BILL NUMBER: SB 1128 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 2, 2006
AMENDED IN SENATE FEBRUARY 9, 2006
INTRODUCED BY Senator Alquist
JANUARY 9, 2006
An act to amend Section 68152 of the Government Code, to amend
Sections 290, 290.46, 311.4, 311.11, 626.8, 800, 1192.7,
1202.8, 1203, Sections 209, 220 , 269,
288.5, 290, 290.3, 290.46, 331.4, 311.11, 626.8, 647.6, 667.1, 667.5,
667.51, 667.6, 667.61, 667.71, 800, 1170.125, 1192.7, 1202.8, 1203,
1203.06, 1203.065, 1203.075, 1203c, 3000, 3005, 12022.75,
13887, and 13887.1 of, to add Sections 288.3, 288.7, 290.03,
290.04, 290.05, 290.06, 290.07, 290.08, 290.09, 311.12, 626.83,
13015, and 13105 to, to add a heading to Chapter 5.5 (commencing with
Section 290) to Title 9 of Part 2 of, and to add Chapter 1.5
(commencing with Section 5040) to Title 7 of Part 3 of, the Penal
Code, and to amend Sections 6600 and 6601 of
, 6601, 6604, 6604.1, and 6605 of, and to repeal Section 6608 of,
the Welfare and Institutions Code, relating to sex offenders
, declaring the urgency thereof, to take effect immediately
.
LEGISLATIVE COUNSEL'S DIGEST
SB 1128, as amended, Alquist Sex Offender Punishment, Control,
and Containment Act of 2006.
Existing law sets forth timelines for the retention of court
records, depending upon the subject matter or criminal offense.
This bill would require courts to keep all records relating to
persons required to register as sex offenders for the life of the
offender. The bill also would prohibit a state or local law
enforcement agency from destroying any records relating to a
registered sex offender for the life of the offender. Because the
bill would impose new responsibilities on local agencies, the bill
would impose a state-mandated local program.
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 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 new offenses for persons who arrange a
meeting with a minor or person he or she believes to be a minor for
the purpose of exposing his or her genitals or public or rectal area,
having the child expose any of these areas, or engaging in lewd or
lascivious behavior; and for persons who actually go to that arranged
meeting.
Under existing law, continuous sexual abuse of a child is a felony
punishable by imprisonment in the state prison for 6, 12, or 16
years. Existing law prohibits and other felony sex offense involving
the same victim from being charged in the same proceeding, except as
specified.
This bill would change that provision to prohibit any other act of
substantial sexual conduct with a child under 14 years of age, or
lewd and lascivious acts, involving the same victim, from being
charged in the same proceeding, except as specified.
Under existing law, the punishment for annoying or molesting a
child is a maximum fine of $1,000 and imprisonment in the county
jail.
This bill would increase the maximum fine to $5,000 and would
create a new crime for persons who, motivated by an unnatural or
abnormal sexual interest in children, engages in conduct with an
adult whom he or she believes to be a child, which conduct, if
directed toward a child, would be a violation of the above provision.
Under existing law, lewd or lascivious conduct with a minor is a
felony. Under existing law, any person who engages in unlawful sexual
intercourse with a minor who is more than 3 years younger than the
perpetrator is guilty of either a misdemeanor or felony, and may also
be liable for civil penalties.
This bill would provide that a person who contacts or
communicates with a minor with the intent to commit a lewd or
lascivious act is guilty of a misdemeanor or felony. The
bill would also provide that any adult who engages
in sexual intercourse or sodomy with a child who is 10 years of age
or younger is guilty of a felony and shall be punished by
imprisonment in the state prison for 25 years to life. Because the
bill would create new crimes, the bill would impose a state-mandated
local program.
Existing law requires a person convicted any specified sex offense
to register as a sex offender.
This bill would add the above new crimes to the list of crimes
that require a person to register as a sex offender, and would
require every adult male who is required to register as a sex
offender to be assessed for risk of recidivism using the STATIC-99
assessment tool. The bill would require the Department of Corrections
and Rehabilitation, in consultation with the Department of Mental
Health and other experts, to research actuarial risk assessment tools
for female and juvenile sex offenders. The bill would require the
department to establish a training program for probation officers,
parole officers, and others to become designated risk assessment
testers. The bill would require the Department of Justice to renovate
the Violent Crime Information Network, as specified.
This bill would make findings and declarations regarding the need
for a comprehensive system of risk assessment, supervision,
monitoring, and containment for registered sex offenders.
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 SAFE teams.
Existing law requires the Department of Justice to make available
to the public information regarding registered sex offenders via an
Internet Web site.
This bill would require the Attorney General to develop strategies
to assist members of the public in understanding how to use the
information on the Web site to further public safety.
Under existing law, possession of pornographic material that
depicts a minor engaging in sexual conduct is a misdemeanor.
This bill would provide that if the material depicts a minor who
is prepubescent, the crime is a misdemeanor or
felony, and if the person intends to distribute or exchange that
material with another person, regardless of commercial intent, the
crime is a felony. Because the bill would change the scope of a
crime, the bill would impose a state-mandated local program.
The bill would authorize any monetary assets gained from the
production, publication, sale, distribution, exchange, or control of
pornographic material that depicts a minor to be subject to
forfeiture.
Under existing law, it is a misdemeanor for any person without any
lawful business thereon, including any specified sex offender, to
remain on school grounds, or to reenter school grounds, or any public
way adjacent thereto, after being asked to leave, as specified.
This bill would instead make it a misdemeanor for any person who
is required to register as a sex offender to come into any school
building or upon any school ground without lawful business thereon or
written permission from the chief administrative official of that
school, or who loiters about any street, sidewalk, or public way
adjacent to any school building, school grounds, public playground,
or other youth recreational facility where minors are present,
without lawful business thereon. Because the bill would increase the
scope of an existing crime, the bill would impose a state-mandated
local program.
This bill also would make it a misdemeanor for a person who is
required to register as a sex offender where the victim was an
elderly or dependent person to come onto any property where elderly
or dependent persons reside or regularly are present, without lawful
business thereon or written permission from the director of the
facility.
Existing law, added by initiative acts that require 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, prosecution for an offense punishable by
imprisonment in the state prison for 8 years or more is required to
be commenced within 6 years after the commission of the offense.
This bill would extend the statute of limitations for prosecuting
possession of child pornography for commercial purposes to 10 years
from the date of production.
Existing law, added by an initiative statute which provides for
amendment of its provision by 2/3 vote of the Legislature, prohibits
plea bargaining in certain felony cases, except as specified.
This bill would state the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under "one strike," "3 strikes" or habitual sexual
offender laws instead of engaging in plea bargaining, and would
require a district attorney to state on the record why a sentence
should not be prosecuted under those provisions, if he or she engages
in plea bargaining despite the stated intent.
Existing law establishes a county probation system.
This bill would require probation officers trained in the use of
the STATIC-99 assessment tool to perform a pre-sentencing risk
assessment of every adult male convicted of an offense that requires
him to register as a sex offender. The bill would require each
probation officer to compile a Facts of Offense Sheet for those
offenders, as specified. The bill would require each county to
designate certain probation officers to be trained to administer the
STATIC-99 assessment tool and to monitor registered sex offenders.
The bill would require those probationers to report more frequently
to their probation officer and to be subject to more intensive
scrutiny. Because the bill would impose additional duties on
probation officers, it would impose a state-mandated local program.
Existing law requires a probation officer to prepare a report for
the court for each person convicted of a felony.
This bill would require a probation officer to also use the
STATIC-99 assessment tool on each person convicted of a felony that
requires him or her to register as a sex offender, in order to
determine the persons' risk of reoffending, and to include that
assessment in the presentencing report. The bill would require the
results of that assessment to be considered by the court in
determining suitability for probation.
Existing law provides for a 3-year maximum period of parole for
persons who are convicted of a felony, except that the maximum period
of parole for persons who are convicted of certain violent felonies
is 5 years.
This bill would set the maximum period of parole for persons who
are convicted of certain sex offenses at 10 years.
Existing law requires the Department of Corrections and
Rehabilitation to ensure that all parolees under active supervision
and deemed to pose a high risk to the public of committing a violent
sex crime to be placed on an intensive and specialized parole
supervision caseload.
This bill would instead required those parolees who are deemed to
pose a moderate-high or high risk to the public of committing any sex
crime, as determined by the STATIC-99 assessment tool, to be placed
on such a caseload, and to be required to report frequently to
designated parole officers.
This bill would require the department to use the STATIC-99
assessment tool to perform a risk assessment on all inmates who are
convicted of a sex offense that requires them to register as a sex
offender, upon commitment to the department or prior to being
released on parole. The bill would require the department to develop
containment and control programming for sex offenders who have been
assessed as having a moderate-high or high risk of committing a sex
offense, pursuant to that provision.
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 authorizes counties to establish sexual assault
felony enforcement (SAFE) teams to reduce violent sexual assaults
through proactive surveillance of habitual sexual offenders.
This bill would require every county to establish a SAFE team.
Because the bill would impose new duties on local governments, it
would create a state-mandated local program.
Existing law defines "sexually violent offense" for purposes of
the sexually violent predator law.
This bill would include prior convictions for certain offenses
convicted as a juvenile or that resulted in an indeterminate sentence
in that definition , and would otherwise expand that definition
to include additional crimes .
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, as specified.
This bill instead would provide that such a finding shall toll his
or her period of parole.
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.
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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
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 as the Sex Offender Punishment,
Control, and Containment Act of 2006.
SEC. 2. The Legislature finds and declares all of the following:
(a) The primary public policy goal of managing sex offenders in
the community is the prevention of future victimization.
(b) California's tactics for monitoring registered sex offenders
must be transformed into a cohesive and comprehensive system of state
and local law enforcement supervision to observe, assess, and
proactively respond to patterns and conduct of registered sex
offenders in the community.
(c) California's infrastructure for collecting, maintaining, and
disseminating information about registered sex offenders must be
retooled to ensure that law enforcement and the public have access to
accurate, up-to-date, and relevant information about registered sex
offenders.
(d) In order to accomplish these goals, the Legislature hereby
enacts the Sex Offender Control and Containment Act of 2006.
SEC. 3. Section 68152 of the Government Code is amended to read:
68152. The trial court clerk may destroy court records under
Section 68153 after notice of destruction and if there is no request
and order for transfer of the records, except the comprehensive
historical and sample superior court records preserved for research
under the California Rules of Court, when the following times have
expired after final disposition of the case in the categories listed:
(a) Adoption: retain permanently.
(b) Change of name: retain permanently.
(c) Other civil actions and proceedings, as follows:
(1) Except as otherwise specified: 10 years.
(2) Where a party appears by a guardian ad litem: 10 years after
termination of the court's jurisdiction.
(3) Domestic violence: same period as duration of the restraining
or other orders and any renewals, then retain the restraining or
other orders as a judgment; 60 days after expiration of the temporary
protective or temporary restraining order.
(4) Eminent domain: retain permanently.
(5) Family law, except as otherwise specified: 30 years.
(6) Harassment: same period as duration of the injunction and any
renewals, then retain the injunction as a judgment; 60 days after
expiration of the temporary restraining order.
(7) Mental health (Lanterman Developmental Disabilities Services
Act and Lanterman-Petris-Short Act): 30 years.
(8) Paternity: retain permanently.
(9) Petition, except as otherwise specified: 10 years.
(10) Real property other than unlawful detainer: retain
permanently if the action affects title or an interest in real
property.
(11) Small claims: 10 years.
(12) Unlawful detainer: one year if judgment is for possession of
the premises; 10 years if judgment is for money.
(d) Notwithstanding subdivision (c), any civil or small claims
case in the trial court:
(1) Involuntarily dismissed by the court for delay in prosecution
or failure to comply with state or local rules: one year.
(2) Voluntarily dismissed by a party without entry of judgment:
one year.
Notation of the dismissal shall be made on the civil index of
cases or on a separate dismissal index.
(e) Criminal.
(1) Capital felony (murder with special circumstances where the
prosecution seeks the death penalty): retain permanently. If the
charge is disposed of by acquittal or a sentence less than death, the
case shall be reclassified.
(2) Felony, except as otherwise specified: 75 years.
(3) Felony, except capital felony, with court records from the
initial complaint through the preliminary hearing or plea and for
which the case file does not include final sentencing or other final
disposition of the case because the case was bound over to the
superior court: five years.
(4) Misdemeanor, except as otherwise specified: five years.
(5) Misdemeanor alleging a violation of the Vehicle Code, except
as otherwise specified: three years.
(6) Misdemeanor alleging a violation of Section 23103, 23152, or
23153 of the Vehicle Code: 10 years.
(7) Misdemeanor alleging a violation of Section 14601, 14601.1,
20002, 23104, or 23109 of the Vehicle Code: five years.
(8) Misdemeanor alleging a marijuana violation under subdivision
(b), (c), (d), or (e) of Section 11357 of the Health and Safety Code,
or subdivision (b) of Section 11360 of the Health and Safety Code in
accordance with the procedure set forth in Section 11361.5 of the
Health and Safety Code: records shall be destroyed two years from the
date of conviction or from the date of arrest if no conviction.
(9) Misdemeanor, infraction, or civil action alleging a violation
of the regulation and licensing of dogs under Sections 30951 to
30956, inclusive, of the Food and Agricultural Code or violation of
any other local ordinance: three years.
(10) Infraction, except as otherwise specified: three years.
(11) Parking infractions, including alleged violations under the
stopping, standing, and parking provisions set forth in Chapter 9
(commencing with Section 22500) of Division 11 of the Vehicle Code:
two years.
(12) Records relating to a person required to register as a sex
offender pursuant to Section 290 of the Penal Code: retain for the
life of the person.
(f) Habeas corpus: same period as period for retention of the
records in the underlying case category.
(g) Juvenile.
(1) Dependent (Section 300 of the Welfare and Institutions Code):
upon reaching age 28 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed pursuant to subdivision (c) of
Section 389 of the Welfare and Institutions Code.
(2) Ward (Section 601 of the Welfare and Institutions Code): upon
reaching age 21 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed under subdivision (d) of Section
781 of the Welfare and Institutions Code.
(3) Ward (Section 602 of the Welfare and Institutions Code): upon
reaching age 38 under subdivision (a) of Section 826 of the Welfare
and Institutions Code. Sealed records shall be destroyed upon court
order when the subject of the record reaches the age of 38 under
subdivision (d) of Section 781 of the Welfare and Institutions Code.
(4) Traffic and some nontraffic misdemeanors and infractions
(Section 601 of the Welfare and Institutions Code): upon reaching
age 21 or five years after jurisdiction over the person has
terminated under subdivision (c) of Section 826 of the Welfare and
Institutions Code. May be microfilmed or photocopied.
(5) Marijuana misdemeanor under subdivision (e) of Section 11357
of the Health and Safety Code in accordance with procedures specified
in subdivision (a) of Section 11361.5 of the Health and Safety Code:
upon reaching age 18 the records shall be destroyed.
(h) Probate.
(1) Conservatorship: 10 years after decree of termination.
(2) Guardianship: 10 years after the age of 18.
(3) Probate, including probated wills, except as otherwise
specified: retain permanently.
(i) Court records of the appellate division of the superior court:
five years.
(j) Other records.
(1) Applications in forma pauperis: any time after the disposition
of the underlying case.
(2) Arrest warrant: same period as period for retention of the
records in the underlying case category.
(3) Bench warrant: same period as period for retention of the
records in the underlying case category.
(4) Bond: three years after exoneration and release.
(5) Coroner's inquest report: same period as period for retention
of the records in the underlying case category; if no case, then
permanent.
(6) Court orders not associated with an underlying case, such as
orders for destruction of court records for telephone taps, or to
destroy drugs, and other miscellaneous court orders: three years.
(7) Court reporter notes: 10 years after the notes have been taken
in criminal and juvenile proceedings and five years after the notes
have been taken in all other proceedings, except notes reporting
proceedings in capital felony cases (murder with special
circumstances where the prosecution seeks the death penalty and the
sentence is death), including notes reporting the preliminary
hearing, which shall be retained permanently, unless the Supreme
Court on request of the court clerk authorizes the destruction.
(8) Electronic recordings made as the official record of the oral
proceedings under the California Rules of Court: any time after final
disposition of the case in infraction and misdemeanor proceedings,
10 years in all other criminal proceedings, and five years in all
other proceedings.
(9) Electronic recordings not made as the official record of the
oral proceedings under the California Rules of Court: any time either
before or after final disposition of the case.
(10) Index, except as otherwise specified: retain permanently.
(11) Index for cases alleging traffic violations: same period as
period for retention of the records in the underlying case category.
(12) Judgments within the jurisdiction of the superior court other
than in a limited civil case, misdemeanor case, or infraction case:
retain permanently.
(13) Judgments in misdemeanor cases, infraction cases, and limited
civil cases: same period as period for retention of the records in
the underlying case category.
(14) Minutes: same period as period for retention of the records
in the underlying case category.
(15) Naturalization index: retain permanently.
(16) Ninety-day evaluation (under Section 1203.03 of the Penal
Code): same period as period for retention of the records in the
underlying case category, or period for completion or termination of
probation, whichever is longer.
(17) Register of actions or docket: same period as period for
retention of the records in the underlying case category, but in no
event less than 10 years for civil and small claims cases.
(18) Search warrant: 10 years, except search warrants issued in
connection with a capital felony case defined in paragraph (7), which
shall be retained permanently.
(k) Retention of any of the court records under this section shall
be extended as follows:
(1) By order of the court on its own motion, or on application of
a party or any interested member of the public for good cause shown
and on those terms as are just. A fee shall not be charged for making
the application.
(2) Upon application and order for renewal of the judgment to the
extended time for enforcing the judgment.
SEC. 4. 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 such act of those acts
, is guilty of a felony , and upon .
Upon conviction thereof, shall be punished by imprisonment in
the state prison for life without possibility of parole in cases in
which any person subjected to any such act 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 in
cases where no such person suffers 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
sexual penetration in 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. 5. Section 220 of the Penal Code
is amended to read:
220. (a) Every person who assaults another
with intent to commit mayhem, rape, sodomy, oral copulation, or any
violation of Section 264.1, 288 or 289 is punishable
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 the 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. 6. 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 10
seven or more years younger than the person is guilty of
aggravated sexual assault of a child:
(1) A Rape, in violation of
paragraph (2) or (6) of subdivision (a) of Section 261.
(2) A 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 ,
when committed by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person
.
(4) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a ,
when committed by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person
.
(5) A 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. 4. SEC. 7. Section 288.3 is
added to the Penal Code, to read:
288.3. (a) Any adult who contacts or communicates with a minor
under 16 years of age, or who contacts or communicates with another
person whom the adult believes to be a minor under 16 years of age,
with the intent to commit any lewd or lascivious act, is guilty of a
misdemeanor or felony.
(b) Prosecution under this section shall not prohibit prosecution
under any other provision of law, including prosecution for intent to
commit a sex offense.
(c) If the defendant acts with the requisite intent, it is not a
defense to prosecution under this section that the person contacted
by the defendant was a law enforcement officer posing as a minor.
(d) As used in this section, "contacts or communicates" has the
same meaning as in subparagraph (B) of paragraph (3) of subdivision
(b) of Section 272.
288.3. (a) (1) Every person who, motivated by an
unnatural or abnormal sexual interest in children, arranges a meeting
with a minor or a person he or she believes to be a minor for the
purpose of exposing his or her genitals or pubic or rectal area,
having the child expose his or her genitals or pubic or rectal area,
or engaging in lewd or lascivious behavior, shall be punished by a
fine not exceeding five thousand dollars ($5,000), by imprisonment in
a county jail not exceeding one year, or by both the fine and
imprisonment.
(2) Every person who violates this subdivision after a prior
conviction for an offense listed in subparagraph (A) of paragraph (2)
of subdivision (a) of Section 290 shall be punished by imprisonment
in the state prison.
(b) Every person described in paragraph (1) of subdivision (a) who
goes to the arranged meeting place at or about the arranged time,
shall be punished by imprisonment in the state prison for two, three,
or four years.
(c) Prosecution under this section shall not prohibit prosecution
under any other provision of law.
SEC. 8. Section 288.5 of the Penal Code
is amended to read:
288.5. (a) Any person who either resides in the same home with
the minor child or has recurring access to the child, who over a
period of time, not less than three months in duration, engages in
three or more acts of substantial sexual conduct with a child under
the age of 14 years at the time of the commission of the offense, as
defined in subdivision (b) of Section 1203.066, or three or more acts
of lewd or lascivious conduct under , as
defined in Section 288, with a child under the age of 14 years
at the time of the commission of the offense is guilty of the offense
of continuous sexual abuse of a child and shall be punished by
imprisonment in the state prison for a term of 6, 12, or 16 years.
(b) To convict under this section the trier of fact, if a jury,
need unanimously agree only that the requisite number of acts
occurred not on which acts constitute the requisite number.
(c) No other felony sex offense act of
substantial sexual conduct, as defined in subdivision (b) of Section
1203.066, with a child under 14 years of age at the time of the
commission of the offenses, or lewd and lascivious acts, as defined
in Section 288, involving the same victim may be charged in the
same proceeding with a charge under this section unless the other
charged offense occurred outside the time period charged under this
section or the other offense is charged in the alternative. A
defendant may be charged with only one count under this section
unless more than one victim is involved in which case a separate
count may be charged for each victim.
SEC. 5. SEC. 9. Section 288.7 is
added to the Penal Code, to read:
288.7. Any person 18 years of age or older who engages in sexual
intercourse or sodomy with a child who is 10 years of age or younger
is guilty of a felony and shall be punished by imprisonment in the
state prison for a term of 25 years to life.
SEC. 6. SEC. 10. The heading of
Chapter 5.5 (commencing with Section 290) is added to Title 9 of Part
2 of the Penal Code, to read:
CHAPTER 5.5. SEX OFFENDERS
SEC. 7. SEC. 11. Section 290 of the
Penal Code is amended to read:
290. (a) (1) (A) Every person described in paragraph (2), for the
rest of his or her life while residing in California, or while
attending school or working in California, as described in
subparagraph (G), shall be required to register with the chief of
police of the city in which he or she is residing, or the sheriff of
the county if he or she is residing in an unincorporated area or city
that has no police department, and, additionally, with the chief of
police of a campus of the University of California, the California
State University, or community college if he or she is residing upon
the campus or in any of its facilities, within five working days of
coming into, or changing his or her residence within, any city,
county, or city and county, or campus in which he or she temporarily
resides.
(B) If the person who is registering has more than one residence
address at which he or she regularly resides, he or she shall
register in accordance with subparagraph (A) in each of the
jurisdictions in which he or she regularly resides, regardless of the
number of days or nights spent there. If all of the addresses are
within the same jurisdiction, the person shall provide the
registering authority with all of the addresses where he or she
regularly resides.
(C) Every person described in paragraph (2), for the rest of his
or her life while living as a transient in California shall be
required to register, as follows:
(i) A transient must register, or reregister if the person has
previously registered, within five working days from release from
incarceration, placement or commitment, or release on probation,
pursuant to paragraph (1) of subdivision (a), except that if the
person previously registered as a transient less than 30 days from
the date of his or her release from incarceration, he or she does not
need to reregister as a transient until his or her next required
30-day update of registration. If a transient is not physically
present in any one jurisdiction for five consecutive working days, he
or she must register in the jurisdiction in which he or she is
physically present on the fifth working day following release,
pursuant to paragraph (1) of subdivision (a). Beginning on or before
the 30th day following initial registration upon release, a transient
must reregister no less than once every 30 days thereafter. A
transient shall register with the chief of police of the city in
which he or she is physically present within that 30-day period, or
the sheriff of the county if he or she is physically present in an
unincorporated area or city that has no police department, and
additionally, with the chief of police of a campus of the University
of California, the California State University, or community college
if he or she is physically present upon the campus or in any of its
facilities. A transient must reregister no less than once every 30
days regardless of the length of time he or she has been physically
present in the particular jurisdiction in which he or she
reregisters. If a transient fails to reregister within any 30-day
period, he or she may be prosecuted in any jurisdiction in which he
or she is physically present.
(ii) A transient who moves to a residence shall have five working
days within which to register at that address, in accordance with
subparagraph (A) of paragraph (1) of subdivision (a). A person
registered at a residence address in accordance with subparagraph (A)
of paragraph (1) of subdivision (a), who becomes transient shall
have five working days within which to reregister as a transient in
accordance with clause (i).
(iii) Beginning on his or her first birthday following
registration, a transient shall register annually, within five
working days of his or her birthday, to update his or her
registration with the entities described in clause (i). A transient
shall register in whichever jurisdiction he or she is physically
present on that date. At the 30-day updates and the annual update, a
transient shall provide current information as required on the
Department of Justice annual update form, including the information
described in subparagraphs (A) to (C), inclusive, of paragraph (2) of
subdivision (e), and the information specified in clause (iv).
(iv) A transient shall, upon registration and reregistration,
provide current information as required on the Department of Justice
registration forms, and shall also list the places where he or she
sleeps, eats, works, frequents, and engages in leisure activities. If
a transient changes or adds to the places listed on the form during
the 30-day period, he or she does not need to report the new place or
places until the next required reregistration.
(v) Failure to comply with the requirement of reregistering every
30 days following initial registration pursuant to clause (i) of this
subparagraph shall be punished in accordance with paragraph (6) of
subdivision (g). Failure to comply with any other requirement of this
section shall be punished in accordance with either paragraph (1) or
(2) of subdivision (g).
(vi) A transient who moves out of state shall inform, in person,
the chief of police in the city in which he or she is physically
present, or the sheriff of the county if he or she is physically
present in an unincorporated area or city that has no police
department, within five working days, of his or her move out of
state. The transient shall inform that registering agency of his or
her planned destination, residence or transient location out of
state, and any plans he or she has to return to California, if known.
The law enforcement agency shall, within three days after receipt of
this information, forward a copy of the change of location
information to the Department of Justice. The department shall
forward appropriate registration data to the law enforcement agency
having local jurisdiction of the new place of residence or location.
(vii) For purposes of this section, "transient" means a person who
has no residence. "Residence" means one or more addresses at which a
person regularly resides, regardless of the number of days or nights
spent there, such as a shelter or structure that can be located by a
street address, including, but not limited to, houses, apartment
buildings, motels, hotels, homeless shelters, and recreational and
other vehicles.
(viii) The transient registrant's duty to update his or her
registration no less than every 30 days shall begin with his or her
second transient update following the date this subdivision became
effective.
(D) Beginning on his or her first birthday following registration
or change of address, the person shall be required to register
annually, within five
working days of his or her birthday, to update his or her
registration with the entities described in subparagraph (A). At the
annual update, the person shall provide current information as
required on the Department of Justice annual update form, including
the information described in subparagraphs (A) to (C), inclusive, of
paragraph (2) of subdivision (e).
(E) In addition, every person who has ever been adjudicated a
sexually violent predator, as defined in Section 6600 of the Welfare
and Institutions Code, shall, after his or her release from custody,
verify his or her address no less than once every 90 days and place
of employment, including the name and address of the employer, in a
manner established by the Department of Justice.
(F) No entity shall require a person to pay a fee to register or
update his or her registration pursuant to this section. The
registering agency shall submit registrations, including annual
updates or changes of address, directly into the Department of
Justice Violent Crime Information Network (VCIN). The registering
agency shall give the registrant a copy of the completed Department
of Justice form each time the person registers or reregisters,
including at the annual update.
(G) Persons required to register in their state of residence who
are out-of-state residents employed, or carrying on a vocation in
California on a full-time or part-time basis, with or without
compensation, for more than 14 days, or for an aggregate period
exceeding 30 days in a calendar year, shall register in accordance
with subparagraph (A). Persons described in paragraph (2) who are
out-of-state residents enrolled in any educational institution in
California, as defined in Section 22129 of the Education Code, on a
full-time or part-time basis, shall register in accordance with
subparagraph (A). The place where the out-of-state resident is
located, for purposes of registration, shall be the place where the
person is employed, carrying on a vocation, or attending school. The
out-of-state resident subject to this subparagraph shall, in addition
to the information required pursuant to subdivision (e), provide the
registering authority with the name of his or her place of
employment or the name of the school attended in California, and his
or her address or location in his or her state of residence. The
registration requirement for persons subject to this subparagraph
shall become operative on November 25, 2000. The terms "employed or
carries on a vocation" include employment whether or not financially
compensated, volunteered, or performed for government or educational
benefit.
(2) The following persons shall be required to register pursuant
to paragraph (1):
(A) Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military
court of a violation of Section 207 or 209 committed with intent to
violate Section 261, 286, 288, 288a, or 289, Section 220, except
assault to commit mayhem, Section 243.4, paragraph (1), (2), (3),
(4), or (6) of subdivision (a) of Section 261, or paragraph (1) of
subdivision (a) of Section 262 involving the use of force or violence
for which the person is sentenced to the state prison, Section
264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b)
of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.5,
288.7, or 289, Section 311.1, subdivision (b), (c), or (d) of
Section 311.2, Section 311.3, 311.4, 311.10, 311.11, 626.83, or
647.6, former Section 647a, subdivision (c) of Section 653f,
subdivision 1 or 2 of Section 314, any offense involving lewd or
lascivious conduct under Section 272, or any felony violation of
Section 288.2; or any statutory predecessor that includes all
elements of one of the above-mentioned offenses; or any person who
since that date has been or is hereafter convicted of the attempt to
commit any of the above-mentioned offenses.
(B) Any person who, since July 1, 1944, has been or hereafter is
released, discharged, or paroled from a penal institution where he or
she was confined because of the commission or attempted commission
of one of the offenses described in subparagraph (A).
(C) Any person who, since July 1, 1944, has been or hereafter is
determined to be a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code or any person who has been found
guilty in the guilt phase of a trial for an offense for which
registration is required by this section but who has been found not
guilty by reason of insanity in the sanity phase of the trial.
(D) (i) Any person who, since July 1, 1944, has been, or is
hereafter convicted in any other court, including any state, federal,
or military court, of any offense that, if committed or attempted in
this state, would have been punishable as one or more of the
offenses described in subparagraph (A).
(ii) Any person ordered by any other court, including any state,
federal, or military court, to register as a sex offender for any
offense, if the court found at the time of conviction or sentencing
that the person committed the offense as a result of sexual
compulsion or for purposes of sexual gratification.
(iii) Except as provided in clause (iv), any person who would be
required to register while residing in the state of conviction for a
sex offense committed in that state.
(iv) Clause (iii) shall not apply to a person required to register
in the state of conviction if the conviction was for the equivalent
of one of the following offenses, and the person is not subject to
clause (i):
(I) Indecent exposure, pursuant to Section 314.
(II) Unlawful sexual intercourse, pursuant to Section 261.5.
(III) Incest, pursuant to Section 285.
(IV) Sodomy, pursuant to Section 286, or oral copulation, pursuant
to Section 288a, provided that the offender notifies the Department
of Justice that the sodomy or oral copulation conviction was for
conduct between consenting adults, as described in subparagraph (F)
of paragraph (2) of subdivision (a), and the department is able, upon
the exercise of reasonable diligence, to verify that fact.
(E) Any person ordered by any court to register pursuant to this
section for any offense not included specifically in this section if
the court finds at the time of conviction or sentencing that the
person committed the offense as a result of sexual compulsion or for
purposes of sexual gratification. The court shall state on the record
the reasons for its findings and the reasons for requiring
registration.
(F) Any person required to register pursuant to any provision of
this section, regardless of whether the person's conviction has been
dismissed pursuant to Section 1203.4, unless the person obtains a
certificate of rehabilitation and is entitled to relief from
registration pursuant to Section 290.5.
(G) (i) Notwithstanding any other subdivision, a person who was
convicted before January 1, 1976, under subdivision (a) of Section
286, or Section 288a, shall not be required to register pursuant to
this section for that conviction if the conviction was for conduct
between consenting adults that was decriminalized by Chapter 71 of
the Statutes of 1975 or Chapter 1139 of the Statutes of 1976. The
Department of Justice shall remove that person from the Sex Offender
Registry, and the person is discharged from his or her duty to
register pursuant to the following procedure:
(I) The person submits to the Department of Justice official
documentary evidence, including court records or police reports, that
demonstrate that the person's conviction pursuant to either of those
sections was for conduct between consenting adults that was
decriminalized; or
(II) The person submits to the department a declaration stating
that the person's conviction pursuant to either of those sections was
for consensual conduct between adults that has been decriminalized.
The declaration shall be confidential and not a public record, and
shall include the person's name, address, telephone number, date of
birth, and a summary of the circumstances leading to the conviction,
including the date of the conviction and county of the occurrence.
(III) The department shall determine whether the person's
conviction was for conduct between consensual adults that has been
decriminalized. If the conviction was for consensual conduct between
adults that has been decriminalized, and the person has no other
offenses for which he or she is required to register pursuant to this
section, the department shall, within 60 days of receipt of those
documents, notify the person that he or she is relieved of the duty
to register, and shall notify the local law enforcement agency with
which the person is registered that he or she has been relieved of
the duty to register. The local law enforcement agency shall remove
the person's registration from its files within 30 days of receipt of
notification. If the documentary or other evidence submitted is
insufficient to establish the person's claim, the department shall,
within 60 days of receipt of those documents, notify the person that
his or her claim cannot be established, and that the person shall
continue to register pursuant to this section. The department shall
provide, upon the person's request, any information relied upon by
the department in making its determination that the person shall
continue to register pursuant to this section. Any person whose claim
has been denied by the department pursuant to this clause may
petition the court to appeal the department's denial of the person's
claim.
(ii) On or before July 1, 1998, the department shall make a report
to the Legislature concerning the status of persons who may come
under the provisions of this subparagraph, including the number of
persons who were convicted before January 1, 1976, under subdivision
(a) of Section 286 or Section 288a and are required to register under
this section, the average age of these persons, the number of these
persons who have any subsequent convictions for a registerable sex
offense, and the number of these persons who have sought successfully
or unsuccessfully to be relieved of their duty to register under
this section.
(b) (1) Any person who is released, discharged, or paroled from a
jail, state or federal prison, school, road camp, or other
institution where he or she was confined because of the commission or
attempted commission of one of the offenses specified in subdivision
(a) or is released from a state hospital to which he or she was
committed as a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code, shall, prior to discharge,
parole, or release, be informed of his or her duty to register under
this section by the official in charge of the place of confinement or
hospital, and the official shall require the person to read and sign
any form that may be required by the Department of Justice, stating
that the duty of the person to register under this section has been
explained to the person. The official in charge of the place of
confinement or hospital shall obtain the address where the person
expects to reside upon his or her discharge, parole, or release and
shall report the address to the Department of Justice. The official
shall at the same time forward a current photograph of the person to
the Department of Justice.
(2) The official in charge of the place of confinement or hospital
shall give one copy of the form to the person and shall send one
copy to the Department of Justice and one copy to the appropriate law
enforcement agency or agencies having jurisdiction over the place
the person expects to reside upon discharge, parole, or release. If
the conviction that makes the person subject to this section is a
felony conviction, the official in charge shall, not later than 45
days prior to the scheduled release of the person, send one copy to
the appropriate law enforcement agency or agencies having local
jurisdiction where the person expects to reside upon discharge,
parole, or release; one copy to the prosecuting agency that
prosecuted the person; and one copy to the Department of Justice. The
official in charge of the place of confinement or hospital shall
retain one copy.
(c) (1) Any person who is convicted in this state of the
commission or attempted commission of any of the offenses specified
in subdivision (a) and who is released on probation, shall, prior to
release or discharge, be informed of the duty to register under this
section by the probation department, and a probation officer shall
require the person to read and sign any form that may be required by
the Department of Justice, stating that the duty of the person to
register under this section has been explained to him or her. The
probation officer shall obtain the address where the person expects
to reside upon release or discharge and shall report within three
days the address to the Department of Justice. The probation officer
shall give one copy of the form to the person, send one copy to the
Department of Justice, and forward one copy to the appropriate law
enforcement agency or agencies having local jurisdiction where the
person expects to reside upon his or her discharge, parole, or
release.
(2) Any person who is convicted in this state of the commission or
attempted commission of any of the offenses specified in subdivision
(a) and who is granted conditional release without supervised
probation, or discharged upon payment of a fine, shall, prior to
release or discharge, be informed of the duty to register under this
section in open court by the court in which the person has been
convicted, and the court shall require the person to read and sign
any form that may be required by the Department of Justice, stating
that the duty of the person to register under this section has been
explained to him or her. If the court finds that it is in the
interest of the efficiency of the court, the court may assign the
bailiff to require the person to read and sign forms under this
section. The court shall obtain the address where the person expects
to reside upon release or discharge and shall report within three
days the address to the Department of Justice. The court shall give
one copy of the form to the person, send one copy to the Department
of Justice, and forward one copy to the appropriate law enforcement
agency or agencies having local jurisdiction where the person expects
to reside upon his or her discharge, parole, or release.
(d) (1) Any person who, on or after January 1, 1986, is discharged
or paroled from the Department of Corrections and Rehabilitation to
the custody of which he or she was committed after having been
adjudicated a ward of the juvenile court pursuant to Section 602 of
the Welfare and Institutions Code because of the commission or
attempted commission of any offense described in paragraph (3) shall
be subject to registration under the procedures of this section.
(2) Any person who is discharged or paroled from a facility in
another state that is equivalent to the Division of Juvenile Justice,
to the custody of which he or she was committed because of an
offense which, if committed or attempted in this state, would have
been punishable as one or more of the offenses described in paragraph
(3), shall be subject to registration under the procedures of this
section.
(3) Any person described in this subdivision who committed an
offense in violation of any of the following provisions shall be
required to register pursuant to this section:
(A) Assault with intent to commit rape, sodomy, oral copulation,
or any violation of Section 264.1, 288, or 289 under Section 220.
(B) Any offense defined in paragraph (1), (2), (3), (4), or (6) of
subdivision (a) of Section 261, Section 264.1, 266c, or 267,
paragraph (1) of subdivision (b) of, or subdivision (c) or (d) of,
Section 286, Section 288 or 288.5, paragraph (1) of subdivision (b)
of, or subdivision (c) or (d) of, Section 288a, subdivision (a) of
Section 289, or Section 647.6.
(C) A violation of Section 207 or 209 committed with the intent to
violate Section 261, 286, 288, 288a, or 289.
(4) Prior to discharge or parole from the Department of
Corrections and Rehabilitation, any person who is subject to
registration under this subdivision shall be informed of the duty to
register under the procedures set forth in this section. Department
officials shall transmit the required forms and information to the
Department of Justice.
(5) All records specifically relating to the registration in the
custody of the Department of Justice, law enforcement agencies, and
other agencies or public officials shall be destroyed when the person
who is required to register has his or her records sealed under the
procedures set forth in Section 781 of the Welfare and Institutions
Code. This subdivision shall not be construed as requiring the
destruction of other criminal offender or juvenile records relating
to the case that are maintained by the Department of Justice, law
enforcement agencies, the juvenile court, or other agencies and
public officials unless ordered by a court under Section 781 of the
Welfare and Institutions Code.
(e) (1) On or after January 1, 1998, upon incarceration,
placement, or commitment, or prior to release on probation, any
person who is required to register under this section shall
preregister. The preregistering official shall be the admitting
officer at the place of incarceration, placement, or commitment, or
the probation officer if the person is to be released on probation.
The preregistration shall consist of all of the following:
(A) A preregistration statement in writing, signed by the person,
giving information that shall be required by the Department of
Justice.
(B) The fingerprints and a current photograph of the person.
(C) Any person who is preregistered pursuant to this subdivision
is required to be preregistered only once.
(2) A person described in paragraph (2) of subdivision (a) shall
register, or reregister if the person has previously registered, upon
release from incarceration, placement, commitment, or release on
probation pursuant to paragraph (1) of subdivision (a). The
registration shall consist of all of the following:
(A) A statement in writing signed by the person, giving
information as shall be required by the Department of Justice and
giving the name and address of the person's employer, and the address
of the person's place of employment if that is different from the
employer's main address.
(B) The fingerprints and a current photograph of the person taken
by the registering official.
(C) The license plate number of any vehicle owned by, regularly
driven by, or registered in the name of the person.
(D) Notice to the person that, in addition to the requirements of
paragraph (4), he or she may have a duty to register in any other
state where he or she may relocate.
(E) Copies of adequate proof of residence, which shall be limited
to a California driver's license, California identification card,
recent rent or utility receipt, printed personalized checks or other
recent banking documents showing that person's name and address, or
any other information that the registering official believes is
reliable. If the person has no residence and no reasonable
expectation of obtaining a residence in the foreseeable future, the
person shall so advise the registering official and shall sign a
statement provided by the registering official stating that fact.
Upon presentation of proof of residence to the registering official
or a signed statement that the person has no residence, the person
shall be allowed to register. If the person claims that he or she has
a residence but does not have any proof of residence, he or she
shall be allowed to register but shall furnish proof of residence
within 30 days of the date he or she is allowed to register.
(3) Within three days thereafter, the preregistering official or
the registering law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the Department of Justice.
(f) (1) (A) Any person who was last registered at a residence
address pursuant to this section who changes his or her residence
address, whether within the jurisdiction in which he or she is
currently registered or to a new jurisdiction inside or outside the
state, shall, in person, within five working days of the move, inform
the law enforcement agency or agencies with which he or she last
registered of the move, the new address or transient location, if
known, and any plans he or she has to return to California.
(B) If the person does not know the new residence address or
location at the time of the move, the registrant shall, in person,
within five working days of the move, inform the last registering
agency or agencies that he or she is moving. The person shall later
notify the last registering agency or agencies, in writing, sent by
certified or registered mail, of the new address or location within
five working days of moving into the new residence address or
location, whether temporary or permanent.
(C) The law enforcement agency or agencies shall, within three
working days after receipt of this information, forward a copy of the
change of address information to the Department of Justice. The
Department of Justice shall forward appropriate registration data to
the law enforcement agency or agencies having local jurisdiction of
the new place of residence.
(2) If the person's new address is in a Department of Corrections
and Rehabilitation facility or state mental institution, an official
of the place of incarceration, placement, or commitment shall, within
90 days of receipt of the person, forward the registrant's change of
address information to the Department of Justice. The agency need
not provide a physical address for the registrant but shall indicate
that he or she is serving a period of incarceration or commitment in
a facility under the agency's jurisdiction. This paragraph shall
apply to persons received in a department facility or state mental
institution on or after January 1, 1999. The Department of Justice
shall forward the change of address information to the agency with
which the person last registered.
(3) If any person who is required to register pursuant to this
section changes his or her name, the person shall inform, in person,
the law enforcement agency or agencies with which he or she is
currently registered within five working days. The law enforcement
agency or agencies shall forward a copy of this information to the
Department of Justice within three working days of its receipt.
(g) (1) Any person who is required to register under this section
based on a misdemeanor conviction or juvenile adjudication who
willfully violates any requirement of this section is guilty of a
misdemeanor punishable by imprisonment in a county jail not exceeding
one year.
(2) Except as provided in paragraphs (5), (7), and (9), any person
who is required to register under this section based on a felony
conviction or juvenile adjudication who willfully violates any
requirement of this section or who has a prior conviction or juvenile
adjudication for the offense of failing to register under this
section and who subsequently and willfully violates any requirement
of this section is guilty of a felony and shall be punished by
imprisonment in the state prison for 16 months, or two or three
years.
If probation is granted or if the imposition or execution of
sentence is suspended, it shall be a condition of the probation or
suspension that the person serve at least 90 days in a county jail.
The penalty described in this paragraph shall apply whether or not
the person has been released on parole or has been discharged from
parole.
(3) Any person determined to be a mentally disordered sex offender
or who has been found guilty in the guilt phase of trial for an
offense for which registration is required under this section, but
who has been found not guilty by reason of insanity in the sanity
phase of the trial, or who has had a petition sustained in a juvenile
adjudication for an offense for which registration is required under
this section pursuant to subdivision (d), but who has been found not
guilty by reason of insanity, who willfully violates any requirement
of this section is guilty of a misdemeanor and shall be punished by
imprisonment in a county jail not exceeding one year. For any second
or subsequent willful violation of any requirement of this section,
the person is guilty of a felony and shall be punished by
imprisonment in the state prison for 16 months, or two or three
years.
(4) If, after discharge from parole, the person is convicted of a
felony or suffers a juvenile adjudication as specified in this
subdivision, he or she shall be required to complete parole of at
least one year, in addition to any other punishment imposed under
this subdivision. A person convicted of a felony as specified in this
subdivision may be granted probation only in the unusual case where
the interests of justice would best be served. When probation is
granted under this paragraph, the court shall specify on the record
and shall enter into the minutes the circumstances indicating that
the interests of justice would best be served by the disposition.
(5) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code, and who fails to verify his or her registration every 90 days
as required pursuant to subparagraph (E) of paragraph (1) of
subdivision (a), shall be punished by imprisonment in the state
prison, or in a county jail not exceeding one year.
(6) Except as otherwise provided in paragraph (5), any person who
is required to register or reregister pursuant to clause (i) of
subparagraph (C) of paragraph (1) of subdivision (a) and willfully
fails to comply with the requirement that he or she reregister no
less than every 30 days is guilty of a misdemeanor and shall be
punished by imprisonment in a county jail at least 30 days, but not
exceeding six months. A person who willfully fails to comply with the
requirement that he or she reregister no less than every 30 days
shall not be charged with this violation more often than once for a
failure to register in any period of 90 days. Any person who
willfully commits a third or subsequent violation of the requirements
of subparagraph (C) of paragraph (1) of subdivision
(a) that he or she reregister no less than
every 30 days shall be punished in accordance with either paragraph
(1) or (2) of this subdivision.
(7) Any person who fails to provide proof of residence as required
by subparagraph (E) of paragraph (2) of subdivision (e), regardless
of the offense upon which the duty to register is based, is guilty of
a misdemeanor punishable by imprisonment in a county jail not
exceeding six months.
(8) Any person who is required to register under this section who
willfully violates any requirement of this section is guilty of a
continuing offense as to each requirement he or she violated.
(9) In addition to any other penalty imposed under this
subdivision, the failure to provide information required on
registration and reregistration forms of the Department of Justice,
or the provision of false information, is a crime punishable by
imprisonment in a county jail for a period not exceeding one year.
(h) Whenever any person is released on parole or probation and is
required to register under this section but fails to do so within the
time prescribed, the parole authority or the court, as the case may
be, shall order the parole or probation of the person revoked. For
purposes of this subdivision, "parole authority" has the same meaning
as described in Section 3000.
(i) Except as otherwise provided by law, the statements,
photographs, and fingerprints required by this section shall not be
open to inspection by the public or by any person other than a
regularly employed peace officer or other law enforcement officer.
(j) In any case in which a person who would be required to
register pursuant to this section for a felony conviction is to be
temporarily sent outside the institution where he or she is confined
on any assignment within a city or county including firefighting,
disaster control, or of whatever nature the assignment may be, the
local law enforcement agency having jurisdiction over the place or
places where the assignment shall occur shall be notified within a
reasonable time prior to removal from the institution. This
subdivision shall not apply to any person who is temporarily released
under guard from the institution where he or she is confined.
(k) As used in this section, "mentally disordered sex offender"
includes any person who has been determined to be a sexual psychopath
or a mentally disordered sex offender under any provision which, on
or before January 1, 1976, was contained in Division 6 (commencing
with Section 6000) of the Welfare and Institutions Code.
(l) (1) Every person who, prior to January 1, 1997, is required to
register under this section, shall be notified whenever he or she
next reregisters of the reduction of the registration period from 14
to 5 working days. This notice shall be provided in writing by the
registering agency or agencies. Failure to receive this notification
shall be a defense against the penalties prescribed by subdivision
(g) if the person did register within 14 days.
(2) Every person who, as a sexually violent predator, as defined
in Section 6600 of the Welfare and Institutions Code, is required to
verify his or her registration every 90 days, shall be notified
wherever he or she next registers of his or her increased
registration obligations. This notice shall be provided in writing by
the registering agency or agencies. Failure to receive this notice
shall be a defense against the penalties prescribed by paragraph (5)
of subdivision (g).
(m) The registration provisions of this section are applicable to
every person described in this section, without regard to when his or
her crime or crimes were committed or his or her duty to register
pursuant to this section arose, and to every offense described in
this section, regardless of when it was committed.
(n) On or before January 1, 2010, the Department of Justice shall
renovate the VCIN to do the following:
(1) Correct all software deficiencies affecting data integrity and
include designated data fields for all mandated sex offender data.
(2) Consolidate and simplify program logic, thereby increasing
system performance and reducing system maintenance costs.
(3 Provide all necessary data storage, processing, and search
capabilities.
(4) Provide law enforcement agencies with full Internet access to
all sex offender data and photos.
(5) Incorporate a flexible design structure to readily meet future
demands for enhanced system functionality, including public Internet
access to sex offender information pursuant to Section 290.46.
SEC. 8. SEC. 12. Section 290.03 is
added to the Penal Code, to read:
290.03. (a) The Legislature finds and declares that a
comprehensive system of risk assessment, supervision, monitoring and
containment for registered sex offenders residing in California
communities is necessary to enhance public safety and reduce the risk
of recidivism posed by these offenders. The Legislature further
affirms and incorporates the following findings and declarations,
previously reflected in its enactment of "Megan's Law":
(1) Sex offenders pose a potentially high risk of committing
further sex offenses after release from incarceration or commitment,
and the protection of the public from reoffending by these offenders
is a paramount public interest.
(2) It is a compelling and necessary public interest that the
public have information concerning persons convicted of offenses
involving unlawful sexual behavior collected pursuant to Sections 290
and 290.4 to allow members of the public to adequately protect
themselves and their children from these persons.
(3) Persons convicted of these offenses involving unlawful sexual
behavior have a reduced expectation of privacy because of the public'
s interest in public safety.
(4) In balancing the offenders' due process and other rights
against the interests of public security, the Legislature finds that
releasing information about sex offenders under the circumstances
specified in the Sex Offender Punishment, Control, and Containment
Act of 2006 will further the primary government interest of
protecting vulnerable populations from potential harm.
(5) The registration of sex offenders, the public release of
specified information about certain sex offenders pursuant to
Sections 290 and 290.4, and public notice of the presence of certain
high risk sexual offenders in communities will further the
governmental interests of public safety and public scrutiny of the
criminal and mental health systems that deal with these offenders.
(6) To protect the safety and general welfare of the people of
this state, it is necessary to provide for continued registration of
sex offenders, for the public release of specified information
regarding certain more serious sex offenders, and for community
notification regarding high risk sex offenders who are about to be
released from custody or who already reside in communities in this
state. This policy of authorizing the release of necessary and
relevant information about serious and high risk sex offenders to
members of the general public is a means of assuring public
protection and shall not be construed as punitive.
(7) The Legislature also declares, however, that in making
information available about certain sex offenders to the public, it
does not intend that the information be used to inflict retribution
or additional punishment on any person convicted of a sexual offense.
While the Legislature is aware of the possibility of misuse, it
finds that the dangers to the public of nondisclosure far outweigh
the risk of possible misuse of the information. The Legislature is
further aware of studies in Oregon and Washington indicating that
community notification laws and public release of similar information
in those states have resulted in little criminal misuse of the
information and that the enhancement to public safety has been
significant.
(b) In enacting the Sex Offender Punishment, Control and
Containment Act of 2006, the Legislature hereby creates a
standardized, statewide system to identify, assess, monitor and
contain known sex offenders for the purpose of reducing the risk of
recidivism posed by these offenders, thereby protecting victims and
potential victims from future harm.
SEC. 9. SEC. 13. Section 290.04 is
added to the Penal Code, to read:
290.04. (a) Commencing on January 1, 2007, all adult males who
are required to register as a sex offender pursuant to Section 290
shall be subject to assessment by the STATIC-99 assessment tool. The
STATIC-99 and its successor instruments shall be the sole actuarial
risk assessment instrument used for registered sex offenders.
(b) The Department of Corrections and Rehabilitation, in
consultation with the Attorney General and local law enforcement,
shall establish and implement a schedule for conducting, no later
than January 1, 2012, STATIC-99 assessments of adult male registered
sex offenders living in California who no longer are in custody, on
probation, or on parole as of the effective date of this section.
These persons shall be administered a STATIC-99 assessment according
to the implementation schedule during their annual registration
update by persons authorized to administer the instrument. The
schedule adopted by the department shall give priority to assessing
those registrants with the most recent sex offense convictions. Any
adult male required to register as a sex offender pursuant to Section
290 may seek an assessment by a state agency before their
scheduled assessment period at his or her own cost as determined by
the department. These assessments shall be conducted in a manner
consistent with the requirements of this section.
(c) On or before January 1, 2010, the Department of Corrections
and Rehabilitation, in consultation with the Department of Mental
Health and experts in sex offender risk assessment and the use of
actuarial instruments in predicting sex offender risk, shall
periodically evaluate and update the STATIC-99 or its successor
instrument to ensure that California's standardized actuarial
assessment instrument for assessing sex offender risk reflects
reliable, objective and well-established protocols for predicting sex
offender risk of recidivism, has been scientifically validated with
multiple cross-validations, and is widely accepted by the courts.
(d) On or before January 1, 2008, the Department of Corrections
and Rehabilitation, in consultation with the Department of Mental
Health and experts in sex offender risk assessment and the use of
actuarial instruments in predicting sex offender risk, shall research
actuarial risk assessment tools for female and juvenile registered
sex offenders, and shall make recommendations to the Governor and to
the Legislature concerning the appropriate actuarial risk assessment
instrument to be used to assess those populations.
(e) On or before January 1, 2008, the Department of Corrections
and Rehabilitation, in consultation with the Department of Mental
Health and experts in sex offender risk assessment and the use of
actuarial instruments in predicting sex offender risk, shall
establish a training program for probation officers, parole officers,
and any other persons authorized by law to perform risk assessment.
The department shall use an expert in the field of risk assessment
and the use of actuarial instruments in predicting sex offender risk
to conduct periodic training. Probation departments and regional
parole officers shall designate persons within their organizations to
attend a yearly training and shall train others within their
organizations who are designated to perform risk assessments as
required or authorized by law.
SEC. 10. SEC. 14. Section 290.05 is
added to the Penal Code, to read:
290.05. (a) Commencing on January 1, 2007, and subject to the
provisions of Section 290.04, the actuarial risk assessment
instrument for adult males required to register as sex offenders
pursuant to Section 290 shall be the STATIC-99.
(b) There shall be four risk assessment tier levels assignable to
registered sex offenders under this instrument: low, moderate low,
moderate high, and high.
SEC. 11. SEC. 15. Section 290.06 is
added to the Penal Code, to read:
290.06. (a) Probation officers trained in the use of STATIC-99
shall perform a presentencing risk assessment of every adult male
convicted of an offense that requires him to register as a sex
offender pursuant to Section 290. Probation officers shall assign a
risk assessment tier level score to the assessment, and shall include
that score in a presentencing or probation officer's report.
Probation officers who conduct sex offender risk assessments shall be
trained in an approved program established pursuant to subdivision
(d) of Section 290.04, and shall receive updated training no less
frequently than every two years, as determined by the Department of
Corrections and Rehabilitation.
(b) (1) The designated probation officer shall compile a Facts of
Offense Sheet for every adult male convicted of an offense that
requires him to register as a sex offender under Section 290
containing the following information concerning the offender and his
offense: name; all known aliases; CII number; physical description;
criminal history, including registerable sex offenses, other
offenses, and arrests that did not result in conviction for sexual or
violent offenses; unique circumstances of the offense for which
registration is required, including but not limited to, weapons used
or victim pattern; risk assessment tier level; and type of victims
targeted in the past. The defendant may move the court to correct the
Facts of the Offense Sheet. Any corrections to the Facts of the
Offense Sheet offered by the defendant shall be made consistent with
Section 1204. The Facts of Offense Sheet shall be included in the
probation officer's report and shall also be forwarded to the
incarcerating agency, if any. A copy of the Facts of Offense Sheet
shall be sent by the probation department to the registering law
enforcement agency in the jurisdiction where the person will reside
on supervised probation within three days of the person's release on
probation. In addition, probation shall send a copy of the Facts of
Offense Sheet to the Department of Justice Sex Offender Tracking
Program within three days of the person's sex offense conviction, and
it shall be made part of the registered sex offender's file
maintained by the Sex Offender Tracking Program. The Facts of Offense
Sheet shall thereafter be made available to law enforcement by the
Department of Justice, which shall post it with the offender's record
on the Department of Justice Internet Web site maintained pursuant
to Section 290.46, and shall be accessible only to law enforcement.
(2) If the registered sex offender is sentenced to a period of
incarceration, at either the state prison or a county jail, the Facts
of Offense Sheet shall be sent by the Department of Corrections and
Rehabilitation or the county sheriff to the registering law
enforcement agency in the jurisdiction where the registered sex
offender will be paroled or will live on release, within three days
of the person's release. If the registered sex offender is committed
to the Department of Mental Health, the Facts of Offense Sheet shall
be sent by the Department of Mental Health to the registering law
enforcement agency in the jurisdiction where the person will live on
release, within three days of release.
SEC. 12. SEC. 16. Section 290.07 is
added to the Penal Code, to read:
290.07. (a) All adult males who have been convicted of an offense
for which they are required to register as a sex offender pursuant
to Section 290 and who are incarcerated in state prison or committed
to the Department of Mental Health shall be subject to sex offender
risk assessment pursuant to the provisions of this chapter. The
assessment shall take place at least four months, but no sooner than
10 months, prior to release from incarceration or commitment.
(b) The prerelease risk assessment shall be performed by the
Department of Corrections and Rehabilitation. Persons administering
the assessment shall be trained through an approved program
established pursuant to subdivision (d) of Section 290.04, and shall
receive updated training no less frequently than every two years as
determined by the Department of Corrections and Rehabilitation.
(c) Adult male registered sex offenders who, subsequent to their
conviction for a sex offense, are convicted of a separate criminal
offense resulting in incarceration or commitment, or which would
require a probation officer's report, but who have not been the
subject of a risk assessment, shall be assessed in accordance with
this chapter.
SEC. 13. SEC. 17. Section 290.08 is
added to the Penal Code, to read:
290.08. (a) Adult male registered sex offenders who are on
probation or parole as of the effective date of this section shall be
subject to a risk assessment using the STATIC-99. Adult male sex
offenders convicted in a jurisdiction other than California who are
required to register while living in California pursuant to Section
290, who are being supervised in California under an interstate
compact or who are on federal or military supervision in California,
shall be also be assessed. Those offenders who were assigned the
highest risk level under the STATIC-99 in the jurisdiction where they
were convicted shall be given priority in performing a new risk
assessment.
(b) Probation departments and the parole authority shall create
specialized caseloads for all sex offenders, and shall develop
expertise in sex offender management. Sex offenders assessed at high
risk levels shall be monitored by agents responsible for reduced
caseloads.
(c) The risk assessment tier level assigned to a registered sex
offender shall be used to determine the level of monitoring and
control on supervision.
SEC. 14. SEC. 18. Section 290.09 is
added to the Penal Code, to read:
290.09. (a) Notwithstanding any other law, any person authorized
and trained to perform STATIC-99 risk assessments shall be granted
access to all relevant records pertaining to a registered sex
offender, including but not limited to criminal histories, sex
offender registration records, police reports, probation and
pre-sentencing reports, judicial records and case files, juvenile
records, records maintained by Child Protective Services,
psychological evaluations and psychiatric hospital reports, sexually
violent predator treatment program reports, and records that have
been sealed by the courts or the Department of Justice. Records and
information obtained under this section shall not be subject to the
California Public Records Act, Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code.
(b) All state and local agencies and departments that maintain
records that contain information about registered sex offenders,
including but not limited to, the courts, probation, parole, law
enforcement agencies, the Department of Justice, district attorney's
and public defender's offices, and Child Protective Services, shall
maintain those records during the lifetime of the registered sex
offender.
SEC. 19. 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 two
three hundred dollars ($200)
($300) upon the first conviction or a fine of three
five hundred dollars ($300)
($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) 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 or the Department of the Youth
Authority 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 or the Department of the
Youth Authority department . All moneys
collected by the Department of Corrections or the Department
of the Youth Authority department 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 fund SAFE teams pursuant to Chapter 9.7 (commencing
with Section 13887) of Title 6 of Part 4.
SEC. 15. SEC. 20. Section 290.46 of
the Penal Code is amended to read:
290.46. (a) On or before the dates specified in this section, the
Department of Justice shall make available information concerning
persons who are required to register pursuant to Section 290 to the
public via an Internet Web site as specified in this section. The
department shall update the Internet Web site on an ongoing basis.
All information identifying the victim by name, birth date, address,
or relationship to the registrant shall be excluded from the Internet
Web site. The name or address of the person's employer and the
listed person's criminal history other than the specific crimes for
which the person is required to register shall not be included on the
Internet Web site. The Web site shall display the risk assessment
tier level for each posted registrant who has been assessed by the
STATIC-99. If no risk assessment has been done, the Web site shall
state, "Risk Level-Not Yet Assessed." The Department of Corrections
and Rehabilitation and the Department of Mental Health shall provide
the risk assessment tier level for each registered sex offender
assessed to the Department of Justice Sex Offender Tracking Program
at least two months prior to release from incarceration or
commitment. Probation departments shall provide the risk assessment
tier level for each registered sex offender under their jurisdiction
to the Department of Justice Sex Offender Tracking Program no later
than three days following release on probation. The Department of
Mental Health shall provide to the Department of Justice Sex Offender
Tracking Program the names of all persons committed to its custody
pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of
Part 2 of Division 6 of the Welfare and Institutions Code, within 30
days of commitment, and shall provide the names of all of those
persons released from its custody within five working days of
release. The Department of Corrections and Rehabilitation shall
provide the actual release date of each registered sex offender to
the Department of Justice Sex Offender Tracking Program within five
days of release or as soon as practicable thereafter. The Web site
shall display the date of conviction and the date of release from
incarceration or commitment for each posted registrant. The Web site
shall also post, in a separate section from those listing current
registered sex offenders, the names and reported state of
destination, if any, of former registrants who have been deported or
moved out of state. The Internet Web site shall be translated into
languages other than English as determined by the department.
(b) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in, or who is described in, paragraph (2),
the Department of Justice shall make available to the public via the
Internet Web site his or her name and known aliases, a photograph, a
physical description, including gender and race, date of birth,
criminal history, prior
adjudication as a sexually violent predator, the
address at which the person resides, and any other information that
the Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a).
(2) This subdivision shall apply to the following offenses and
offenders:
(A) Section 207 committed with intent to violate Section 261, 286,
288, 288a, or 289.
(B) Section 209 committed with intent to violate Section 261, 286,
288, 288a, or 289.
(C) Paragraph (2) or (6) of subdivision (a) of Section 261.
(D) Section 264.1.
(E) Section 269.
(F) Subdivision (c) or (d) of Section 286.
(G) Subdivision (a), (b), or (c) of Section 288, provided that the
offense is a felony.
(H) Subdivision (c) or (d) of Section 288a.
(I) Section 288.5 or 288.7.
(J) Subdivision (a) or (j) of Section 289.
(K) Any person who has ever been adjudicated a sexually violent
predator as defined in Section 6600 of the Welfare and Institutions
Code.
(c) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in paragraph (2), the Department of
Justice shall make available to the public via the Internet Web site
his or her name and known aliases, a photograph, a physical
description, including gender and race, date of birth, criminal
history, the community of residence and ZIP Code in which the person
resides or the county in which the person is registered as a
transient, and any other information that the Department of Justice
deems relevant, but not the information excluded pursuant to
subdivision (a). On or before July 1, 2006, the Department of Justice
shall determine whether any person convicted of an offense listed in
paragraph (2) also has one or more prior or subsequent convictions
of an offense listed in paragraph (2) of subdivision (a) of Section
290, and, for those persons, the Department of Justice shall make
available to the public via the Internet Web site the address at
which the person resides. However, the address at which the person
resides shall not be disclosed until a determination is made that the
person is, by virtue of his or her additional prior or subsequent
conviction of an offense listed in paragraph (2) of subdivision (a)
of Section 290, subject to this subdivision.
(2) This subdivision shall apply to the following offenses:
(A) Section 220, except assault to commit mayhem.
(B) Paragraph (1), (3), or (4) of subdivision (a) of Section 261.
(C) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 286.
(D) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 288a.
(E) Subdivision (b), (d), (e), or (i) of Section 289.
(d) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission of
any of the offenses listed in, or who is described in, this
subdivision, the Department of Justice shall make available to the
public via the Internet Web site his or her name and known aliases, a
photograph, a physical description, including gender and race, date
of birth, criminal history, the community of residence and ZIP Code
in which the person resides or the county in which the person is
registered as a transient, and any other information that the
Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a) or the address at which the
person resides.
(2) This subdivision shall apply to the following offenses and
offenders:
(A) Subdivision (a) of Section 243.4, provided that the offense is
a felony.
(B) Section 266, provided that the offense is a felony.
(C) Section 266c, provided that the offense is a felony.
(D) Section 266j.
(E) Section 267.
(F) Subdivision (c) of Section 288, provided that the offense is a
misdemeanor.
(G) Section 626.83 or 647.6.
(H) Any person required to register pursuant to Section 290 based
upon an out-of-state conviction, unless that person is excluded from
the Internet Web site pursuant to subdivision (e). However, if the
Department of Justice has determined that the out-of-state crime, if
committed or attempted in this state, would have been punishable in
this state as a crime described in subparagraph (A) of paragraph (2)
of subdivision (a) of Section 290, the person shall be placed on the
Internet Web site as provided in subdivision (b) or (c), as
applicable to the crime.
(e) (1) If a person has been convicted of the commission or the
attempted commission of any of the offenses listed in this
subdivision, and he or she has been convicted of no other offense
listed in subdivision (b), (c), or (d) other than those listed in
this subdivision, that person may file an application with the
Department of Justice, on a form approved by the department, for
exclusion from the Internet Web site. If the department determines
that the person meets the requirements of this subdivision, the
department shall grant the exclusion and no information concerning
the person shall be made available via the Internet Web site
described in this section. He or she bears the burden of proving the
facts that make him or her eligible for exclusion from the Internet
Web site. However, a person who has filed for or been granted an
exclusion from the Internet Web site is not relieved of his or her
duty to register as a sex offender pursuant to Section 290 nor from
any otherwise applicable provision of law.
(2) This subdivision shall apply to the following offenses:
(A) A felony violation of subdivision (a) of Section 243.4.
(B) Section 647.6, if the offense is a misdemeanor, and the person
has a risk assessment level of low or moderate low.
(C) (i) An offense for which the offender successfully completed
probation, provided that the offender submits to the department a
certified copy of a probation report, presentencing report, report
prepared pursuant to Section 288.1, or other official court document
that clearly demonstrates both of the following:
(I) The offender was the victim's parent, stepparent, sibling, or
grandparent.
(II) The crime did not involve either oral copulation or
penetration of the vagina or rectum of either the victim or the
offender by the penis of the other or by any foreign object.
(ii) An offense for which the offender is on probation at the time
of his or her application, provided that the offender submits to the
department a certified copy of a probation report, presentencing
report, report prepared pursuant to Section 288.1, or other official
court document that clearly demonstrates both of the following:
(I) The offender was the victim's parent, stepparent, sibling, or
grandparent.
(II) The crime did not involve either oral copulation or
penetration of the vagina or rectum of either the victim or the
offender by the penis of the other or by any foreign object.
(iii) If, subsequent to his or her application, the offender
commits a violation of probation resulting in his or her
incarceration in county jail or state prison, his or her exclusion,
or application for exclusion, from the Internet Web site shall be
terminated.
(iv) For the purposes of this subparagraph, "successfully
completed probation" means that during the period of probation the
offender neither received additional county jail or state prison time
for a violation of probation nor was convicted of another offense
resulting in a sentence to county jail or state prison.
(3) The department shall periodically review the list of those
persons excluded pursuant to this subdivision. If it determines that
a person who was granted an exclusion under a former version of this
subdivision would not qualify for an exclusion under the current
version of this subdivision, the department shall rescind the
exclusion, make a reasonable effort to provide notification to the
person that the exclusion has been rescinded, and, no sooner than 30
days after notification is attempted, make information about the
offender available to the public on the Internet Web site as provided
in this section.
(f) The Department of Justice shall make a reasonable effort to
provide notification to persons who have been convicted of the
commission or attempted commission of an offense specified in
subdivision (b), (c), or (d), that on or before July 1, 2005, the
department is required to make information about specified sex
offenders available to the public via an Internet Web site as
specified in this section. The Department of Justice shall also make
a reasonable effort to provide notice that some offenders are
eligible to apply for exclusion from the Internet Web site.
(g) (1) A designated law enforcement entity, as defined in
subdivision (f) of Section 290.45, may make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in paragraph
(2).
(2) The law enforcement entity may make available by way of an
Internet Web site the information described in subdivision (c) if it
determines that the public disclosure of the information about a
specific offender by way of the entity's Internet Web site is
necessary to ensure the public safety based upon information
available to the entity concerning that specific offender.
(3) The information that may be provided pursuant to this
subdivision may include the information specified in subdivision (b)
of Section 290.45. However, that offender's address may not be
disclosed unless he or she is a person whose address is on the
Department of Justice's Internet Web site pursuant to subdivision (b)
or (c).
(h) For purposes of this section, "offense" includes the statutory
predecessors of that offense, or any offense committed in another
jurisdiction that, if committed or attempted to be committed in this
state, would have been punishable in this state as an offense listed
in subparagraph (A) of paragraph (2) of subdivision (a) of Section
290.
(i) Notwithstanding Section 6254.5 of the Government Code,
disclosure of information pursuant to this section is not a waiver of
exemptions under Chapter 3.5 (commencing with Section 6250) of Title
1 of Division 7 of the Government Code and does not affect other
statutory restrictions on disclosure in other situations.
(j) (1) Any person who uses information disclosed pursuant to this
section to commit a misdemeanor shall be subject to, in addition to
any other penalty or fine imposed, a fine of not less than ten
thousand dollars ($10,000) and not more than fifty thousand dollars
($50,000).
(2) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment in the state prison.
(k) Any person who is required to register pursuant to Section 290
who enters an Internet Web site established pursuant to this section
shall be punished by a fine not exceeding one thousand dollars
($1,000), imprisonment in a county jail for a period not to exceed
six months, or by both that fine and imprisonment.
(l) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.
(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment.
(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105 and
11105.3, Section 8808 of the Family Code, Sections 777.5 and 14409.2
of the Financial Code, Sections 1522.01 and 1596.871 of the Health
and Safety Code, and Section 432.7 of the Labor Code.
(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a court
sitting without a jury, not exceeding three times the amount of
actual damage, and not less than two hundred fifty dollars ($250),
and attorney's fees, exemplary damages, or a civil penalty not
exceeding twenty-five thousand dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of misuse of
the information available via an Internet Web site established
pursuant to this section in violation of paragraph (2), the Attorney
General, any district attorney, or city attorney, or any person
aggrieved by the misuse is authorized to bring a civil action in the
appropriate court requesting preventive relief, including an
application for a permanent or temporary injunction, restraining
order, or other order against the person or group of persons
responsible for the pattern or practice of misuse. The foregoing
remedies shall be independent of any other remedies or procedures
that may be available to an aggrieved party under other provisions of
law, including Part 2 (commencing with Section 43) of Division 1 of
the Civil Code.
(m) The public notification provisions of this section are
applicable to every person described in this section, without regard
to when his or her crimes were committed or his or her duty to
register pursuant to Section 290 arose, and to every offense
described in this section, regardless of when it was committed.
(n) On or before July 1, 2006, and every year thereafter, the
Department of Justice shall make a report to the Legislature
concerning the operation of this section.
(o) A designated law enforcement entity and its employees shall be
immune from liability for good faith conduct under this section.
(p) The Attorney General, in collaboration with local law
enforcement and others knowledgeable about sex offenders, shall
develop strategies to assist members of the public in understanding
and using publicly available information about registered sex
offenders to further public safety. These strategies may include but
are not limited to a hotline for community inquiries, neighborhood
and business guidelines for how to respond to information posted on
this Web site, and any other resource that promotes public education
about these offenders.
SEC. 16. SEC. 21. Section 311.4 of
the Penal Code is amended to read:
311.4. (a) Every person who, with knowledge that a person is a
minor, or who, while in possession of any facts on the basis of which
he or she should reasonably know that the person is a minor, hires,
employs, or uses the minor to do or assist in doing any of the acts
described in Section 311.2, is, for a first offense, guilty of a
misdemeanor. If the person has previously been convicted of any
violation of this section, the court may, in addition to the
punishment authorized in Section 311.9, impose a fine not exceeding
fifty thousand dollars ($50,000).
(b) Every person who, with knowledge that a person is a minor
under the age of 18 years, or who, while in possession of any facts
on the basis of which he or she should reasonably know that the
person is a minor under the age of 18 years, knowingly promotes,
employs, uses, persuades, induces, or coerces a minor under the age
of 18 years, or any parent or guardian of a minor under the age of 18
years under his or her control who knowingly permits the minor, to
engage in or assist others to engage in either posing or modeling
alone or with others for purposes of preparing any 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, filmstrip, or a live performance involving,
sexual conduct by a minor under the age of 18 years alone or with
other persons or animals, for commercial purposes, is guilty of a
felony and shall be punished by imprisonment in the state prison for
three, six, or eight years.
(c) Every person who, with knowledge that a person is a minor
under the age of 18 years, or who, while in possession of any facts
on the basis of which he or she should reasonably know that the
person is a minor under the age of 18 years, knowingly promotes,
employs, uses, persuades, induces, or coerces a minor under the age
of 18 years, or any parent or guardian of a minor under the age of 18
years under his or her control who knowingly permits the minor, to
engage in or assist others to engage in either posing or modeling
alone or with others for purposes of preparing any 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, filmstrip, or a live performance involving,
sexual conduct by a minor under the age of 18 years alone or with
other persons or animals, is guilty of a felony. It is not necessary
to prove commercial purposes in order to establish a violation of
this subdivision. A violation of this subdivision is separate and
distinct from a violation of subdivision (b).
(d) (1) As used in subdivisions (b) and (c), "sexual conduct"
means any of the following, whether actual or simulated: sexual
intercourse, oral copulation, anal intercourse, anal oral copulation,
masturbation, bestiality, sexual sadism, sexual masochism,
penetration of the vagina or rectum by any object in a lewd or
lascivious manner, exhibition of the genitals or pubic or rectal area
for the purpose of sexual stimulation of the viewer, any lewd or
lascivious sexual act as defined in Section 288, or excretory
functions performed in a lewd or lascivious manner, whether or not
any of the above conduct is performed alone or between members of the
same or opposite sex or between humans and animals. An act is
simulated when it gives the appearance of being sexual conduct.
(2) As used in subdivisions (b) and (c), "matter" means any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, or any other computer-related equipment or computer-generated
image that contains or incorporates in any manner, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, or
video laser disc.
(e) This section does not apply to a legally emancipated minor or
to lawful conduct between spouses if one or both are under the age of
18.
(f) In every prosecution under this section involving a minor
under the age of 14 years at the time of the offense, the age of the
victim shall be pled and proven for the purpose of the enhanced
penalty provided in Section 647.6. Failure to plead and prove that
the victim was under the age of 14 years at the time of the offense
is not a bar to prosecution under this section if it is proven that
the victim was under the age of 18 years at the time of the offense.
SEC. 17. SEC. 22. Section 311.11 of
the Penal Code is amended to read:
311.11. (a) (1) 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 by a fine not exceeding two thousand five hundred
dollars ($2,500), or by both the fine and imprisonment.
(2) If that matter depicts a minor who is prepubescent, the person
is guilty of a misdemeanor or felony.
(3) If that matter depicts a minor who is prepubescent and the
person intends to distribute or exchange the matter with another
person, regardless of commercial intent, the person is guilty of a
felony.
(b) Every person who commits a violation of subdivision (a) and
who has been previously convicted of a violation of this section, or
of an offense described in subparagraph (A) of paragraph (2) of
subdivision (a) of Section 290, or an attempt to commit any of those
offenses, 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. 18. SEC. 23. Section 311.12 is
added to the Penal Code, to read:
311.12. Any monetary assets gained from the production,
publication, sale, distribution, exchange, or control of any matter
that depicts a minor under 18 years of age that is unlawful pursuant
to Section 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, or 311.11, is
subject to forfeiture, upon conviction for a violation of one of
those sections. Upon petition by the prosecuting attorney, at any
time following sentencing for a violation of one of those sections,
the court shall conduct a hearing to determine the amount of monetary
assets that are subject to forfeiture. The Civil Discovery Act of
1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title
3 of Part 4 of the Code of Civil Procedure) applies to that hearing.
SEC. 19. SEC. 24. Section 626.8 of
the Penal Code is amended to read:
626.8. (a) Any person who comes into any school building or upon
any school ground, or street, sidewalk, or public way adjacent
thereto, without lawful business thereon, and whose presence or acts
interfere with the peaceful conduct of the activities of the school
or disrupt the school or its pupils or school activities, unless the
person is a parent or guardian of a child attending that school, or
is a student at the school or has prior written permission for the
entry from the chief administrative officer of that school, is guilty
of a misdemeanor if he or she does any of the following:
(1) Remains there after being asked to leave by the chief
administrative official of that school or his or her designated
representative, or by a person employed as a member of a security or
police department of a school district pursuant to Section 39670 of
the Education Code, or a city police officer, or sheriff or deputy
sheriff, or a Department of the California Highway Patrol peace
officer.
(2) Reenters or comes upon that place within seven days of being
asked to leave by a person specified in paragraph (1).
(3) Has otherwise established a continued pattern of unauthorized
entry.
This section shall not be utilized to impinge upon the lawful
exercise of constitutionally protected rights of freedom of speech or
assembly.
(b) Punishment for violation of this section shall be as follows:
(1) Upon a first conviction by a fine of not exceeding five
hundred dollars ($500), by imprisonment in the county jail for a
period of not more than six months, or by both the fine and
imprisonment.
(2) If the defendant has been previously convicted once of a
violation of any offense defined in this chapter or Section 415.5, by
imprisonment in the county jail for a period of not less than 10
days or more than six months, or by both imprisonment and a fine of
not exceeding five hundred dollars ($500), and shall not be released
on probation, parole, or any other basis until he or she has served
not less than 10 days.
(3) If the defendant has been previously convicted two or more
times of a violation of any offense defined in this chapter or
Section 415.5, by imprisonment in the county jail for a period of not
less than 90 days or more than six months, or by both imprisonment
and a fine of not exceeding five hundred dollars ($500), and shall
not be released on probation, parole, or any other basis until he or
she has served not less than 90 days.
(c) As used in this section, the following definitions apply:
(1) "Lawful business" means a reason for being present upon school
property which is not otherwise prohibited by statute, by ordinance,
or by any regulation adopted pursuant to statute or ordinance.
(2) "Continued pattern of unauthorized entry" means that on at
least two prior occasions in the same school year the defendant came
into any school building or upon any school ground, or street,
sidewalk, or public way adjacent thereto, without lawful business
thereon, and his or her presence or acts interfered with the peaceful
conduct of the activities of the school or disrupted the school or
its pupils or school activities, and the defendant was asked to leave
by a person specified in paragraph (1) of subdivision (a).
(3) "School" means any preschool or school having any of grades
kindergarten through 12.
(d) When a person is directed to leave pursuant to paragraph (1)
of subdivision (a), the person directing him or her to leave shall
inform the person that if he or she reenters the place within seven
days he or she will be guilty of a crime.
SEC. 20. SEC. 25. Section 626.83 is
added to the Penal Code, to read:
626.83. (a) Any person who has been convicted of a crime listed
in subparagraph (A) of paragraph (2) of subdivision (a) of Section
290, who comes into any school building or upon any school ground,
without lawful business thereon or written permission from the chief
administrative official of that school, or who loiters about any
street, sidewalk, or public way adjacent
to any school building, school grounds, public
playground, or other youth recreational facility where minors are
present without lawful business thereon, is guilty of a misdemeanor.
(b) Any person who has been convicted of a crime listed in
subparagraph (A) of paragraph (2) of subdivision (a) of Section 290
where the victim was an elderly or dependent person, as defined in
Section 288, who comes onto any property where elderly or dependent
persons reside without lawful business thereon or written permission
from the director of the facility, is guilty of a misdemeanor.
(c) Punishment for violation of this section shall be as follows:
(1) Upon a first conviction by a fine of not exceeding five
hundred dollars ($500), by imprisonment in a county jail for a period
of not more than six months, or by both the fine and imprisonment.
(2) If the defendant has been previously convicted once of a
violation of this section, by imprisonment in a county jail for a
period of not less than 10 days or more than six months, or by both
imprisonment and a fine of not exceeding five hundred dollars ($500),
and shall not be released on probation, parole, or any other basis
until he or she has served not less than 10 days.
(3) If the defendant has been previously convicted two or more
times of a violation of this section, by imprisonment in a county
jail for a period of not less than 90 days or more than six months,
or by both imprisonment and a fine of not exceeding five hundred
dollars ($500), and shall not be released on probation, parole, or
any other basis until he or she has served not less than 90 days.
(d) Local jurisdictions shall post signs at all relevant locations
informing the public of the provisions of this section.
SEC. 26. Section 647.6 of the Penal
Code is amended to read:
647.6. (a) (1) Every person who annoys or
molests any child under the age of 18 shall be punished by a fine not
exceeding one five thousand dollars
($1,000) ($5,000) , by imprisonment in
a county jail not exceeding one year, or by both the fine and
imprisonment.
(2) Every person who, motivated by an unnatural or abnormal sexual
interest in children, engages in conduct with an adult whom he or
she believes to be a child under 18 years of age, which conduct, if
directed toward a child under 18 years of age, would be a violation
of this section, shall be punished by a fine not exceeding five
thousand dollars ($5,000), by imprisonment in a county jail for up to
one year, or by both that fine and imprisonment.
(b) Every person who violates this section after having entered,
without consent, an inhabited dwelling house, or trailer coach as
defined in Section 635 of the Vehicle Code, or the inhabited portion
of any other building, shall be punished by imprisonment in the state
prison, or in a county jail not exceeding one year , and by a
fine not exceeding five thousand dollars ($5,000) .
(c) (1) Every person who violates this section shall be punished
upon the second and each subsequent conviction by imprisonment in the
state prison.
(2) Every person who violates this section after a previous felony
conviction under Section 261, 264.1, 269, 285, 286, 288a, 288.5, or
289, any of which involved a minor under the age of 16 years, or a
previous felony conviction under this section, a conviction under
Section 288, or a felony conviction under Section 311.4 involving a
minor under the age of 14 years shall be punished by imprisonment in
the state prison for two, four, or six years.
(d) (1) In any case in which a person is convicted of violating
this section and probation is granted, the court shall require
counseling as a condition of probation, unless the court makes a
written statement in the court record, that counseling would be
inappropriate or ineffective.
(2) In any case in which a person is convicted of violating this
section, and as a condition of probation, the court prohibits the
defendant from having contact with the victim, the court order
prohibiting contact shall not be modified except upon the request of
the victim and a finding by the court that the modification is in the
best interest of the victim. As used in this paragraph, "contact
with the victim" includes all physical contact, being in the presence
of the victim, communication by any means, any communication by a
third party acting on behalf of the defendant, and any gifts.
(e) Nothing in this section prohibits prosecution under any other
provision of law.
SEC. 27. 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 this act the act enacted during
the 2005- 06 Regular Session that amended this section
.
SEC. 28. 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 by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person
, as defined in subdivision (c) or (d) of Section 286
.
(5) Oral copulation by force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or
another person , as defined in subdivision
(c) or (d) of Section 288a.
(6) Lewd acts on a child under the age of 14 years
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) The offense Sexual penetration, as
defined in subdivision (a) or (j) of Section 289
where the act is accomplished against the victim's will by
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person .
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit mayhem, rape,
sodomy, or oral copulation 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) A 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 Secretary of the Department of Corrections
and Rehabilitation is incarcerated at a facility operated by
the Department of the Youth Authority
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. 29. Section 667.51 of the Penal
Code is amended to read:
667.51. (a) Any person who is found guilty
convicted of violating Section 288 or 288.5
shall receive a five-year enhancement for a prior conviction of an
offense listed specified in subdivision
(b) , provided that 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 that results in a felony
conviction .
(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
set forth specified in this
subdivision.
(c) Section 261, 264.1, 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 set forth
in this subdivision.
(d) A violation of Section 288 or 288.5
by a person who has been previously convicted two or more times
of an offense listed specified in
subdivision (c) is punishable as a felony (b)
shall be punished by imprisonment in the state prison for 15
years to life. However, if the two or more prior convictions
were for violations of Section 288, this subdivision is applicable
only if the current violation or at least one of the prior
convictions is for an offense other than a violation of subdivision
(a) of Section 288. For purposes of this subdivision, a prior
conviction is required to have been for charges brought and tried
separately. The provisions of Article 2.5 (commencing with Section
2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any
minimum term in a state prison imposed pursuant to this section, but
that person shall not otherwise be released on parole prior to that
time.
SEC. 30. Section 667.6 of the Penal
Code is amended to read:
667.6. (a) Any person who is found guilty of violating
paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261,
paragraph (1), (4), or (5) of subdivision (a) of Section 262, Section
264.1, subdivision (b) of Section 288, Section 288.5 or subdivision
(a) of Section 289, of committing sodomy in violation of subdivision
(k) of Section 286, of committing oral copulation in violation of
subdivision (k) of Section 288a, or of committing sodomy or oral
copulation in violation of Section 286 or 288a by force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person 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
provided that no enhancement shall be imposed under this subdivision
for any conviction occurring prior to a period of 10 years in which
the person remained free of both prison custody and the commission of
an offense which results in a felony conviction . In
addition to the five-year enhancement imposed under this subdivision,
the court also may impose a fine not to exceed twenty thousand
dollars ($20,000) for anyone sentenced under these 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.
(b) Any person who is convicted of an offense specified
in subdivision (a) (e) and who has
served two or more prior prison terms as defined in Section 667.5 for
any offense specified in subdivision (a) of
those offenses , shall receive a 10-year enhancement for each
of those prior terms provided that no additional enhancement
shall be imposed under this subdivision for any prison term served
prior to a period of 10 years in which the person remained free of
both prison custody and the commission of an offense which results in
a felony conviction . In addition to the 10-year
enhancement imposed under this subdivision, the court also may impose
a fine not to exceed twenty thousand dollars ($20,000) for any
person sentenced under this subdivision. 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.
(c) In lieu of the term provided in Section 1170.1, a full,
separate, and consecutive term may be imposed for each violation of
Section 220, other than an assault with intent to commit
mayhem, provided that the person has been convicted previously of
violating Section 220 for an offense other than an assault with
intent to commit mayhem, paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261, paragraph (1), (4), or (5) of
subdivision (a) of Section 262, Section 264.1, subdivision (b) of
Section 288, Section 288.5 or subdivision (a) of Section 289, of
committing sodomy in violation of subdivision (k) of Section 286, of
committing oral copulation in violation of subdivision (k) of Section
288a, or of committing sodomy or oral copulation in violation of
Section 286 or 288a by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person
whether or not the crimes were committed during a single transaction
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
served imposed for each violation of
Section 220, other than an assault with intent to commit mayhem,
provided that the person has been convicted previously of violating
Section 220 for an offense other than an assault with intent to
commit mayhem, paragraph (2), (3), (6), or (7) of subdivision (a) of
Section 261, paragraph (1), (4), or (5) of subdivision (a) of Section
262, Section 264.1, subdivision (b) of Section 288, subdivision (a)
of Section 289, of committing sodomy in violation of subdivision (k)
of Section 286, of committing oral copulation in violation of
subdivision (k) of Section 288a, or of committing sodomy or oral
copulation in violation of Section 286 or 288a by force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person 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 applies 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) A 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) If the court orders a fine to be imposed
pursuant to subdivision (a) or (b) 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. 31. Section 667.61 of the Penal
Code is amended to read:
667.61. (a) A 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 life and shall not be eligible for release on
parole for 25 years except as provided in subdivision (j)
25 years to life .
(b) Except as provided in subdivision (a), a 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 life and shall not be
eligible for release on parole for 15 years except as provided in
subdivision (j) 15 years to life .
(c) This section shall apply to any of the following offenses:
(1) A Rape, in violation of
paragraph (2) or (6) of subdivision (a) of Section 261.
(2) A Spousal rape, in violation of
paragraph (1) or (4) of subdivision (a) of Section 262.
(3) A 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) A Sexual penetration, in
violation of subdivision (a) of Section 289.
(6) Sodomy or oral copulation , in
violation of Section 286 or 288a by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person .
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(8) Oral copulation or sexual penetration by a perpetrator who is
an adult and the victim is 10 years of age or younger.
(9) A lewd or lascivious act, in
violation of subdivision (a) of Section 288 , unless the
defendant qualifies for probation under subdivision (c) of Section
1203.066 .
(10) 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, 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, as defined in subdivision (a) of Section 460, or during the
commission of a burglary of a building, including any commercial
establishment, which was then closed to the public, 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 by force, violence, or fear 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.
(9) The victim of an oral copulation was a child 10 years of age
or younger who was made to orally copulate the adult.
(10) The victim of sexual penetration was a child 10 years of age
or younger and the adult penetrated or caused the penetration of the
vagina or rectum of the child.
(f) If only the minimum number of circumstances specified in
subdivision (d) or (e) which 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 pu
nishment 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.
Notwithstanding
(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 .
(g)
(h) The term specified in subdivision (a) or (b) shall
be imposed on the defendant once for any offense or offenses
committed against a single victim during a single occasion. If there
are multiple victims during a single occasion, the term specified in
subdivision (a) or (b) shall be imposed on the defendant once for
each separate victim. Terms for other offenses committed during a
single occasion shall be imposed as authorized under any other law,
including Section 667.6, if applicable.
(h)Probation
(i) 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 for any offense specified in
paragraphs (1) to (6), inclusive, of subdivision (c) .
(i)For the penalties provided in this section to
(j) The penalties provided in this section shall
apply , only if the existence of
any fact required under circumstance
specified in subdivision (d) or (e) shall be
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.
(j) Article 2.5 (commencing with Section 2930) of Chapter 7 of
Title 1 of Part 3 shall apply to reduce the minimum term of 25 years
in the state prison imposed pursuant to subdivision (a) or 15 years
in the state prison imposed pursuant to subdivision (b). However, in
no case shall the minimum term of 25 or 15 years be reduced by more
than 15 percent for credits granted pursuant to Section 2933, 4019,
or any other law providing for conduct credit reduction. In no case
shall any person who is punished under this section be released on
parole prior to serving at least 85 percent of the minimum term of 25
or 15 years in the state prison.
SEC. 32. 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 listed specified in
subdivision (c) and who is convicted in the present proceeding of one
of those offenses.
(b) A habitual sexual offender is punishable
shall be punished by imprisonment in the state prison for
25 years to life. Article 2.5 (commencing with Section 2930)
of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum
term of 25 years in the state prison imposed pursuant to this
section. However, in no case shall the minimum term of 25 years be
reduced by more than 15 percent for credits granted pursuant to
Section 2933, 4019, or any other law providing for conduct credit
reduction. In no case shall any person who is punished under this
section be released on parole prior to serving at least 85 percent of
the minimum term of 25 years in the state prison.
(c) This section shall apply to any of the following offenses:
(1) A Rape, in violation of
paragraph (2) or (6) of subdivision (a) of Section 261.
(2) A Spousal rape, in violation of
paragraph (1) or (4) of subdivision (a) of Section 262.
(3) A 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) A Sexual penetration, in
violation of subdivision (a) or (j) of Section
289.
(6) A Continuous sexual abuse of a child,
in violation of Section 288.5.
(7) A Sodomy, in violation of
subdivision (c) or (d) of Section 286 by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person .
(8) A violation of subdivision (d) of Section 286.
(9) A
Oral copulation, in violation of subdivision (c) or (d) of
Section 288a by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person
.
(10)A
(9) Kidnapping, in violation of
subdivision (b) of Section 207.
(11)A
(10) Kidnapping, in violation of
former subdivision (d) of Section 208 (kidnapping to commit specified
sex offenses).
(12)
(11) Kidnapping in violation of subdivision (b) of
Section 209 with the intent to commit rape, spousal
rape, oral copulation, or sodomy or sexual penetration in violation
of Section 289 a specified sexual offense .
(13)A
(12) Aggravated sexual assault of a
child, in violation of Section 269.
(14)
(13) An offense committed in another
jurisdiction that has all includes all of
the elements of an offense specified in paragraphs (1)
to (13), inclusive, of 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
information accusatory pleading , and
either admitted by the defendant in open court, or found to be true
by the jury trying the issue of guilt or by the court where
guilt is established by a plea of guilty or nolo contendere or by
trial by court sitting without a jury trier of fact
.
SEC. 21. SEC. 33. Section 800 of the
Penal Code is amended to read:
800. (a) Except as provided in Section 799, prosecution for an
offense punishable by imprisonment in the state prison for eight
years or more shall be commenced within six years after commission of
the offense.
(b) Notwithstanding subdivision (a), prosecution for a violation
of subdivision (b) of Section 311.4 shall commence within 10 years of
the date of production of the pornographic material.
SEC. 34. 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 this act the act
enacted during the 2005- 06 Regular Session that amended
this section .
SEC. 22. SEC. 35. Section 1192.7 of
the Penal Code is amended to read:
1192.7. (a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a "one strike," "three strikes" or habitual sex
offender statute instead of engaging in plea bargaining over those
offenses.
(2) Plea bargaining in any case in which the indictment or
information charges any serious felony, any felony in which it is
alleged that a firearm was personally used by the defendant, or any
offense of driving while under the influence of alcohol, drugs,
narcotics, or any other intoxicating substance, or any combination
thereof, is prohibited, unless there is insufficient evidence to
prove the people's case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would not result in a
substantial change in sentence.
(3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining is prohibited unless there is insufficient evidence to
prove the people's case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would not result in a
substantial change in sentence. At the time of presenting the
agreement to the court, the district attorney shall state on the
record why a sentence under one of those sections was not sought.
(b) As used in this section "plea bargaining" means any
bargaining, negotiation, or discussion between a criminal defendant,
or his or her counsel, and a prosecuting attorney or judge, whereby
the defendant agrees to plead guilty or nolo contendere, in exchange
for any promises, commitments, concessions, assurances, or
consideration by the prosecuting attorney or judge relating to any
charge against the defendant or to the sentencing of the defendant.
(c) As used in this section, "serious felony" means any of the
following:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
sodomy by force, violence, duress, menace, threat of great bodily
injury, or fear of immediate and unlawful bodily injury on the victim
or another person; (5) oral copulation by force, violence, duress,
menace, threat of great bodily injury, or fear of immediate and
unlawful bodily injury on the victim or another person; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (15) exploding a destructive device or any
explosive with intent to injure; (16) exploding a destructive device
or any explosive causing bodily injury, great bodily injury, or
mayhem; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) robbery
or bank robbery; (20) kidnapping; (21) holding of a hostage by a
person confined in a state prison; (22) attempt to commit a felony
punishable by death or imprisonment in the state prison for life;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) selling, furnishing, administering, giving, or
offering to sell, furnish, administer, or give to a minor any heroin,
cocaine, phencyclidine (PCP), or any methamphetamine-related drug,
as described in paragraph (2) of subdivision (d) of Section 11055 of
the Health and Safety Code, or any of the precursors of
methamphetamines, as described in subparagraph (A) of paragraph (1)
of subdivision (f) of Section 11055 or subdivision (a) of Section
11100 of the Health and Safety Code; (25) any violation of
subdivision (a) of Section 289 where the act is accomplished against
the victim's will by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) assault with a deadly weapon, firearm, machinegun, assault
weapon, or semiautomatic firearm or assault on a peace officer or
firefighter, in violation of Section 245; (32) assault with a deadly
weapon against a public transit employee, custodial officer, or
school employee, in violation of Sections 245.2, 245.3, or 245.5;
(33) discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 12034; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(d) As used in this section, "bank robbery" means to take or
attempt to take, by force or violence, or by intimidation from the
person or presence of another any property or money or any other
thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings
and loan association.
As used in this subdivision, the following terms have the
following meanings:
(1) "Bank" means any member of the Federal Reserve System, and any
bank, banking association, trust company, savings bank, or other
banking institution organized or operating under the laws of the
United States, and any bank the deposits of which are insured by the
Federal Deposit Insurance Corporation.
(2) "Savings and loan association" means any federal savings and
loan association and any "insured institution" as defined in Section
401 of the National Housing Act, as amended, and any federal credit
union as defined in Section 2 of the Federal Credit Union Act.
(3) "Credit union" means any federal credit union and any
state-chartered credit union the accounts of which are insured by the
Administrator of the National Credit Union administration.
(e) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
SEC. 23. SEC. 36. Section 1202.8 of
the Penal Code is amended to read:
1202.8. (a) Persons placed on probation by a court shall be under
the supervision of the county probation officer who shall determine
both the level and type of supervision consistent with the
court-ordered conditions of probation. Each county shall designate
certain probation officers to monitor registered sex offenders, as
specified in subdivision (b) of Section 290.08. Those probationers
shall be required to report more frequently to one of those
designated probation officers than any other probationer is required
to report, and shall be subject to intensive scrutiny by
subject to active and intense supervision by that
designated officer.
(b) Within 30 days of a court making an order to provide
restitution to a victim or to the Restitution Fund, the probation
officer shall establish an account into which any restitution
payments that are not deposited into the Restitution Fund shall be
deposited.
SEC. 24. SEC. 37. Section 1203 of
the Penal Code is amended to read:
1203. (a) As used in this code, "probation" means the suspension
of the imposition or execution of a sentence and the order of
conditional and revocable release in the community under the
supervision of a probation officer. As used in this code,
"conditional sentence" means the suspension of the imposition or
execution of a sentence and the order of revocable release in the
community subject to conditions established by the court without the
supervision of a probation officer. It is the intent of the
Legislature that both conditional sentence and probation are
authorized whenever probation is authorized in any code as a
sentencing option for infractions or misdemeanors.
(b) (1) Except as provided in subdivision (j), if a person is
convicted of a felony and is eligible for probation, before judgment
is pronounced, the court shall immediately refer the matter to a
probation officer to investigate and report to the court, at a
specified time, upon the circumstances surrounding the crime and the
prior history and record of the person, which may be considered
either in aggravation or mitigation of the punishment.
(2) (A) The probation officer shall immediately investigate and
make a written report to the court of his or her findings and
recommendations, including his or her recommendations as to the
granting or denying of probation and the conditions of probation, if
granted.
(B) Pursuant to Section 828 of the Welfare and Institutions Code,
the probation officer shall include in his or her report any
information gathered by a law enforcement agency relating to the
taking of the defendant into custody as a minor, which shall be
considered for purposes of determining whether adjudications of
commissions of crimes as a juvenile warrant a finding that there are
circumstances in aggravation pursuant to Section 1170 or to deny
probation.
(C) If the person is convicted of a felony specified in
subparagraph (A) of paragraph (2) of subdivision (a) of Section 290,
the probation officer shall administer the STATIC-99, as set forth in
Section 290.06, in order to determine the person's risk of
reoffending.
(D) The probation officer shall also include in the report his or
her recommendation of both of the following:
(i) The amount the defendant should be required to pay as a
restitution fine pursuant to subdivision (b) of Section 1202.4.
(ii) Whether the court shall require, as a condition of probation,
restitution to the victim or to the Restitution Fund and the amount
thereof.
(E) The report shall be made available to the court and the
prosecuting and defense attorneys at least five days, or upon request
of the defendant or prosecuting attorney, nine days prior to the
time fixed by the court for the hearing and determination of the
report, and shall be filed with the clerk of the court as a record in
the case at the time of the hearing. The time within which the
report shall be made available and filed may be waived by written
stipulation of the prosecuting and defense attorneys that is filed
with the court or an oral stipulation in open court that is made and
entered upon the minutes of the court.
(3) At a time fixed by the court, the court shall hear and
determine the application, if one has been made, or, in any case, the
suitability of probation in the particular case. At the hearing, the
court shall consider any report of the probation officer, including
the results of the STATIC-99 assessment, and shall make a statement
that it has considered the report which shall be filed with the clerk
of the court as a record in the case. If the court determines that
there are circumstances in mitigation of the punishment prescribed by
law or that the ends of justice would be served by granting
probation to the person, it may place the person on probation. If
probation is denied, the clerk of the court shall immediately send a
copy of the report to the Department of Corrections and
Rehabilitation at the prison or other institution to which the person
is delivered.
(4) The preparation of the report or the consideration of the
report by the court may be waived only by a written stipulation of
the prosecuting and defense attorneys that is filed with the court or
an oral stipulation in open court that is made and entered upon the
minutes of the court, except that there shall be no waiver unless the
court consents thereto. However, if the defendant is ultimately
sentenced and committed to the state prison, a probation report shall
be completed pursuant to Section 1203c.
(c) If a defendant is not represented by an attorney, the court
shall order the probation officer who makes the probation report to
discuss its contents with the defendant.
(d) If a person is convicted of a misdemeanor, the court may
either refer the matter to the probation officer for an investigation
and a report or summarily pronounce a conditional sentence. If the
crime requires the person to register as a sex offender pursuant to
Section 290, the probation officer shall administer the STATIC-99, as
set forth in Section 290.06, in order to determine the person's risk
of reoffending. If the case is not referred to the probation
officer, in sentencing the person, the court may consider any
information concerning the person that could have been included in a
probation report. The court shall inform the person of the
information to be considered and permit him or her to answer or
controvert the information. For this purpose, upon the request of the
person, the court shall grant a continuance before the judgment is
pronounced.
(e) 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 of the following persons:
(1) Unless the person had a lawful right to carry a deadly weapon,
other than a firearm, at the time of the perpetration of the crime
or his or her arrest, any person who has been convicted of arson,
robbery, carjacking, burglary, burglary with explosives, rape with
force or violence, torture, aggravated mayhem, murder, attempt to
commit murder, trainwrecking, kidnapping, escape from the state
prison, or a conspiracy to commit one or more of those crimes and who
was armed with the weapon at either of those times.
(2) Any person who used, or attempted to use, a deadly weapon upon
a human being in connection with the perpetration of the crime of
which he or she has been convicted.
(3) Any person who willfully inflicted great bodily injury or
torture in the perpetration of the crime of which he or she has been
convicted.
(4) Any person who has been previously convicted twice in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony.
(5) Unless the person has never been previously convicted once in
this state of a felony or in any other place of a public offense
which, if committed in this state, would have been punishable as a
felony, any person who has been convicted of burglary with
explosives, rape with force or violence, torture, aggravated mayhem,
murder, attempt to commit murder, trainwrecking, extortion,
kidnapping, escape from the state prison, a violation of Section 286,
288, 288a, or 288.5, or a conspiracy to commit one or more of those
crimes.
(6) Any
person who has been previously convicted once in this state of a
felony or in any other place of a public offense which, if committed
in this state, would have been punishable as a felony, if he or she
committed any of the following acts:
(A) Unless the person had a lawful right to carry a deadly weapon
at the time of the perpetration of the previous crime or his or her
arrest for the previous crime, he or she was armed with a weapon at
either of those times.
(B) The person used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the previous
crime.
(C) The person willfully inflicted great bodily injury or torture
in the perpetration of the previous crime.
(7) Any public official or peace officer of this state or any
city, county, or other political subdivision who, in the discharge of
the duties of his or her public office or employment, accepted or
gave or offered to accept or give any bribe, embezzled public money,
or was guilty of extortion.
(8) Any person who knowingly furnishes or gives away
phencyclidine.
(9) Any person who intentionally inflicted great bodily injury in
the commission of arson under subdivision (a) of Section 451 or who
intentionally set fire to, burned, or caused the burning of, an
inhabited structure or inhabited property in violation of subdivision
(b) of Section 451.
(10) Any person who, in the commission of a felony, inflicts great
bodily injury or causes the death of a human being by the discharge
of a firearm from or at an occupied motor vehicle proceeding on a
public street or highway.
(11) Any person who possesses a short-barreled rifle or a
short-barreled shotgun under Section 12020, a machinegun under
Section 12220, or a silencer under Section 12520.
(12) Any person who is convicted of violating Section 8101 of the
Welfare and Institutions Code.
(13) Any person who is described in paragraph (2) or (3) of
subdivision (g) of Section 12072.
(f) When probation is granted in a case which comes within
subdivision (e), 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 that disposition.
(g) If a person is not eligible for probation, the judge shall
refer the matter to the probation officer for an investigation of the
facts relevant to determination of the amount of a restitution fine
pursuant to subdivision (b) of Section 1202.4 in all cases where the
determination is applicable. The judge, in his or her discretion, may
direct the probation officer to investigate all facts relevant to
the sentencing of the person. Upon that referral, the probation
officer shall immediately investigate the circumstances surrounding
the crime and the prior record and history of the person and make a
written report to the court of his or her findings. The findings
shall include a recommendation of the amount of the restitution fine
as provided in subdivision (b) of Section 1202.4.
(h) If a defendant is convicted of a felony and a probation report
is prepared pursuant to subdivision (b) or (g), the probation
officer may obtain and include in the report a statement of the
comments of the victim concerning the offense. The court may direct
the probation officer not to obtain a statement if the victim has in
fact testified at any of the court proceedings concerning the
offense.
(i) No probationer shall be released to enter another state unless
his or her case has been referred to the Administrator of the
Interstate Probation and Parole Compacts, pursuant to the Uniform Act
for Out-of-State Probationer or Parolee Supervision (Article 3
(commencing with Section 11175) of Chapter 2 of Title 1 of Part 4)
and the probationer has reimbursed the county that has jurisdiction
over his or her probation case the reasonable costs of processing his
or her request for interstate compact supervision. The amount and
method of reimbursement shall be in accordance with Section 1203.1b.
(j) In any court where a county financial evaluation officer is
available, in addition to referring the matter to the probation
officer, the court may order the defendant to appear before the
county financial evaluation officer for a financial evaluation of the
defendant's ability to pay restitution, in which case the county
financial evaluation officer shall report his or her findings
regarding restitution and other court-related costs to the probation
officer on the question of the defendant's ability to pay those
costs.
Any order made pursuant to this subdivision may be enforced as a
violation of the terms and conditions of probation upon willful
failure to pay and at the discretion of the court, may be enforced in
the same manner as a judgment in a civil action, if any balance
remains unpaid at the end of the defendant's probationary period.
(k) Probation shall not be granted to, nor shall the execution of,
or imposition of sentence be suspended for, any person who is
convicted of a violent felony, as defined in subdivision (c) of
Section 667.5, or a serious felony, as defined in subdivision (c) of
Section 1192.7, and who was on probation for a felony offense at the
time of the commission of the new felony offense.
(l) Each probation department shall develop control and
containment programming, in conjunction with the Department of
Corrections and Rehabilitation, for persons who are designated at a
moderate-high or high level of risk based on the STATIC-99, and shall
require participation in appropriate programming of those persons as
a condition of probation.
SEC. 25. SEC. 38. Section 1203c of
the Penal Code is amended to read:
1203c. (a) (1) Notwithstanding any other provisions of law,
whenever a person is committed to an institution under the
jurisdiction of the Department of Corrections and Rehabilitation,
whether probation has been applied for or not, or granted and
revoked, it shall be the duty of the probation officer of the county
from which the person is committed to send to the Department of
Corrections and Rehabilitation a report of the circumstances
surrounding the offense and the prior record and history of the
defendant, as may be required by the Secretary of the Department of
Corrections and Rehabilitation.
(2) If the person is being committed to the jurisdiction of the
department for a conviction of an offense listed in subparagraph (A)
of paragraph (2) of subdivision (a) of Section 290, the probation
officer shall perform a risk assessment of the person using the
STATIC-99 assessment tool, as set forth in Section 290.06.
(b) These reports shall accompany the commitment papers. The
reports shall be prepared in the form prescribed by the administrator
following consultation with the Corrections Standards Authority,
except that if the defendant is ineligible for probation, a report of
the circumstances surrounding the offense and the prior record and
history of the defendant, prepared by the probation officer on
request of the court and filed with the court before sentence, shall
be deemed to meet the requirements of paragraph (1) of subdivision
(a).
(c) In order to allow the probation officer an opportunity to
interview, for the purpose of preparation of these reports, the
defendant shall be held in the county jail for 48 hours, excluding
Saturdays, Sundays and holidays, subsequent to imposition of sentence
and prior to delivery to the custody of the Secretary of the
Department of Corrections and Rehabilitation, unless the probation
officer has indicated the need for a different period of time.
SEC. 39. Section 1203.06 of the Penal
Code is amended to read:
1203.06.
Notwithstanding Section 1203:
(a) Probation 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) Kidnapping in violation of Section 209
A lewd or lascivious act, in violation of Section 288 .
(E) Burglary of the first degree, as defined in Section 460.
(F) Except as provided in Section 1203.065, rape
Rape, in violation of
paragraph (2) of subdivision (a) of Section 261 , 262,
or 264.1 .
(G) Assault with intent to commit rape or sodomy,
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) Any person convicted of aggravated
Aggravated mayhem in violation of Section 205.
(K) Torture, in violation of Section 206.
(L) Kidnapping, in violation of Section 209.5
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 264.1 or 289.
(Q) Aggravated sexual assault of a child, in violation of Section
269.
(2) Any person previously convicted of a felony specified in
subparagraphs (A) to (L), inclusive, of 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 which
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 jury trying the issue of guilt, by the court where
guilt is established by plea of guilty or nolo contendere, or by
trial by the court sitting without a jury trier of
fact .
(2) This subdivision does not prohibit the adjournment of
criminal proceedings pursuant to Division 6 (commencing with Section
6000) of the Welfare and Institutions Code.
(3) As used in subdivision
(a), "used a firearm" means to display a firearm in a menacing
manner, to intentionally fire it, or to
intentionally strike or hit a human being with it , or to use it
in any manner that qualifies under Section 12022.5 .
(4)
(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. 40. 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, or 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, of committing sodomy or oral copulation in
violation of Section 286 or 288a by force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or
another person, or of violating 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 a violation 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 any of the following: rape,
sodomy, oral copulation, or any violation of Section 264.1,
subdivision (b) of Section 288, or Section 289 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. 41. Section 1203.075 of the Penal
Code is amended to read:
1203.075.
Notwithstanding the provisions of Section 1203:
(a) Probation
(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 , with the
intent to inflict the injury, 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) Kidnapping, in violation of Section 209
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 paragraph (2) or (6) of
subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision
(a) of Section 262 Section 261, 262, or 264.1 .
(7) Assault with intent to commit rape or sodomy
a specified sexual offense , in violation of
Section 220.
(8) Escape, in violation of Section 4530 or 4532.
(9) A Sexual penetration, in
violation of subdivision (a) of Section 289 or of Section 264.1
.
(10) Sodomy, in violation of Section 286.
(11) Oral copulation, in violation of Section 288a.
(12) Carjacking, in violation of Section 215.
(13) Kidnapping, in violation of Section 209.5
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) (1) The existence of any
fact which 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 jury trying the issue of
guilt or by the court where guilt is established by a plea of guilty
or nolo contendere or by a trial by the court sitting without a jury
trier of fact .
(2) This subdivision does not prohibit the adjournment of criminal
proceedings pursuant to Division 3 (commencing with Section 3000) or
Division 6 (commencing with Section 6000) of the Welfare and
Institutions Code.
(3) As used in subdivision (a), "great bodily injury" means "great
bodily injury" as defined in Section 12022.7.
SEC. 26. SEC. 42. 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) For any person being evaluated as a sexually violent predator
pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of
Part 2 of Division 6 of the Welfare and Institutions Code, parole
shall toll from evaluation through the period of commitment, if any.
The period during which parole is tolled shall include the filing of
a petition for commitment, hearing on probable cause, trial
proceedings and actual commitment. Parole shall be tolled through any
subsequent evaluation and commitment proceedings and actual
commitment. Time spent on conditional release under court monitoring
shall be included in the period of parole.
(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, unless the parole authority, for
good cause, waives parole and discharges the inmate from the custody
of the department. However, any inmate sentenced for an offense
specified in paragraph (11) of subdivision (c) of Section 667.5 shall
be released on parole for a period not exceeding five years, and an
inmate sentenced for an offense specified in paragraph (3), (4), (5),
(6), (15), (16), or (18) of subdivision (c) of Section 667.5 shall
be released on parole for a period not exceeding 10 years.
(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) The parole authority shall consider the request of any inmate
regarding the length of his or her parole and the conditions thereof.
(4) Upon successful completion of parole, or at the end of the
maximum statutory period of parole specified for the inmate under
paragraph (1) or (2) 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) and (2) 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, 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, and, 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. 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.
(5) 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 and conditions of parole by
the parole authority. The department or the board may impose as a
condition of parole that an inmate make payments on the inmate's
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.
(6) For purposes of this chapter, the Board of Parole Hearings
shall be considered the parole authority.
(7) The sole authority to issue warrants for the return to actual
custody of any inmate released on parole rests with the board, except
for any escaped inmate or any inmate released prior to his or her
scheduled release date who is returned to custody, in which case
Section 3060 shall apply.
(8) It is the intent of the Legislature that efforts be made with
respect to persons who are subject to Section 290 who are on parole
to engage them in treatment.
SEC. 27. SEC. 43. Section 3005 of
the Penal Code is amended to read:
3005. (a) The Department of Corrections and Rehabilitation shall
ensure that all parolees under active supervision and deemed to pose
a risk to the public of committing sex crimes, as determined by the
STATIC-99 assessment tool, shall be placed on an intensive and
specialized parole supervision caseload, and shall be required to
report frequently to designated parole officers.
(b) The department shall develop and, at the discretion of the
secretary, and subject to an appropriation of the necessary funds,
may implement a plan for the implementation of relapse prevention
treatment programs, and the provision of other services deemed
necessary by the department, in conjunction with intensive and
specialized parole supervision, to reduce the recidivism of sex
offenders.
(c) The department shall develop control and containment
programming for sex offenders who have been assessed pursuant to
Section 5040 and shall require participation in appropriate
programming as a condition of parole.
SEC. 28. SEC. 44. Chapter 1.5
(commencing with Section 5040) is added to Title 7 of Part 3 of the
Penal Code, to read:
CHAPTER 1.5. RISK ASSESSMENT OF SEX OFFENDERS
5040. (a) The Department of Corrections and Rehabilitation shall
use the STATIC-99 assessment tool to perform a risk assessment on all
male inmates who are convicted of a sex offense listed in
subparagraph (A) of paragraph (2) of subdivision (a) of Section 290,
upon commitment to the department. For those inmates already in the
custody of the department, the assessment shall be performed prior to
being released on parole. The assessment shall be performed as
prescribed in Chapter 5.5 (commencing with Section 290) of Title 9 of
Part 2.
(b) Inmates who were assessed using the STATIC-99 prior to being
committed to the department shall not be required to be reassessed.
(c) Inmates who have a risk assessment of moderate-high or high
risk for committing a sex offense, according to the STATIC-99, shall
participate in sex offender control and containment programming while
incarcerated and while on parole, as developed and specified by the
department. The programming shall be based on current, evidence-based
correctional standards that is proven to reduce the risk of
reoffending.
(d) Notwithstanding any other provision of law, inmates who
fail to participate in the programming prescribed shall not
be are sentenced to a life term shall not be
eligible to earn any credits pursuant to Article 2.5 (commencing with
Section 2930) of Chapter 7 of Title 1.
(e) Notwithstanding subdivision (d), an inmate serving a life term
may be excluded from sex offender programming until he or she
receives a parole date and is within five years of that date, unless
the department determines that the programming for that inmate is
necessary for the public safety.
(f) Notwithstanding subdivision (d), inmates who are condemned to
death or sentenced to life without the possibility of parole are
ineligible to participate in sex offender programming.
SEC. 45. Section 12022.75 of the Penal
Code is amended to read:
12022.75. (a) 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 three 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. 29. SEC. 46. Section 13015 is
added to the Penal Code, to read:
13015. It is the intent of the Legislature to create
school-based programs to promote child safety and prevent child
abductions.
SEC. 30. SEC. 47. Section 13105 is
added to the Penal Code, to read:
13105. A state or local law enforcement agency shall not destroy
any records relating to a person who is required to register as a sex
offender pursuant to Section 290, for as long as the person is
living.
SEC. 31. SEC. 48. Section 13887 of
the Penal Code is amended to read:
13887. Every county shall establish and implement a sexual
assault felony enforcement (SAFE) team program pursuant to the
provisions of this chapter.
SEC. 32. SEC. 49. Section 13887.1 of
the Penal Code is amended to read:
13887.1. (a) The mission of this program shall be to reduce
violent sexual assault offenses in the county through proactive
surveillance and arrest of habitual sexual offenders, as defined in
Section 667.71, and strict enforcement of registration requirements
for sex offenders pursuant to Section 290.
(b) The proactive surveillance and arrest authorized by this
chapter shall be conducted within the limits of existing statutory
and constitutional law.
(c) The mission of this program shall also be to provide community
education regarding the purposes of Sections 290 to 290.46,
inclusive. The goal of community education is to do all of the
following:
(1) Provide information to the public about ways to protect
themselves and families from sexual assault.
(2) Emphasize of the importance of using the knowledge of the
presence of registered sex offenders in the community to enhance
public safety.
(3) To explain that harassment or vigilantism against registrants
may cause them to disappear and attempt to live without supervision,
or to register as transients, which would defeat the purpose of sex
offender registration.
SEC. 33. SEC. 50. 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 two 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, or
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
provided defined in subdivision (a): a
felony violation of paragraph (2) of subdivision (a) of
Section 261, paragraph (1) of subdivision (a) of Section 262, Section
264.1, subdivision (a) or (b) of Section 288, or subdivision (a) of
Section 289 of the Penal Code, or sodomy or oral copulation in
violation of Section 286 or 288a of the Penal Code.
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, no more than one 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
applies:
(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). Notwithstanding Section 6600.1, only an offense
described in subdivision (b) shall constitute a sexually violent
offense for purposes of this subdivision.
(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. 34. SEC. 51. 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 that 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 director 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. The tolling of parole shall
occur in accordance with paragraph (4) of subdivision (a) of Section
3000 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. 52. 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 two years
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 , and
the person shall not be kept in actual custody longer than two years
unless a subsequent extended commitment is obtained from the court
incident to the filing of a petition for extended commitment under
this article or unless the term of commitment changes pursuant to
subdivision (e) of Section 6605 . Time spent on conditional
release shall not count toward the two-year term
of commitment, unless the person is placed in a locked facility by
the conditional release program, in which case the time in a locked
facility shall count toward the two-year term of
commitment. The facility shall be located on the grounds of an
institution under the jurisdiction of the Department of Corrections
and Rehabilitation .
SEC. 52.5. 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 two five
years 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, and the person shall not
be kept in actual custody longer than two
five years unless a subsequent extended commitment is obtained
from the court incident to the filing of a petition for extended
commitment under this article or unless the term of commitment
changes pursuant to subdivision (e) of Section 6605. Time spent on
conditional release shall not count toward the two-year
five-year term of commitment, unless the person
is placed in a locked facility by the conditional release program, in
which case the time in a locked facility shall count toward the
two-year five-year term of commitment.
The facility shall be located on the grounds of an institution under
the jurisdiction of the Department of Corrections and
Rehabilitation .
SEC. 53. Section 6604.1 of the Welfare
and Institutions Code is amended to read:
6604.1. (a) The two-year 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. The initial two-year
term shall not be reduced by any time spent in a secure facility
prior to the order of commitment. For any subsequent extended
commitments, the term of commitment shall be for two years commencing
from the date of the termination of the previous commitment.
(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 pursuant to a trial
conducted pursuant to subdivision (f) of Section 6605 . The
rights, requirements, and procedures set forth in Section 6603 shall
apply to extended all commitment
proceedings.
SEC. 53.5. Section 6604.1 of the
Welfare and Institutions Code is amended to read:
6604.1. (a) The two-year five-year
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. The initial two-year
five-year term shall not be reduced by any time spent in a
secure facility prior to the order of commitment. For any subsequent
extended commitments, the term of commitment shall be for two years
commencing from the date of the termination of the previous
commitment.
(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 extended commitment proceedings.
SEC. 54. 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 examination 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 a report of this examination 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) The director shall provide the committed person with
an annual written notice of his or her right to petition the court
for conditional release under Section 6608. The notice shall contain
a waiver of rights. The director shall forward the notice and waiver
form to the court with the annual report. If the person does not
affirmatively waive his or her right to petition the court for
conditional release, the court shall set a show cause hearing to
determine whether facts exist that warrant a hearing on whether the
person's condition has so changed that he or she would not be a
danger to the health and safety of others if discharged. The
committed person shall have the right to be present and to have an
attorney represent him or her at the show cause hearing.
(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 a period of two years 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.
(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 a period of two years 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.
(1) The director, within 30 days of the filing of the report,
shall review and consider the annual report. The person may submit
any report prepared by a retained or appointed expert and the
director shall also consider that report. Notice of review by the
director shall be filed in the court. If upon that review, the
director determines that the person's condition has so changed that
either: (a) The person no longer meets the definition of a sexually
violent predator; or (b) 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 secretary shall
authorize the person to petition the court for conditional release
to a less restrictive alternative or unconditional discharge. The
director may request the court to set a show cause hearing, or the
court may set a show cause hearing on its own motion. At that
hearing, the state may decline to state a prima facie case or may
submit on the evidence in the annual report. 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 hearing within
forty-five days.
(2) Nothing contained in this chapter shall prohibit the person
from otherwise petitioning the court for conditional release to a
less restrictive alternative or unconditional discharge without the
director's approval. The director shall provide the committed person
with an annual written notice of the person's right to petition the
court for conditional release to a less restrictive alternative or
unconditional discharge over the secretary's objection. The notice
shall contain a waiver of rights. The director shall file the notice
and waiver form and the annual report with the court. If the person
does not affirmatively waive the right to petition, the court shall
set a show cause hearing to determine whether probable cause exists
to warrant a hearing on whether the person's condition has so changed
that: (A) He or she no longer meets the definition of a sexually
violent predator; or (B) conditional release to a proposed less
restrictive alternative would be in the best interest of the person
and conditions can be imposed that would adequately protect the
community.
(c) The committed person shall have a right to have an attorney
represent him or her at the show cause hearing, which may be
conducted solely on the basis of affidavits or declarations, but the
person is not entitled to be present at the show cause hearing. At
the show cause hearing, the prosecuting attorney shall present prima
facie evidence establishing that the committed person continues to
meet the definition of a sexually violent predator and that a less
restrictive alternative is not in the best interest of the person and
conditions cannot be imposed that adequately protect the community.
In making this showing, the state may rely exclusively upon the
annual report prepared pursuant to subdivision (a). The committed
person may present responsive affidavits or declarations to which the
state may reply.
(d) If the court at the show cause hearing determines that either:
(1) The state has failed to present prima facie evidence that the
committed person continues to meet the definition of a sexually
violent predator and that no proposed less restrictive alternative is
in the best interest of the person and conditions cannot be imposed
that would adequately protect the community; or (2) probable cause
exists to believe that the person's condition has so changed that:
(A) The person no longer meets the definition of a sexually violent
predator; or (B) release to a proposed less restrictive alternative
would be in the best interest of the person and conditions can be
imposed that would adequately protect the community, then the court
shall set a trial on either or both issues.
(e) If the court has not previously considered the issue of
release to a less restrictive alternative, either through a trial on
the merits or through the procedures set forth in subdivision (d),
the court shall consider whether release to a less restrictive
alternative would be in the best interests of the person and
conditions can be imposed that would adequately protect the
community, without considering whether the person's condition has
changed.
(f) At the trial resulting from a finding by the court under
subdivision (d), the committed person shall be entitled to be present
and to the benefit of all constitutional protections that were
afforded to the person at the initial commitment proceeding. The
prosecuting agency shall represent the state and shall have a right
to a jury trial and to have the committed person evaluated by experts
chosen by the state. The committed person shall also have the right
to a jury trial and the right to have experts evaluate him or her on
his or her behalf and the court shall appoint an expert if the person
is indigent and requests an appointment.
(g) If the issue at the hearing is whether the person should be
unconditionally discharged, the burden of proof shall be upon the
state to prove beyond a reasonable doubt that the committed person's
condition remains such that the person continues to meet the
definition of a sexually violent predator. Evidence of the prior
commitment trial and disposition is admissible.
(h) If the issue at the hearing is whether the person should be
conditionally released to a less restrictive alternative, the burden
of proof at the hearing shall be upon the state to prove beyond a
reasonable doubt that conditional release to any proposed less
restrictive alternative either: (1) Is not in the best interest of
the committed person; or (2) does not include conditions that would
adequately protect the community. Evidence of the prior commitment
trial and disposition is admissible.
(i) Probable cause exists to believe that a person's condition has
"so changed," under paragraph (2) of subdivision (d), only when
evidence exists, since the person's last commitment trial proceeding,
of a substantial change in the person's physical or mental condition
such that the person either no longer meets the definition of a
sexually violent predator, or that a conditional release to a less
restrictive alternative is in the person's best interest and
conditions can be imposed to adequately protect the community.
(j) A new trial proceeding under subdivision (f) may be ordered or
held only when there is current evidence from a licensed
professional of one of the following and the evidence presents a
change in condition since the person's last commitment trial
proceeding:
(1) An identified physiological change to the person, such as
paralysis, stroke, or dementia, that renders the committed person
unable to commit a sexually violent act and this change is permanent.
(2) A change in the person's mental condition brought about
through positive response to continuing participation in treatment
which indicates that the person meets the standard for conditional
release to a less restrictive alternative or that the person would be
safe to be at large if unconditionally released from commitment.
(k) For purposes of this section, a change in a single demographic
factor, without more, does not establish probable cause for a new
trial proceeding under subdivision (f). As used in this section, a
single demographic factor includes, but is not limited to, a change
in the chronological age, marital status, or gender of the committed
person.
(l) The jurisdiction of the court over a person civilly committed
pursuant to this chapter continues until such time as the person is
unconditionally discharged.
(m) Before the court may enter an order directing conditional
release to a less restrictive alternative, it must find all of the
following:
(1) The person will be treated by a treatment provider who is
qualified to provide such treatment in the state of California.
(2) The treatment provider has presented a specific course of
treatment and has agreed to assume responsibility for that treatment
and will report progress to the court on a regular basis, and will
report violations immediately to the court, the prosecutor, the
supervising community corrections officer, and the superintendent of
the special commitment center.
(3) Housing exists that is sufficiently secure to protect the
community, and the person or agency providing housing to the
conditionally released person has agreed in writing to accept the
person, to provide the level of security required by the court, and
immediately to report to the court, the prosecutor, the community
program director, the department and the superintendent of the
special commitment center if the person leaves the housing to which
he or she has been assigned without authorization.
(4) The person is willing to comply with the treatment provider
and all requirements imposed by the treatment provider and by the
court.
(5) The person is willing to comply with supervision requirements
imposed by the Department of Corrections and Rehabilitation.
(n) Upon the conclusion of the evidence in a hearing held pursuant
to subdivisions (d) through (h), or through summary judgment
proceedings prior to such a hearing, if the court finds that there is
no legally sufficient evidentiary basis for a reasonable jury to
find that the conditions set forth in subdivision (d) have been met,
the court shall grant a motion by the state for a judgment as a
matter of law on the issue of conditional release to a less
restrictive alternative.
(o) Whenever the issue of conditional release to a less
restrictive alternative is submitted to the jury, the court shall
instruct the jury to return a verdict in substantially the following
form:
Has the state proved beyond a reasonable doubt that either:
(1) The proposed less restrictive alternative is not in the best
interests of respondent.
(2) Does not include conditions that would adequately protect the
community Answer: Yes or No.
(p) If the court or jury determines that conditional release to a
less restrictive alternative is in the best interest of the person
and includes conditions that would adequately protect the community,
and the court determines that the minimum conditions set forth in
subdivision (m) section are met, the court shall enter judgment and
direct a conditional release.
(q) The court shall impose any additional conditions necessary to
ensure compliance with treatment and to protect the community. If the
court finds that conditions do not exist that will both ensure the
person's compliance with treatment and protect the community, then
the person shall be remanded to the custody of the Department of
Health Services for control, care, and treatment in a secure
facility.
(r) If the service provider designated by the court to provide
inpatient or outpatient treatment or to monitor or supervise any
other terms and conditions of a person's placement in a less
restrictive alternative is other than the Department of Health
Services or the Department of Corrections and Rehabilitation, then
the service provider so designated must agree in writing to provide
that treatment, monitoring, or supervision in accord with this
section. Any person providing or agreeing to provide treatment,
monitoring, or supervision services pursuant to this chapter may be
compelled to testify and any privilege with regard to such person's
testimony is deemed waived.
(s) Prior to authorizing any release to a less restrictive
alternative, the court shall impose those conditions upon the person
as are necessary to ensure the safety of the community. The court
shall order the Department of Corrections and Rehabilitation to
investigate the less restrictive alternative and recommend any
additional conditions to the court. These conditions shall include,
but are not limited to, the following: Specification of residence,
prohibition of contact with potential or past victims, prohibition of
alcohol and other drug use, participation in a specific course of
inpatient or outpatient treatment that may include monitoring by the
use of polygraph and plethysmograph, supervision by a Department of
Corrections and Rehabilitation community corrections officer, a
requirement that the person remain within the state unless the person
receives prior authorization by the court, and any other conditions
that the court determines are in the best interest of the person or
others. A copy of the conditions of release shall be given to the
person and to any designated service providers.
(t) Any service provider designated to provide inpatient or
outpatient treatment shall monthly, or as otherwise directed by the
court, submit to the court, to the Department of Health Services
facility from which the person was released, to the prosecutor of the
county in which the person was found to be a sexually violent
predator, and to the supervising community corrections officer, a
report stating whether the person is complying with the terms and
conditions of the conditional release to a less restrictive
alternative.
(u) Each person released to a less restrictive alternative shall
have his or her case reviewed by the court that released him or her
no later than one year after that release and annually thereafter
until the person is unconditionally discharged. Review may occur in a
shorter time or more frequently, if the court, in its discretion on
its own motion, or on motion of the person, the secretary, or the
prosecuting attorney so determines. The sole question to be
determined by the court is whether the person shall continue to be
conditionally released to a less restrictive alternative. The court
in making its determination shall be aided by the annual reports
filed pursuant to subdivision (a) of this section and the opinions of
the secretary and other experts or professional persons.
(v) 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.
(w) 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.
(x) 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 and this section.
SEC. 55. Section 6608 of the Welfare
and Institutions Code is repealed.
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 and subsequent 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. 56. If an appellate court determines that the
indeterminate term set fourth in Sections 52 and 53 is
unconstitutional, those sections shall not be operative, and Sections
52.5 and 53.5 shall be operative.
SEC. 35. SEC. 57. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution for certain costs that may be incurred by a
local agency or school district because, in that regard, 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.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
SEC. 58. 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:
In order to protect the health and safety of the children of
California, it is necessary that this act take effect immediately.