BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair S
2005-2006 Regular Session B
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SB 613 (Denham)
As Introduced February 22, 2005
Hearing date: March 29, 2005
Penal Code
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CONTACTING MINORS INTENDING TO COMMIT SEX OFFENSES -
PUNISHED EQUIVALENT TO AN ATTEMPT TO COMMIT UNDERLYING CRIME
HISTORY
Source: Kidsafe
Prior Legislation: SB 882 (Denham) - 2003, died in Senate Public
Safety
SB 884 (Poochigian) - 2003, held in Senate
Appropriations
AB 1141 (La Suer) - 2002, held in Senate
Appropriations Committee
AB 1843 (Baldwin) - 1998, failed Assembly Committee
on Public Safety
AB 2021 (Steinberg) - Ch. 621, Stats. of 2000
Support: Attorney General of California; Capitol Resource
Institute; California District Attorneys Association;
Traditional Values Coalition; California State
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Sheriff's Association
Opposition:California Attorneys for Criminal Justice
KEY ISSUES
EXISTING LAW PROVIDES (1) THAT AN ATTEMPT TO COMMIT A CRIME OCCURS
WHERE THE DEFENDANT HAS THE SPECIFIC INTENT TO COMMIT A CRIME AND
TAKES A DIRECT, YET INNEFECTUAL, STEP TOWARD THE COMMISSION OF A
CRIME, AND, (2) A PERSON WHO IS CONVICTED OF AN ATTEMPTED CRIME
GENERALLY RECEIVES ONE-HALF THE PUNISHMENT THAT WOULD BE IMPOSED FOR
THE COMPLETED CRIME.
SHOULD A PERSON WHO CONTACTS A MINOR, OR WHO ATTEMPTS TO DO SO, WITH
THE INTENT TO COMMIT A SEX CRIME, CHILD ABUSE OR A SPECIFIED CHILD
PORNOGRAPHY OFFENSE BE PUNISHED AS THOUGH HE OR SHE HAD BEEN
CONVICTED OF AN ATTEMPT TO COMMIT THE SEX CRIME?
PURPOSE
The purpose of this bill is to provide that a person who
contacts or attempts to contact a minor for purposes of engaging
in child abuse, sex crimes against children or possession of
child pornography shall be treated as if the person were
convicted of an attempt to commit the specified crime.
Existing law provides that a person who attempts to commit a
crime, but who fails to commit the crime or who is prevented
from doing so, shall generally receive one-half the sentence
normally imposed for the completed crimes. Certain exceptions
apply; the punishment for attempted, premeditated murder is life
in prison with the possibility of parole. (Pen. Code 664.)
Existing law provides that a person is guilty of an attempt to
commit a crime where he or she specifically intends to commit
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the crime and takes a direct, but ineffectual, step towards its
commission. (Pen. Code 21a; 1 Witkin & Epstein, Cal. Crim.
Law (3d Ed. 2000) 53.)
This bill provides that any person who contacts or communicates
with a minor, or attempts to do so, and who knows or reasonably
should know that the person is a minor, with the intent to
commit an offense specified in Penal Code section 273a (child
abuse or endangerment), 286 (sodomy), 288 (lewd conduct), 288a
(oral copulation), or 311.11 (possession of child pornography)
involving a minor "shall be punished pursuant to the provisions
of Section 664."
This bill provides that "contacts or communicates with" includes
direct and indirect contact or communication that may be
achieved by use of an agent or agency. Contact or communication
can involve any print medium, postal service, a common carrier
or communications common carrier, any electronic communications
system, or any telecommunications wire, computer, or radio
communications device or system.
COMMENTS
1. Need for This Bill
According to the author:
The Internet has opened up a whole new world and can
be a valuable teaching resource for our children.
Unfortunately, predators have quickly discovered that
using the Internet can get them closer than ever to
our children. Through Internet e-mail and chatrooms,
child molesters have started stalking children. These
sexual predators use various pretenses to lure
children into face-to-face meetings. The predators
pretend to be something they are not in order to get a
meeting with the child. There have been numerous
instances where such encounters have resulted in rape
and other sexual assaults.
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California statutes have not caught up with the use of
this new criminal tool. We should not wait for a
child to be physically victimized before being able to
charge someone with the attempt to commit the sexual
abuse. Currently, courts and law enforcement have
been operating without clear guidance as to what
constitutes a sexual crime when it comes to luring
children on the Internet.
SB 613 makes it a crime to contact or communicate with
a minor with the intent to commit a sex offense.
Currently, Internet child offenders can be charged
under general child molestation laws, but not for
situations involving attempting to molest by luring
over the Internet.
This measure clarifies uncertainties in the California
Penal Code and paves the way for more vigorous
prosecution of predators attempt to have sex with
children by luring them over the Internet. It will
significantly assist law enforcement to take a
proactive role in the investigation and prosecution of
child molesters and sexual offenders.
2. This Bill was Previously Heard and Defeated - as SB 882
(Denham) in 2003
The text of this bill was previously heard in Senate Public
Safety in 2003 as SB 882 (Denham). The bill failed 2 to 1 on
its first hearing. Upon reconsideration, the bill failed 2 to
0, with four members not voting.
3. Issue of Whether This Bill Would be Redundant of
Attempted Sex Crimes
An attempt to commit a crime is itself a crime. An attempt
consists of two essential elements:
The specific intent to commit the attempted crime
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A direct, yet ultimately unsuccessful, step toward
commission of the crime
This bill appears to effectively describe an attempt to commit
one of a list of crimes - child abuse, sex crimes and possession
of child pornography - where the direct step towards its
commission is the contacting (through various means) of the
child.
This bill appears to include the following essential elements or
parts:
The defendant specifically intended to commit child
abuse or neglect, sex crimes against children or possession
of child pornography.
The defendant contacted, or attempted to contact a
minor.
The defendant knew or should have known that the person
contacted was a minor.
While existing law in this area is not entirely clear, it can be
argued that the crime described in this bill includes additional
elements that may not be required to prove attempt to commit
lewd conduct under existing law. That is: 1) This bill appears
to require (because of the knowledge requirement described in
#2) that the person contacted actually was a minor. 2) The bill
requires that the defendant knew, or should have known, that the
person contacted was a minor. It thus appears that a person
could not be successfully prosecuted under this bill in a law
enforcement sting in which a law enforcement officer pretends to
be a minor in order to catch an adult who intends to have sexual
contact with children.
A 1992 case (Burns) held that an adult could be convicted of
attempted lewd conduct with children in a case where the
intended "victims" did not exist because a law enforcement
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officer, posing as the (fictitious) children's mother, set up a
sting. The California Supreme Court ordered that the Burns
opinion not be published.
However, the court in People v. Reed (1996) 53 Cal.App.4th 839
held that a defendant who was lured into a law enforcement sting
to trap adults who intended to have sex with children could be
convicted of attempted lewd conduct. The California Supreme
Court denied a petition for review by the defendant and let the
decision stand as good law.
The court in Reed explained:
Our courts have repeatedly ruled that persons who are
charged with attempting to commit a crime cannot
escape liability because the criminal act they
attempted was not completed due to an impossibility
which they did not foresee: "factual impossibility is
not a defense to a charge of attempt." [Citations.]
The California Supreme Court has held that a person
who bought property from an undercover police officer,
believing it to be stolen even though it was not, was
properly convicted of attempting to receive stolen
property. [Citations.] An appellate court has
concluded that a defendant was guilty of attempting to
buy heroin, though he actually purchased talcum
powder, stating: "'If there is an apparent ability to
commit the crime in the way attempted, the attempt is
indictable, although, unknown to the person making the
attempt, the crime cannot be committed, because the
means employed are in fact unsuitable, or because of
extrinsic facts, such as the nonexistence of some
essential object, or an obstruction by the intended
victim, or by a third person.'" (People v. Siu (1954)
126 Cal.App. 2d 41, 44, italics added.) In People v.
Charles (1963) 218 Cal.App. 2d 812, 816-817, 819,
another division of this court held that the
defendants had properly been convicted of an attempt
to pander though the two women whom the defendants
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attempted to persuade to become prostitutes in a
brothel refused appellants' importunings. The court
commented that the lack of existence of the brothel
would not have excused the defendants from criminal
liability. (Id, at p. 819.)
Defendant attempts to distinguish this case from cases
such as those described above by stressing that the
intended victims were "imaginary." We have concluded
that this is a distinction without a difference.
Applying the established "perception" standard set out
above, if the circumstances had been as defendant
believed them to be, he would have found in the room
he entered two girls under fourteen available for him
to engage in lewd and lascivious conduct with them.
Defendant's failure to foresee that there would be no
children waiting does not excuse him from the attempt
to molest. Defendant showed no honest and reasonable,
or even unreasonable, belief that his actions would
have a legal outcome. Thus, defendant's mistake of
fact was not a defense to the crime of attempting to
molest girls under 14 years of age. (People v. Reed,
supra, 53 Cal.App.4th at p. 396.)
Further, an appellate court has ruled that a person can be
convicted of attempted lewd conduct where he contacted a
12-year-old child on the telephone and directed the child to
masturbate, although the child did not comply with the
defendant's directions. (People v. Imler (1992) 9 Cal.App.4th
1178.)
IS THE CONDUCT DEFINED AS CRIMINAL BY THIS BILL ALREADY A CRIME
UNDER EXISTING LAWS CONCERNING ATTEMPTED LEWD CONDUCT AND
ATTEMPTED CRIMES GENERALLY?
WOULD THIS BILL NOT APPLY IN CASES WHERE THE DEFENDANT WAS THE
TARGET OF A LAW ENFORCEMENT STING IN WHICH AN OFFICER PRETENDED
TO BE A MINOR WHO WAS SOLICITED BY THE DEFENDANT FOR PURPOSES OF
SEX ACTS?
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DOES THE AUTHOR OR PROSECUTORS HAVE EXAMPLES OF CASES WHERE
DEFENDANTS WHO CONTACTED MINORS THROUGH THE INTERNET FOR
PURPOSES OF SEX COULD NOT BE SUCCESSFULLY PROSECUTED BECAUSE OF
THE TERMS OF EXISTING LAW OF CRIMINAL ATTEMPTS?
ARE THERE EXAMPLES OF SUCCESSFUL PROSECUTIONS IN SUCH CASES
UNDER EXISTING LAW?
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4. Issue of Whether Proof of Intent to Commit the Sex Crime or
Abuse Would Typically Require Acts Beyond Simple Communication
Generally About Sex Acts
This bill raises issues about cases where the defendant did not
contact the minor face-to-face, but rather used the Internet,
telephone or mail. One might argue that this bill would apply
when the general attempt statute might be difficult to prove
because the defendant took no more steps toward commission of
the offense beyond contacting the minor. This may be a false
distinction, as the critical issue in cases of adults contacting
minors for sexual purposes will likely be proof of the intent to
commit the sex crime or physical abuse.
That is, where the adult took no step beyond contacting the
minor through an Internet, how would the prosecution prove that
the defendant truly intended to commit the sexual crime? The
defendant would likely argue in his or her defense that he or
she never intended to commit the offense, but rather would go no
further than communicating with the minor. In most cases, proof
of the intent would require some overt action beyond merely
contacting the minor- arranging a meeting at a particular time,
going to a meeting place, etc.
ALTHOUGH THE BILL APPEARS TO ALLOW A CONVICTION WHERE A PERSON
TOOK NO MORE STEPS THAN SIMPLY CONTACTING A MINOR FOR PURPOSES
OF SEXUAL ACTS, WOULD PROSECUTORS INEVITABLY NEED TO PROVE THAT
THE DFENDANT TOOK A STEP BEYOND THE MERE CONTACT IN ORDER TO
ESTABLISH THE ELEMENT (ALSO REQUIRED BY THE BILL) THAT THE
DEFENDANT SPECIFICALLY INTENDED TO COMMIT THE SEX ACT?
5. Specific Crime Statute Controls Over General - Issue of
Whether This Bill Could Limit Prosecutions Under the General
Attempt Statute
Arguably, this bill could limit existing law. A maxim of
criminal law holds that a specific law controls over a more
general law covering the same conduct. (1 Witkin & Epstein (3d
Ed. 2000) Intro. to Crimes, 59-61.) A defendant who
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contacted a minor, or who contacted an officer posing as a
minor, for purposes of sex, could perhaps demand to be
prosecuted under the section created by this bill, as this bill
would be much more specific than the general attempt statute.
Prosecutors could thereby lose any benefits of existing case law
concerning attempts to commit lewd conduct.
6. Reference to Possession of Lewd Conduct as a Target Crime for
the Special Attempt Crime Defined by This Bill - Possible
Drafting Error
This bill essentially creates a special form of attempt where
the defendant contacts a minor with the intent to commit abuse
or neglect, sex crimes or possession of child pornography. It
appears from the background material submitted by the author
that he perhaps intended to include use of minors in the
production of child pornography (Pen. Code 311.4), not
possession of child pornography (Pen. Code 311.11).
Perhaps a defendant could be convicted of possession of child
pornography where he or she kept photographs or videos showing
the child engaging in sexual conduct. However, within the
context of activity described by this bill, it would be more
likely that the adult would be prosecuted for contacting the
minor and inducing the minor to become involved in producing the
pornographic material.
DOES THE AUTHOR INTEND TO INCLUDE POSSESSION OF CHILD
PORNOGRAPHY - RATHER THAN USE OF A CHILD IN THE PRODUCTION OF
CHILD PORNOGRAPHY - AS A TARGET CRIME OF THE ATTEMPT CRIME
DEFINED BY THIS BILL?
7. Related Bill - SB 448 (Poochigian), Solicitation of Act
of Lewd Conduct
SB 448 (Poochigian), in part, considers a similar issue. SB 448
has not been set for hearing in this Committee. SB 448 would
allow a conviction for solicitation an act of lewd conduct (as
opposed to the crime of lewd conduct) based on the acts of the
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defendant in asking or urging a minor to engage in sexual
conduct with the defendant. SB 448 provides that the defendant
in such a case would be punished as though he or she had been
convicted of attempted lewd conduct. Generally, criminal
solicitation involves the defendant soliciting another person to
commit a crime. Since a minor who is the victim of lewd conduct
is not guilty of a crime, under traditional notions of
solicitation, a defendant is not guilty of soliciting lewd
conduct when he or she asks a child to engage in sex acts.
(People v. Herman (2002) 97 Cal.App.4th 1369.)
In the Herman case, the defendant asked 14 and 15 year old girls
to engage in sexual acts. He offered to give them money. The
court in Herman reversed the defendant's solicitation
convictions, but held that the defendant was guilty of attempted
lewd conduct. SB 448 would allow conviction of solicitation in
such cases.
8. Additional Related Legislation
AB 1153 (La Suer) is identical to this bill and is set for
hearing in the Assembly Committee on Public Safety on April 5,
2005.
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