whether or
not the defendant lost or abandoned his or her opportunity to
attack, shall be, in and of itself, determinative on the issue of
whether the crimes in question occurred on separate occasions.
The term shall be served consecutively to any other term of
imprisonment and shall commence from the time the person otherwise
would have been released from imprisonment. The term shall not be
included in any determination pursuant to Section 1170.1. Any other
term imposed subsequent to that term shall not be merged therein but
shall commence at the time the person otherwise would have been
released from prison.
(e) This section shall apply to the following offenses:
(1) Rape, in violation of paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261.
(2) Spousal rape, in violation of paragraph (1), (4), or (5) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d) or (k), of Section 286.
(5) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) or (k), of Section 288a.
(8) Sexual penetration, in violation of subdivision (a) or (g) of
Section 289.
(9) As a present offense under subdivision (c) or (d), assault
with intent to commit a specified sexual offense, in violation of
Section 220.
(10) As a prior conviction under subdivision (a) or (b), an
offense committed in another jurisdiction that includes all of the
elements of an offense specified in this subdivision.
(f) In addition to any enhancement imposed pursuant to subdivision
(a) or (b), the court may also impose a fine not to exceed twenty
thousand dollars ($20,000) for anyone sentenced under those
provisions. The fine imposed and collected pursuant to this
subdivision 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 established pursuant to Section 13837.
(g) If the court orders a fine to be imposed pursuant to this
section, 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.
SEC. 13. Section 667.61 of the Penal Code is amended to read:
667.61. (a) 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), 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.
(4) A 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 Section 286.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) of Section 288a.
(8) A 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.
(e) The following circumstances shall apply to the offenses
specified in subdivision (c):
(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 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.
(4) The defendant personally used a dangerous or deadly weapon or
firearm in the commission of the present offense in violation of
Section 12022, 12022.3, 12022.5, or 12022.53.
(5) The defendant has been convicted in the present case or cases
of committing an offense specified in subdivision (c) against more
than one victim.
(6) The defendant engaged in the tying or binding of the victim or
another person in the commission of the present offense.
(7) The defendant administered a controlled substance to the
victim in the commission of the present offense in violation of
Section 12022.75.
(8) 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) or (e) that are required for the punishment provided
in subdivision (a) or (b) 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) or (b), 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 may be imposed in addition to the punishment
provided by this section. However, if any additional circumstance or
circumstances specified in subdivision (d) or (e) have been pled and
proved, the minimum number of circumstances shall be used as the
basis for imposing the term provided in subdivision (a), and any
other additional circumstance or circumstances shall be used to
impose any punishment or enhancement authorized under any other
provision of law.
(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) or (e) 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), 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) The penalties provided in this section shall apply only if
the existence of any circumstance specified in subdivision (d) or (e)
is alleged in the accusatory pleading pursuant to this section and
either admitted by the defendant in open court or found to be true by
the trier of fact.
SEC. 14. Section 667.71 of the Penal Code is amended to read:
667.71. (a) For the purpose of this section, a habitual sexual
offender is a person who has been previously convicted of one or more
of the offenses specified in subdivision (c) and who is convicted in
the present proceeding of one of those offenses.
(b) A habitual sexual offender shall be punished by imprisonment
in the state prison for 25 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.
(4) A lewd or lascivious act, in violation of subdivision (a) or
(b) of Section 288.
(5) Sexual penetration, in violation of subdivision (a) or (j) of
Section 289.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Sodomy, in violation of subdivision (c) or (d) of Section 286.
(8) Oral copulation, in violation of subdivision (c) or (d) of
Section 288a .
(9) Kidnapping, in violation of subdivision (b) of Section 207.
(10) Kidnapping, in violation of former subdivision (d) of Section
208 (kidnapping to commit specified sex offenses).
(11) Kidnapping in violation of subdivision (b) of Section 209
with the intent to commit a specified sexual offense.
(12) Aggravated sexual assault of a child, in violation of Section
269.
(13) An offense committed in another jurisdiction that includes
all of the elements of an offense specified in this subdivision.
(d) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any prior conviction specified in subdivision (c) for any person who
is subject to punishment under this section.
(e) 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.
(f) This section shall apply only if the defendant's status as a
habitual sexual offender is alleged in the accusatory pleading, and
either admitted by the defendant in open court, or found to be true
by the trier of fact.
SEC. 15. Section 1170.125 of the Penal Code is amended to read:
1170.125. Notwithstanding Section 2 of Proposition 184, as
adopted at the November 8, 1994 General Election, for all offenses
committed on or after the effective date of this act, all references
to existing statutes in Section 1170.12 are to those statutes as they
existed on the effective date of this act, including amendments made
to those statutes by the act enacted during the 2005-06 Regular
Session that amended this section.
SEC. 16. Section 1203.06 of the Penal Code is amended to read:
1203.06. (a) Notwithstanding any other provision of 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 this section be stricken pursuant to Section
1385 for, any of the following persons:
(1) Any person who personally used a firearm during the commission
or attempted commission of any of the following crimes:
(A) Murder.
(B) Robbery, in violation of Section 211.
(C) Kidnapping, in violation of Section 207, 209, or 209.5.
(D) A lewd or lascivious act, in violation of Section 288.
(E) Burglary of the first degree, as defined in Section 460.
(F) Rape, in violation of Section 261, 262, or 264.1.
(G) Assault with intent to commit a specified sexual offense, in
violation of Section 220.
(H) Escape, in violation of Section 4530 or 4532.
(I) Carjacking, in violation of Section 215.
(J) Aggravated mayhem in violation of Section 205.
(K) Torture, in violation of Section 206.
(L) Continuous sexual abuse of a child, in violation of Section
288.5.
(M) A felony violation of Section 136.1 or 137.
(N) Sodomy, in violation of Section 286.
(O) Oral Copulation, in violation of Section 288a.
(P) Sexual penetration, in violation of Section 289 or 264.1.
(Q) Aggravated sexual assault of a child, in violation of Section
269.
(2) Any person previously convicted of a felony specified in
paragraph (1), or assault with intent to commit murder under former
Section 217, who is convicted of a subsequent felony and who was
personally armed with a firearm at any time during its commission or
attempted commission or was unlawfully armed with a firearm at the
time of his or her arrest for the subsequent felony.
(3) Aggravated arson, in violation of Section 451.5.
(b) (1) The existence of any fact that would make a person
ineligible for probation under subdivision (a) shall be alleged in
the accusatory pleading, and either admitted by the defendant in open
court, or found to be true by the trier of fact.
(2)
As used in subdivision (a), "used a firearm" means to display a
firearm in a menacing manner, to intentionally fire it, to
intentionally strike or hit a human being with it, or to use it in
any manner that qualifies under Section 12022.5.
(3) As used in subdivision (a), "armed with a firearm" means to
knowingly carry or have available for use a firearm as a means of
offense or defense.
SEC. 17. Section 1203.065 of the Penal Code is amended to read:
1203.065. (a) 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 convicted
of violating paragraph (2) or (6) of subdivision (a) of Section 261,
Section 264.1, 266h, 266i, 266j, or 269, or paragraph (2) or (3) of
subdivision (c) or subdivision (d) of Section 286 or 288a, or
subdivision (a) of Section 289, or subdivision (c) of Section 311.4.
(b) (1) Except in unusual cases where the interests of justice
would best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of violating
paragraph (7) of subdivision (a) of Section 261, subdivision (k) of
Section 286, subdivision (k) of Section 288a, or Section 220 for
assault with intent to commit a specified sexual offense.
(2) When probation is granted, the court shall specify on the
record and shall enter on the minutes the circumstances indicating
that the interests of justice would best be served by the
disposition.
SEC. 18. Section 1203.075 of the Penal Code is amended to read:
1203.075. (a) Notwithstanding any other provision of 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 this section be stricken pursuant to Section
1385 for, any person who personally inflicts great bodily injury, as
defined in Section 12022.7, on the person of another in the
commission or attempted commission of any of the following crimes:
(1) Murder.
(2) Robbery, in violation of Section 211.
(3) Kidnapping, in violation of Section 207, 209, or 209.5.
(4) A lewd or lascivious act, in violation of Section 288.
(5) Burglary of the first degree, as defined in Section 460.
(6) Rape, in violation of Section 261, 262, or 264.1.
(7) Assault with intent to commit a specified sexual offense, in
violation of Section 220.
(8) Escape, in violation of Section 4530 or 4532.
(9) Sexual penetration, in violation of subdivision (a) of Section
264.1 or 289.
(10) Sodomy, in violation of Section 286.
(11) Oral copulation, in violation of Section 288a.
(12) Carjacking, in violation of Section 215.
(13) Continuous sexual abuse of a child, in violation of Section
288.5.
(14) Aggravated sexual assault of a child, in violation of Section
269.
(b) The existence of any fact that would make a person ineligible
for probation under subdivision (a) shall be alleged in the
accusatory pleading, and either admitted by the defendant in open
court, or found to be true by trier of fact.
SEC. 19. 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 supervision of and surveillance of parolees,
including 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, as provided in this section.
(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 shall be released on
parole for a period not exceeding five years, unless in either case
the parole authority for good cause waives parole and discharges the
inmate from the custody of the department.
(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 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), in the case of any
offense for which the inmate has received a life sentence pursuant to
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, an inmate subject to three
years on parole may not 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, an inmate subject to five
years on parole may not 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, an inmate subject to 10
years on parole may not 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 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 an inmate make payments on his or her
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 inmate released on parole rests with the Board
of Parole Hearings, except for any escaped state inmate or any state
inmate 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 subparagraph (C) of paragraph
(1) of subdivision (a) of Section 290 who are on parole to engage
them in treatment.
SEC. 20. Section 3000.07 is added to the Penal Code, to read:
3000.07. (a) Every person who has been convicted for any felony
violation of a registerable sex offense described in subparagraph (A)
of paragraph (2) of subdivision (a) of Section 290, or any attempt
to commit any of those offenses, who is released on parole pursuant
to Section 3000 or 3000.1, shall be monitored by a global positioning
system for the term of his or her parole, or for the duration or any
remaining part thereof, whichever period of time is less.
(b) A parolee shall be required to pay for the costs associated
with the monitoring by a global positioning system. However, the
Department of Corrections and Rehabilitation shall waive any or all
of that payment upon a finding of an inability to pay. The department
shall consider any remaining amounts the parolee has been ordered to
pay in fines, assessments and restitution fines, fees, and orders,
and shall give priority to the payment of those items before
requiring that the parolee pay for the global positioning system
monitoring. No inmate shall be denied parole on the basis of his or
her inability to pay for those monitoring costs.
SEC. 21. Section 3001 of the Penal Code is amended to read:
3001. (a) Notwithstanding any other provision of law, when any
person referred to in paragraph (1) of subdivision (b) of Section
3000 who was not imprisoned for committing a violent felony, as
defined in subdivision (c) of Section 667.5, has been released on
parole from the state prison, and has been on parole continuously for
one year since release from confinement, within 30 days, that person
shall be discharged from parole, unless the Department of
Corrections and Rehabilitation recommends to the Board of Parole
Hearings that the person be retained on parole and the board, for
good cause, determines that the person will be retained.
Notwithstanding any other provision of law, when any person referred
to in paragraph (1) of subdivision (b) of Section 3000 who was
imprisoned for committing a violent felony, as defined in subdivision
(c) of Section 667.5, has been released on parole from the state
prison for a period not exceeding three years and has been on parole
continuously for two years since release from confinement, or has
been released on parole from the state prison for a period not
exceeding five years and has been on parole continuously for three
years since release from confinement, the department shall discharge,
within 30 days, that person from parole, unless the department
recommends to the board that the person be retained on parole and the
board, for good cause, determines that the person will be retained.
The board shall make a written record of its determination and the
department shall transmit a copy thereof to the parolee.
(b) Notwithstanding any other provision of law, when any person
referred to in paragraph (2) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for three years since release from confinement, the
board shall discharge, within 30 days, the 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 the department shall transmit a copy thereof to the
parolee.
(c) Notwithstanding any other provision of law, when any person
referred to in paragraph (3) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for six years since release from confinement, the board
shall discharge, within 30 days, the 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 the department shall transmit a copy thereof to the parolee.
(d) In the event of a retention on parole, the parolee shall be
entitled to a review by the parole authority each year thereafter
until the maximum statutory period of parole has expired.
(e) The amendments to this section made during the 1987-88
Regular Session of the Legislature shall only be applied
prospectively and shall not extend the parole period for any person
whose eligibility for discharge from parole was fixed as of the
effective date of those amendments.
SEC. 22. Section 3003 of the Penal Code is amended to read:
3003. (a) Except as otherwise provided in this section, an inmate
who is released on parole shall be returned to the county that was
the last legal residence of the inmate prior to his or her
incarceration.
For purposes of this subdivision, "last legal residence" shall not
be construed to mean the county wherein the inmate committed an
offense while confined in a state prison or local jail facility or
while confined for treatment in a state hospital.
(b) Notwithstanding subdivision (a), an inmate may be returned to
another county if that would be in the best interests of the public.
If the Board of Parole
Hearings setting the conditions of parole for inmates sentenced
pursuant to subdivision (b) of Section 1168, as determined by the
parole consideration panel, or the Department of Corrections and
Rehabilitation setting the conditions of parole for inmates sentenced
pursuant to Section 1170, decides on a return to another county, it
shall place its reasons in writing in the parolee's permanent record
and include these reasons in the notice to the sheriff or chief of
police pursuant to Section 3058.6. In making its decision, the
paroling authority shall consider, among others, the following
factors, giving the greatest weight to the protection of the victim
and the safety of the community:
(1) The need to protect the life or safety of a victim, the
parolee, a witness, or any other person.
(2) Public concern that would reduce the chance that the inmate's
parole would be successfully completed.
(3) The verified existence of a work offer, or an educational or
vocational training program.
(4) The existence of family in another county with whom the inmate
has maintained strong ties and whose support would increase the
chance that the inmate's parole would be successfully completed.
(5) The lack of necessary outpatient treatment programs for
parolees receiving treatment pursuant to Section 2960.
(c) The Department of Corrections and Rehabilitation, in
determining an out-of-county commitment, shall give priority to the
safety of the community and any witnesses and victims.
(d) In making its decision about an inmate who participated in a
joint venture program pursuant to Article 1.5 (commencing with
Section 2717.1) of Chapter 5, the parole authority shall give serious
consideration to releasing him or her to the county where the joint
venture program employer is located if that employer states to the
paroling authority that he or she intends to employ the inmate upon
release.
(e) (1) The following information, if available, shall be released
by the Department of Corrections and Rehabilitation to local law
enforcement agencies regarding a paroled inmate who is released in
their jurisdictions:
(A) Last, first, and middle name.
(B) Birth date.
(C) Sex, race, height, weight, and hair and eye color.
(D) Date of parole and discharge.
(E) Registration status, if the inmate is required to register as
a result of a controlled substance, sex, or arson offense.
(F) California Criminal Information Number, FBI number, social
security number, and driver's license number.
(G) County of commitment.
(H) A description of scars, marks, and tattoos on the inmate.
(I) Offense or offenses for which the inmate was convicted that
resulted in parole in this instance.
(J) Address, including all of the following information:
(i) Street name and number. Post office box numbers are not
acceptable for purposes of this subparagraph.
(ii) City and ZIP Code.
(iii) Date that the address provided pursuant to this subparagraph
was proposed to be effective.
(K) Contact officer and unit, including all of the following
information:
(i) Name and telephone number of each contact officer.
(ii) Contact unit type of each contact officer such as units
responsible for parole, registration, or county probation.
(L) A digitized image of the photograph and at least a single
digit fingerprint of the parolee.
(M) A geographic coordinate for the parolee's residence location
for use with a Geographical Information System (GIS) or comparable
computer program.
(2) The information required by this subdivision shall come from
the statewide parolee database. The information obtained from each
source shall be based on the same timeframe.
(3) All of the information required by this subdivision shall be
provided utilizing a computer-to-computer transfer in a format usable
by a desktop computer system. The transfer of this information shall
be continually available to local law enforcement agencies upon
request.
(4) The unauthorized release or receipt of the information
described in this subdivision is a violation of Section 11143.
(f) Notwithstanding any other provision of law, an inmate who is
released on parole shall not be returned to a location within 35
miles of the actual residence of a victim of, or a witness to, a
violent felony as defined in paragraphs (1) to (7), inclusive, of
subdivision (c) of Section 667.5 or a felony in which the defendant
inflicts great bodily injury on any person other than an accomplice
that has been charged and proved as provided for in Section 12022.53,
12022.7, or 12022.9, if the victim or witness has requested
additional distance in the placement of the inmate on parole, and if
the Board of Parole Hearings or the Department of Corrections and
Rehabilitation finds that there is a need to protect the life,
safety, or well-being of a victim or witness.
(g)
Notwithstanding any other law, an inmate who is released on
parole for an offense involving stalking shall not be returned to a
location within 35 miles of the victim's actual residence or place of
employment if the victim or witness has requested additional
distance in the placement of the inmate on parole, and if the Board
of Parole Hearings or the Department of Corrections and
Rehabilitation finds that there is a need to protect the life,
safety, or well-being of the victim.
(h) The authority shall give consideration to the equitable
distribution of parolees and the proportion of out-of-county
commitments from a county compared to the number of commitments from
that county when making parole decisions.
(i) An inmate may be paroled to another state pursuant to any
other law.
(j) (1) Except as provided in paragraph (2), the Department of
Corrections and Rehabilitation shall be the agency primarily
responsible for, and shall have control over, the program, resources,
and staff implementing the Law Enforcement Automated Data System
(LEADS) in conformance with subdivision (e).
(2) Notwithstanding paragraph (1), the Department of Justice shall
be the agency primarily responsible for the proper release of
information under LEADS that relates to fingerprint cards.
SEC. 23. Section 3003.5 of the Penal Code is amended to read:
3003.5. (a) Notwithstanding any other provision of law, when a
person is released on parole after having served a term of
imprisonment in state prison for any offense for which registration
is required pursuant to Section 290, that person may not, during the
period of parole, reside in any single family dwelling with any other
person also required to register pursuant to Section 290, unless
those persons are legally related by blood, marriage, or adoption.
For purposes of this section, "single family dwelling" shall not
include a residential facility which serves six or fewer persons.
(b) Notwithstanding any other provision of law, it is unlawful for
any person for whom registration is required pursuant to Section 290
to reside within 2000 feet of any public or private school, or park
where children regularly gather.
(c) Nothing in this section shall prohibit municipal jurisdictions
from enacting local ordinances that further restrict the residency
of any person for whom registration is required pursuant to Section
290.
SEC. 24. Section 3004 of the Penal Code is amended to read:
3004. (a) Notwithstanding any other law, the parole authority may
require, as a condition of release on parole or reinstatement on
parole, or as an intermediate sanction in lieu of return to prison,
that an inmate or parolee agree in writing to the use of electronic
monitoring or supervising devices for the purpose of helping to
verify his or her compliance with all other conditions of parole. The
devices shall not be used to eavesdrop or record any conversation,
except a conversation between the parolee and the agent supervising
the parolee which is to be used solely for the purposes of voice
identification.
(b) Every person who has been convicted for any felony violation
of a registerable sex offense described in subparagraph (A) of
paragraph (2) of subdivision (a) of Section 290, or any attempt to
commit any of those offenses, who is discharged from parole shall be
monitored by a global positioning system for life.
(c) A person subject to subdivision (b) shall be required to pay
for the costs associated with the monitoring by a global positioning
system. However, the Department of Corrections and Rehabilitation
shall waive any or all of that payment upon a finding of an inability
to pay. The department shall consider any remaining amounts the
person has been ordered to pay in fines, assessments and restitution
fines, fees, and orders, and shall give priority to the payment of
those items before requiring that the person pay for the global
positioning monitoring.
SEC. 25. Section 12022.75 of the Penal Code is amended to read:
12022.75. (a) Except as provided in subdivision (b), any person
who, for the purpose of committing a felony, administers by
injection, inhalation, ingestion, or any other means, any controlled
substance listed in Section 11054, 11055, 11056, 11057, or 11058 of
the Health and Safety Code, against the victim's will by means of
force, violence, or fear of immediate and unlawful bodily injury to
the victim or another person, shall, in addition and consecutive to
the penalty provided for the felony or attempted felony of which he
or she has been convicted, be punished by an additional term of three
years.
(b) (1) Any person who, in the commission or attempted commission
of any offense specified in paragraph (2), administers any controlled
substance listed in Section 11054, 11055, 11056, 11057, or 11058 of
the Health and Safety Code to the victim shall be punished by an
additional and consecutive term of imprisonment in the state prison
for five years.
(2) This subdivision shall apply to the following offenses:
(A) Rape, in violation of paragraph (3) or (4) of subdivision (a)
of Section 261.
(B) Sodomy, in violation of subdivision (f) or (i) of Section 286.
(C) Oral copulation, in violation of subdivision (f) or (i) of
Section 288a.
(D) Sexual penetration, in violation of subdivision (d) or (e) of
Section 289.
(E) Any offense specified in subdivision (c) of Section 667.61.
SEC. 26. Section 6600 of the Welfare and Institutions Code is
amended to read:
6600. As used in this article, the following terms have the
following meanings:
(a) (1) "Sexually violent predator" means a person who has been
convicted of a sexually violent offense against one or more victims
and who has a diagnosed mental disorder that makes the person a
danger to the health and safety of others in that it is likely that
he or she will engage in sexually violent criminal behavior.
(2) For purposes of this subdivision any of the following shall be
considered a conviction for a sexually violent offense:
(A) A prior or current conviction that resulted in a determinate
prison sentence for an offense described in subdivision (b).
(B) A conviction for an offense described in subdivision (b) that
was committed prior to July 1, 1977, and that resulted in an
indeterminate prison sentence.
(C) A prior conviction in another jurisdiction for an offense that
includes all of the elements of an offense described in subdivision
(b).
(D) A conviction for an offense under a predecessor statute that
includes all of the elements of an offense described in subdivision
(b).
(E) A prior conviction for which the inmate received a grant of
probation for an offense described in subdivision (b).
(F) A prior finding of not guilty by reason of insanity for an
offense described in subdivision (b).
(G) A conviction resulting in a finding that the person was a
mentally disordered sex offender.
(H) A prior conviction for an offense described in subdivision (b)
for which the person was committed to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities, pursuant to
Section 1731.5.
(I) A prior conviction for an offense described in subdivision (b)
that resulted in an indeterminate prison sentence.
(3) Conviction of one or more of the crimes enumerated in this
section shall constitute evidence that may support a court or jury
determination that a person is a sexually violent predator, but shall
not be the sole basis for the determination. The existence of any
prior convictions may be shown with documentary evidence. The details
underlying the commission of an offense that led to a prior
conviction, including a predatory relationship with the victim, may
be shown by documentary evidence, including, but not limited to,
preliminary hearing transcripts, trial transcripts, probation and
sentencing reports, and evaluations by the State Department of Mental
Health. Jurors shall be admonished that they may not find a person a
sexually violent predator based on prior offenses absent relevant
evidence of a currently diagnosed mental disorder that makes the
person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal
behavior.
(4) The provisions of this section shall apply to any person
against whom proceedings were initiated for commitment as a sexually
violent predator on or after January 1, 1996.
(b) "Sexually violent offense" means the following acts when
committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or
threatening to retaliate in the future against the victim or any
other person, and that are committed on, before, or after the
effective date of this article and result in a conviction or a
finding of not guilty by reason of insanity, as defined in
subdivision (a): a felony violation of Section 261, 262, 264.1, 269,
286, 288, 288a, 288.5 or 289 of the Penal Code, or any felony
violation of Section 207, 209, or 220 of the Penal Code, committed
with the intent to commit a violation of Section 261, 262, 264.1,
269, 288, 288a, or 289 of the Penal Code.
(c) "Diagnosed mental disorder" includes a congenital or acquired
condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a
degree constituting the person a menace to the health and safety of
others.
(d) "Danger to the health and safety of others" does not require
proof of a recent overt act while the offender is in custody.
(e) "Predatory" means an act is directed toward a stranger, 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.
(f) "Recent overt act" means any criminal act that manifests a
likelihood that the actor may engage in sexually violent predatory
criminal behavior.
(g) Notwithstanding any other provision of law and for purposes of
this section, a prior juvenile adjudication of a sexually violent
offense may constitute a prior conviction for which the person
received a determinate term if all of the following apply:
(1) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
(2) The prior offense is a sexually violent offense as specified
in subdivision (b).
(3) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 because of the person's commission of the
offense giving rise to the juvenile court adjudication.
(4) The juvenile was committed to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities for the sexually
violent offense.
(h) A minor adjudged a ward of the court for commission of an
offense that is defined as a sexually violent offense shall be
entitled to specific treatment as a sexual offender. The failure of a
minor to receive that treatment shall not constitute a defense or
bar to a determination that any person is a sexually violent predator
within the meaning of this article.
SEC. 27. Section 6600.1 of the Welfare and Institutions Code is
amended to read:
6600.1. If the victim of an underlying offense that is specified
in subdivision (b) of Section 6600 is a child under the age of 14,
the offense shall constitute a "sexually violent offense" for
purposes of Section 6600.
SEC. 28. Section 6601 of the Welfare and Institutions Code is
amended to read:
6601. (a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who is
in custody under the jurisdiction of the department, and who is
either serving a determinate prison sentence or whose parole has been
revoked, may be a sexually violent predator, the secretary shall, at
least six months prior to that individual's scheduled date for
release from prison, refer the person for evaluation in accordance
with this section. However, if the inmate was received by the
department with less than nine months of his or her sentence to
serve, or if the inmate's release date is modified by judicial or
administrative action, the secretary may refer the person for
evaluation in accordance with this section at a date that is less
than six months prior to the inmate's scheduled release date.
(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison term, parole
revocation term, or a hold placed pursuant to Section 6601.3, at the
time the petition is filed. A petition shall not be dismissed on the
basis of a later judicial or administrative determination that the
individual's custody was unlawful, if the unlawful custody was the
result of a good faith mistake of fact or law. This paragraph shall
apply to any petition filed on or after January 1, 1996.
(b) The person shall be screened by the Department of Corrections
and Rehabilitation and the Board of Parole Hearings based on whether
the person has committed a sexually violent predatory offense and on
a review of the person's social, criminal, and institutional history.
This screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of Mental Health for a full evaluation of
whether the person meets the criteria in Section 6600.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as
various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder.
(d) Pursuant to subdivision (c), the person shall be evaluated by
two practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health. If both evaluators concur that the person
has a diagnosed mental disorder so that he or she is likely to engage
in acts of sexual violence without appropriate treatment and
custody, the Director of Mental Health shall forward a request for a
petition for commitment under Section 6602 to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (d), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
two independent professionals selected in accordance with subdivision
(g).
(f) If an examination by independent professionals pursuant to
subdivision (e) is conducted, a petition to request commitment under
this article shall only be filed if both independent professionals
who evaluate the person pursuant to subdivision (e) concur that the
person meets the criteria for commitment specified in subdivision
(d). The professionals selected to evaluate the person pursuant to
subdivision (g) shall inform the person that the purpose of their
examination is not treatment but to determine if the person meets
certain criteria to be involuntarily committed pursuant to this
article. It is not required that the person appreciate or understand
that information.
(g) Any independent professional who is designated by the
Secretary of the Department of Corrections and Rehabilitation or the
Director of Mental Health for purposes of this section shall not be a
state government employee, shall have at least five years of
experience in the diagnosis and treatment of mental disorders, and
shall include psychiatrists and licensed psychologists who have a
doctoral degree in psychology. The requirements set forth in this
section also shall apply to any professionals appointed by the court
to evaluate the person for purposes of any other proceedings under
this article.
(h) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment in the superior court.
(i) If the county's designated counsel concurs with the
recommendation, a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of the
offense for which he or she was committed to the jurisdiction of the
Department of Corrections and Rehabilitation. The petition shall be
filed, and the proceedings shall be handled, by either the district
attorney or the county counsel of that county. The county board of
supervisors shall designate either the district attorney or the
county counsel to assume responsibility for proceedings under this
article.
(j) The time limits set forth in this section shall not apply
during the first year that this article is operative.
(k) If the person is otherwise subject to parole, a finding or
placement made pursuant to this article shall toll the term of parole
pursuant to Article 1 (commencing with Section 3000) of Chapter 8 of
Title 1 of Part 3 of the Penal Code.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health of its decision regarding the filing of a petition
for commitment within 15 days of making that decision.
SEC. 29. Section 6604 of the Welfare and Institutions Code is
amended to read:
6604. The court or jury shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator. If the
court or jury is not satisfied beyond a reasonable doubt that the
person is a sexually violent predator, the court shall direct that
the person be released at the conclusion of the term for which he or
she was initially sentenced, or that the person be unconditionally
released at the end of parole, whichever is applicable. If the court
or jury determines that the person is a sexually violent predator,
the person shall be committed for an indeterminate term to the
custody of the State Department of Mental Health for appropriate
treatment and confinement in a secure facility designated by the
Director of Mental Health. The facility shall be located on the
grounds of an institution under the jurisdiction of the Department of
Corrections and Rehabilitation.
SEC. 30. Section 6604.1 of the Welfare and Institutions Code is
amended to read:
6604.1. (a) The indeterminate term of commitment provided for in
Section 6604 shall commence on the date upon which the court issues
the initial order of commitment pursuant to that section.
(b) The person shall be evaluated by two practicing psychologists
or psychiatrists, or by one practicing psychologist and one
practicing psychiatrist, designated by the State Department of Mental
Health. The provisions of subdivisions (c) to (i), inclusive, of
Section 6601 shall apply to evaluations performed for purposes of
extended commitments. The rights, requirements, and procedures set
forth in Section 6603 shall apply to all commitment proceedings.
SEC. 31. Section 6605 of the Welfare and Institutions Code is
amended to read:
6605. (a) A person found to be a sexually violent predator and
committed to the custody of the State Department of Mental Health
shall have a current examination of his or her mental condition made
at least once every year. The annual report shall include
consideration of whether the committed person currently meets the
definition of a sexually violent predator and whether conditional
release to a less restrictive alternative or an unconditional release
is in the best interest of the person, and conditions can be imposed
that would adequately protect the community. The Department of
Mental Health shall file this periodic report with the court that
committed the person under this section. The report shall be in the
form of a declaration and shall be prepared by a professionally
qualified person. A copy of the report shall be served on the
prosecuting agency involved in the initial commitment and upon the
committed person. The person may retain, or if he or she is indigent
and so requests, the court may appoint, a qualified expert or
professional person to examine him or her, and the expert or
professional person shall have access to all records concerning the
person.
(b) If the Department of Mental Health determines that either: (1)
the person's condition has so changed that the person no longer
meets the definition of a sexually violent predator, or (2)
conditional release to a less restrictive
alternative is in the best interest of the
person and conditions can be imposed that adequately protect the
community, the director shall authorize the person to petition the
court for conditional release to a less restrictive alternative or
for an unconditional discharge. The petition shall be filed with the
court and served upon the prosecuting agency responsible for the
initial commitment. The court, upon receipt of the petition for
conditional release to a less restrictive alternative or
unconditional discharge, shall order a show cause hearing at which
the court can consider the petition and any accompanying
documentation provided by the medical director, the prosecuting
attorney or the committed person.
(c) If the court at the show cause hearing determines that
probable cause exists to believe that the committed person's
diagnosed mental disorder has so changed that he or she is not a
danger to the health and safety of others and is not likely to engage
in sexually violent criminal behavior if discharged, then the court
shall set a hearing on the issue.
(d) At the hearing, the committed person shall have the right to
be present and shall be entitled to the benefit of all constitutional
protections that were afforded to him or her at the initial
commitment proceeding. The attorney designated by the county pursuant
to subdivision (i) of Section 6601 shall represent the state and
shall have the right to demand a jury trial and to have the committed
person evaluated by experts chosen by the state. The committed
person also shall have the right to demand a jury trial and to have
experts evaluate him or her on his or her behalf. The court shall
appoint an expert if the person is indigent and requests an
appointment. The burden of proof at the hearing shall be on the state
to prove beyond a reasonable doubt that the committed person's
diagnosed mental disorder remains such that he or she is a danger to
the health and safety of others and is likely to engage in sexually
violent criminal behavior if discharged.
(e) If the court or jury rules against the committed person at the
hearing conducted pursuant to subdivision (d), the term of
commitment of the person shall run for an indeterminate period from
the date of this ruling. If the court or jury rules for the committed
person, he or she shall be unconditionally released and
unconditionally discharged.
(f) In the event that the State Department of Mental Health has
reason to believe that a person committed to it as a sexually violent
predator is no longer a sexually violent predator, it shall seek
judicial review of the person's commitment pursuant to the procedures
set forth in Section 7250 in the superior court from which the
commitment was made. If the superior court determines that the person
is no longer a sexually violent predator, he or she shall be
unconditionally released and unconditionally discharged.
SEC. 32. Section 6608 of the Welfare and Institutions Code is
amended to read:
6608. (a) Nothing in this article shall prohibit the person who
has been committed as a sexually violent predator from petitioning
the court for conditional release or an unconditional discharge
without the recommendation or concurrence of the Director of Mental
Health. If a person has previously filed a petition for conditional
release without the concurrence of the director and the court
determined, either upon review of the petition or following a
hearing, that the petition was frivolous or that the committed person'
s condition had not so changed that he or she would not be a danger
to others in that it is not likely that he or she will engage in
sexually violent criminal behavior if placed under supervision and
treatment in the community, then the court shall deny the subsequent
petition unless it contains facts upon which a court could find that
the condition of the committed person had so changed that a hearing
was warranted. Upon receipt of a first or subsequent petition from a
committed person without the concurrence of the director, the court
shall endeavor whenever possible to review the petition and determine
if it is based upon frivolous grounds and, if so, shall deny the
petition without a hearing. The person petitioning for conditional
release and unconditional discharge under this subdivision shall be
entitled to assistance of counsel.
(b) The court shall give notice of the hearing date to the
attorney designated in subdivision (i) of Section 6601, the retained
or appointed attorney for the committed person, and the Director of
Mental Health at least 15 court days before the hearing date.
(c) No hearing upon the petition shall be held until the person
who is committed has been under commitment for confinement and care
in a facility designated by the Director of Mental Health for not
less than one year from the date of the order of commitment.
(d) The court shall hold a hearing to determine whether the person
committed would be a danger to the health and safety of others in
that it is likely that he or she will engage in sexually violent
criminal behavior due to his or her diagnosed mental disorder if
under supervision and treatment in the community. If the court at the
hearing determines that the committed person would not be a danger
to others due to his or her diagnosed mental disorder while under
supervision and treatment in the community, the court shall order the
committed person placed with an appropriate forensic conditional
release program operated by the state for one year. A substantial
portion of the state-operated forensic conditional release program
shall include outpatient supervision and treatment. The court shall
retain jurisdiction of the person throughout the course of the
program. At the end of one year, the court shall hold a hearing to
determine if the person should be unconditionally released from
commitment on the basis that, by reason of a diagnosed mental
disorder, he or she is not a danger to the health and safety of
others in that it is not likely that he or she will engage in
sexually violent criminal behavior. The court shall not make this
determination until the person has completed at least one year in the
state-operated forensic conditional release program. The court shall
notify the Director of Mental Health of the hearing date.
(e) Before placing a committed person in a state-operated forensic
conditional release program, the community program director
designated by the State Department of Mental Health shall submit a
written recommendation to the court stating which forensic
conditional release program is most appropriate for supervising and
treating the committed person. If the court does not accept the
community program director's recommendation, the court shall specify
the reason or reasons for its order on the record. The procedures
described in Sections 1605 to 1610, inclusive, of the Penal Code
shall apply to the person placed in the forensic conditional release
program.
(f) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make the
necessary placement arrangements and, within 21 days after receiving
notice of the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision plan
unless good cause for not doing so is presented to the court.
(g) If the court rules against the committed person at the trial
for unconditional release from commitment, the court may place the
committed person on outpatient status in accordance with the
procedures described in Title 15 (commencing with Section 1600) of
Part 2 of the Penal Code.
(h) If the court denies the petition to place the person in an
appropriate forensic conditional release program or if the petition
for unconditional discharge is denied, the person may not file a new
application until one year has elapsed from the date of the denial.
(i) In any hearing authorized by this section, the petitioner
shall have the burden of proof by a preponderance of the evidence.
(j) If the petition for conditional release is not made by the
director of the treatment facility to which the person is committed,
no action on the petition shall be taken by the court without first
obtaining the written recommendation of the director of the treatment
facility.
(k) Time spent in a conditional release program pursuant to this
section shall not count toward the term of commitment under this
article unless the person is confined in a locked facility by the
conditional release program, in which case the time spent in a locked
facility shall count toward the term of commitment.
SEC. 33. 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.
SEC. 34. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
Due to the immediate threat that sexual predators pose to children
of the State of California, it is necessary that this act take
effect immediately.