BILL NUMBER: SB 1128 CHAPTERED
BILL TEXT
CHAPTER 337
FILED WITH SECRETARY OF STATE SEPTEMBER 20, 2006
APPROVED BY GOVERNOR SEPTEMBER 20, 2006
PASSED THE SENATE AUGUST 31, 2006
PASSED THE ASSEMBLY AUGUST 30, 2006
AMENDED IN ASSEMBLY AUGUST 22, 2006
AMENDED IN ASSEMBLY JUNE 22, 2006
AMENDED IN SENATE MAY 30, 2006
AMENDED IN SENATE MAY 26, 2006
AMENDED IN SENATE APRIL 18, 2006
AMENDED IN SENATE MARCH 22, 2006
AMENDED IN SENATE MARCH 7, 2006
AMENDED IN SENATE MARCH 2, 2006
AMENDED IN SENATE FEBRUARY 9, 2006
INTRODUCED BY Senator Alquist
(Principal coauthor: Senator Poochigian)
(Coauthor: Senator Perata)
(Coauthors: Assembly Members Nunez, Cohn, Frommer, Leslie, and
Lieu)
JANUARY 9, 2006
An act to amend Section 68152 of the Government Code, to amend
Sections 209, 220, 269, 288.5, 290, 290.3, 290.46, 311.2, 311.4,
311.9, 311.11, 626.8, 647.6, 667.1, 667.5, 667.51, 667.6, 667.61,
667.71, 1170.125, 1192.7, 1203, 1203c, 1203.06, 1203.065, 1203.075,
3000, 3001, 3005, 12022.75, 13887, and 13887.1 of, to amend and
renumber Section 653g of, to add Sections 288.3, 288.7, 290.03,
290.04, 290.05, 290.06, 290.07, 290.08, 626.81, 653c, 801.2, 1203e,
1203f, 3072, and 13887.5 to, and to add a heading to Chapter 5.5
(commencing with Section 290) to Title 9 of Part 2 of, the Penal
Code, and to amend Sections 6600, 6601, 6604, 6604.1, and 6605 of the
Welfare and Institutions Code, relating to sex offenders, making an
appropriation therefor, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1128, 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.
Records relating to felonies are required to be kept for 75 years.
This bill would require courts to keep all records relating to
misdemeanor actions resulting in a requirement that the defendant
register as a sex offender for 75 years. The bill also would require
every district attorney's office and the Department of Justice to
retain records relating to a registered sex offender for 75 years
after disposition of the case. 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 than 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 pubic 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 any 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.
The bill would 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, and that any adult who engages in
oral copulation or sexual penetration with a child who is 10 years of
age or younger is guilty of a felony punishable by imprisonment in
the state prison for 15 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 of 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 also
add murder in the perpetuation of or attempt to commit certain sex
crimes to the list, and would add conspiracy to commit any of the
offenses to the list. The bill would make findings and declarations
regarding the need for a comprehensive system of risk assessment,
supervision, monitoring, and containment for registered sex
offenders. The bill would require every person required to register
as a sex offender to be subject to assessment using the
State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO).
The bill would establish the SARATSO Review Committee, the purpose of
which is to ensure that the SARATSO reflects the most reliable,
objective, and well-established protocols for predicting sex offender
risk of recidivism. Commencing January 1, 2007, the SARATSO for
adult males would be the STATIC-99 risk assessment scale. The
committee would be required to research risk assessment tools for
female and juvenile offenders, and to advise the Legislature and
Governor of their recommendation. The committee would also
periodically evaluate the SARATSO for each population and make any
recommendations for changes, and develop and administer a training
program for officers who would administer the SARATSO. Persons who
administer the SARATSO would be required to be trained at least every
2 years.
The bill would require the Department of Corrections and
Rehabilitation to assess every eligible person who is incarcerated or
on parole, using the SARATSO. The bill would also require each
probation department to assess every eligible person who is under
their supervision.
This bill would authorize the Department of Corrections and
Rehabilitation, subject to an appropriation, to establish and operate
a specialized sex offender treatment pilot program for inmates whom
the department determines pose a high risk to the public of
committing violent sex crimes.
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 Governor'
s Office of Emergency Services to fund 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 modify the information to be made available to the
public, and 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. The bill would
require the Department of Justice to renovate the Violent Crime
Information Network, as specified.
Under existing law, a person who possesses, prepares, publishes,
produces, develops, duplicates, or prints any data or image with the
intent to distribute, exhibit, or exchange the data or image with a
person 18 years of age or older, knowing the data or image depicts a
person under 18 years of age personally engaging in or personally
simulating sexual conduct is guilty of a misdemeanor.
This bill would increase the punishment for that crime to a
misdemeanor or felony.
Under existing law, a person who uses a minor to assist in the
production or distribution of child pornography is guilty of a
misdemeanor upon a first offense.
This bill would increase the punishment for the first conviction
of that crime to a misdemeanor or felony.
Under existing law, the first conviction for possession of child
pornography is punished as a misdemeanor.
This bill would make the punishment for a conviction either a
misdemeanor or a felony and would provide for additional punishment
for a person previously convicted of certain crimes.
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 increase the penalties for a violation of that
crime if the person is a registered sex offender, and would make
related changes. 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 enter or remain on the grounds of a
day care facility where elderly or dependent persons reside or
regularly are present, without lawful business thereon or written
permission from the facility administrator.
Existing law, added by initiative acts that require amendments to
its provisions to be approved by2/3 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 offenses 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 for work, to reduce his or her sentence.
This bill would expand the types of sex crimes to which these
provisions 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 offenses 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, 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 and for using
a minor in the production of a representation of sexual conduct to
10 years from the date of production.
Existing law, added by an initiative statute which provides for
amendment of its provision by2/3 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 SARATSO to perform a presentencing risk assessment of every
person convicted of an offense that requires him or her to register
as a sex offender. The bill would require each probation department
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 SARATSO. The bill
would require those probationers who are deemed to be a high risk to
the public, as determined by the SARATSO, to be placed on intensive
and specialized probation supervision. 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
SARATSO on each person convicted of a felony that requires him or her
to register as a sex offender, in order to determine the person's
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.
Under existing law relating to sexually violent predators, parole
tolls from evaluation through the period of commitment, if any.
This bill would provide that parole tolls through any period of
commitment and conditional release under court monitoring.
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 are placed on an intensive and specialized parole
supervision caseload.
This bill would instead require those parolees who are deemed to
pose a high risk to the public of committing any sex crime, as
determined by the SARATSO, to be placed on intensive and specialized
supervision, and to be required to report frequently to designated
parole officers. The bill would authorize the department to place any
other parolee on intensive and specialized supervision, as
specified.
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 the Office of Emergency Services to
establish standards by which grants are awarded on a competitive
basis to counties for SAFE teams.
This bill would appropriate $495,000 from the General Fund to the
Office of Emergency Services, Division of Criminal Justice Programs
for child abuse and abduction programs that provide prevention
education to children in schools.
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.
This bill would incorporate additional changes made in AB 1849, to
be operative only if this bill and AB 1849 are enacted and this bill
is enacted last.
This bill would provide that its provisions are severable.
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.
Appropriation: 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) Misdemeanor action resulting in a requirement that the
defendant register as a sex offender pursuant to Section 290 of the
Penal Code: 75 years. This paragraph shall apply to records relating
to a person convicted on or after the effective date of Senate Bill
1128 of the 2005-06 Regular Session.
(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 of those acts, is guilty of a felony. Upon
conviction thereof, he or she shall be punished by imprisonment in
the state prison for life without possibility of parole in cases in
which any person subjected to any of those acts suffers death or
bodily harm, or is intentionally confined in a manner which exposes
that person to a substantial likelihood of death, or shall be
punished by imprisonment in the state prison for life with the
possibility of parole if the victim does not suffer death or bodily
harm.
(b) (1) Any person who kidnaps or carries away any individual to
commit robbery, rape, spousal rape, oral copulation, sodomy, or any
violation of Section 264.1, 288, or 289, shall be punished by
imprisonment in the state prison for life with the possibility of
parole.
(2) This subdivision shall only apply if the movement of the
victim is beyond that merely incidental to the commission of, and
increases the risk of harm to the victim over and above that
necessarily present in, the intended underlying offense.
(c) In all cases in which probation is granted, the court shall,
except in unusual cases where the interests of justice would best be
served by a lesser penalty, require as a condition of the probation
that the person be confined in the county jail for 12 months. If the
court grants probation without requiring the defendant to be confined
in the county jail for 12 months, it shall specify its reason or
reasons for imposing a lesser penalty.
(d) Subdivision (b) shall not be construed to supersede or affect
Section 667.61. A person may be charged with a violation of
subdivision (b) and Section 667.61. However, a person may not be
punished under subdivision (b) and Section 667.61 for the same act
that constitutes a violation of both subdivision (b) and Section
667.61.
SEC. 5. Section 220 of the Penal Code is amended to read:
220. (a) Except as provided in subdivision (b), any person who
assaults another with intent to commit mayhem, rape, sodomy, oral
copulation, or any violation of Section 264.1, 288, or 289 shall be
punished by imprisonment in the state prison for two, four, or six
years.
(b) Any person who, in the commission of a burglary of the first
degree, as defined in subdivision (a) of Section 460, assaults
another with 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 seven or more years younger
than the person is guilty of aggravated sexual assault of a child:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Rape or sexual penetration, in concert, in violation of
Section 264.1.
(3) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(4) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(b) Any person who violates this section is guilty of a felony and
shall be punished by imprisonment in the state prison for 15 years
to life.
(c) The court shall impose a consecutive sentence for each offense
that results in a conviction under this section if the crimes
involve separate victims or involve the same victim on separate
occasions, as defined in subdivision (d) of Section 667.6.
SEC. 7. Section 288.3 is added to the Penal Code, to read:
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) Nothing in this section shall preclude or 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, 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 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. 9. Section 288.7 is added to the Penal Code, to read:
288.7. (a) 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.
(b) Any person 18 years of age or older who engages in oral
copulation or sexual penetration, as defined in Section 289, 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
15 years to life.
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. 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 187 committed in the perpetration, or
an attempt to perpetrate, rape or any act punishable under Section
286, 288, 288a, or 289, 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, 288.3,
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, 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 or conspiracy 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), including offenses in which
the person was a principal, as defined in Section 31.
(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) (I) Except as provided in subclause (II), any person who
would be required to register while residing in the state of
conviction for a sex offense committed in that state.
(II) Notwithstanding subclause (I), a person convicted in another
state of an offense similar to one of the following offenses who is
required to register in the state of conviction shall not be required
to register in California unless the out-of-state offense contains
all of the elements of a registerable California offense described in
subparagraph (A):
(aa) Indecent exposure, pursuant to Section 314.
(ab) Unlawful sexual intercourse, pursuant to Section 261.5.
(ac) Incest, pursuant to Section 285.
(ad) 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 (G)
and the department is able, upon the exercise of reasonable
diligence, to verify that fact.
(ae) Pimping, pursuant to Section 266h, or pandering, pursuant to
Section 266i.
(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). This
paragraph shall not apply to a person who is incarcerated for less
than 30 days if he or she has registered as required by paragraph (1)
of subdivision (a), he or she returns after incarceration to the
last registered address, and the annual update of registration that
is required to occur within five working days of his or her birthday,
pursuant to subparagraph (D) of paragraph (1) of subdivision (a),
did not fall within that incarceration period. 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 June 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. 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 sex 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 sex 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. 13. Section 290.04 is added to the Penal Code, to read:
290.04. (a) (1) The sex offender risk assessment tools authorized
by this section for use with selected populations shall be known,
with respect to each population, as the State-Authorized Risk
Assessment Tool for Sex Offenders (SARATSO). If a SARATSO has not
been selected for a given population pursuant to this section, no
duty to administer the SARATSO elsewhere in this code shall apply
with respect to that population. Every person required to register as
a sex offender shall be subject to assessment with the SARATSO as
set forth in this section and elsewhere in this code.
(2) A representative of the State Department of Mental Health, in
consultation with a representative of the Department of Corrections
and Rehabilitation and a representative of the Attorney General's
office, shall comprise the SARATSO Review Committee. The purpose of
the committee, which shall be staffed by the State Department of
Mental Health, shall be to ensure that the SARATSO reflects the most
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. The
committee shall consult with experts in the fields of risk
assessment and the use of actuarial instruments in predicting sex
offender risk, sex offending, sex offender treatment, mental health,
and law, as it deems appropriate.
(b) (1) Commencing January 1, 2007, the SARATSO for adult males
required to register as sex offenders shall be the STATIC-99 risk
assessment scale.
(2) On or before January 1, 2008, the SARATSO Review Committee
shall determine whether the STATIC-99 should be supplemented with an
actuarial instrument that measures dynamic risk factors or whether
the STATIC-99 should be replaced as the SARATSO with a different risk
assessment tool. If the committee unanimously agrees on changes to
be made to the SARATSO, it shall advise the Governor and the
Legislature of the changes, and the State Department of Mental Health
shall post the decision on its Internet Web site. Sixty days after
the decision is posted, the selected tool shall become the SARATSO
for adult males.
(c) On or before July 1, 2007, the SARATSO Review Committee shall
research risk assessment tools for females required to register as
sex offenders. If the committee unanimously agrees on an appropriate
risk assessment tool to be used to assess this population, it shall
advise the Governor and the Legislature of the selected tool, and the
State Department of Mental Health shall post the decision on its
Internet Web site. Sixty days after the decision is posted, the
selected tool shall become the SARATSO for females.
(d) On or before January 1, 2007, the SARATSO Review Committee
shall research risk assessment tools for juveniles required to
register as sex offenders. If the committee unanimously agrees on an
appropriate risk assessment tool to be used to assess this
population, it shall advise the Governor and the Legislature of the
selected tool, and the State Department of Mental Health shall post
the decision on its Internet Web site. Sixty days after the decision
is posted, the selected tool shall become the SARATSO for juveniles.
(e) The committee shall periodically evaluate the SARATSO for each
specified population. If the committee unanimously agrees on a
change to the SARATSO for any population, it shall advise the
Governor and the Legislature of the selected tool, and the State
Department of Mental Health shall post the decision on its Internet
Web site. Sixty days after the decision is posted, the selected tool
shall become the SARATSO for that population.
(f) The committee shall perform other functions consistent with
the provisions of this act or as may be otherwise required by law,
including, but not limited to, defining tiers of risk based on the
SARATSO. The committee shall be immune from liability for good faith
conduct under this act.
SEC. 14. Section 290.05 is added to the Penal Code, to read:
290.05. (a) On or before January 1, 2008, the SARATSO Review
Committee established pursuant to Section 290.04, in consultation
with the entities specified in subdivision (b), shall develop a
training program for persons authorized by this code to administer
the SARATSO, as set forth in Section 290.04.
(b) (1) The Department of Corrections and Rehabilitation shall be
responsible for overseeing the training of persons who will
administer the SARATSO pursuant to paragraph (1) or (2) of
subdivision (a) of Section 290.06.
(2) The State Department of Mental Health shall be responsible for
overseeing the training of persons who will administer the SARATSO
pursuant to paragraph (3) of subdivision (a) of Section 290.06.
(3) The Correction Standards Authority shall be responsible for
developing standards for the training of persons who will administer
the SARATSO pursuant to paragraph (4) or (5) of subdivision (a) of
Section 290.06.
(4) The Commission on Peace Officer Standards and Training shall
be responsible for developing standards for the training of persons
who will administer the SARATSO pursuant to subdivision (c) of
Section 290.06.
(c) The training shall be conducted by experts in the field of
risk assessment and the use of actuarial instruments in predicting
sex offender risk. Subject to requirements established by the
committee, the Department of Corrections and Rehabilitation, the
State Department of Mental Health, probation departments, and
authorized local law enforcement agencies shall designate key persons
within their organizations to attend training and, as authorized by
the department, to train others within their organizations designated
to perform risk assessments as required or authorized by law. Any
person who administers the SARATSO shall receive training no less
frequently than every two years.
(d) The SARATSO may be performed for purposes authorized by
statute only by persons trained pursuant to this section.
SEC. 15. Section 290.06 is added to the Penal Code, to read:
290.06. Effective on or before July 1, 2008, the SARATSO, as set
forth in Section 290.04, shall be administered as follows:
(a) (1) The Department of Corrections and Rehabilitation shall
assess every eligible person who is incarcerated in state prison.
Whenever possible, the assessment shall take place at least four
months, but no sooner than 10 months, prior to release from
incarceration.
(2) The department shall assess every eligible person who is on
parole. Whenever possible, the assessment shall take place at least
four months, but no sooner than 10 months, prior to termination of
parole.
(3) The Department of Mental Health shall assess every eligible
person who is committed to that department. Whenever possible, the
assessment shall take place at least four months, but no sooner than
10 months, prior to release from commitment.
(4) Each probation department shall assess every eligible person
for whom it prepares a report pursuant to Section 1203.
(5) Each probation department shall assess every eligible person
under its supervision who was not assessed pursuant to paragraph (4).
The assessment shall take place prior to the termination of
probation, but no later than January 1, 2010.
(b) If a person required to be assessed pursuant to subdivision
(a) was assessed pursuant to that subdivision within the previous
five years, a reassessment is permissible but not required.
(c) The SARATSO Review Committee established pursuant to Section
290.04, in consultation with local law enforcement agencies, shall
establish a plan and a schedule for assessing eligible persons not
assessed pursuant to subdivision (a). The plan shall provide for
adult males to be assessed on or before January 1, 2012, and for
females and juveniles to be assessed on or before January 1, 2013,
and it shall give priority to assessing those persons most recently
convicted of an offense requiring registration as a sex offender. On
or before January 15, 2008, the committee shall introduce legislation
to implement the plan.
(d) On or before January 1, 2008, the SARATSO Review Committee
shall research the appropriateness and feasibility of providing a
means by which an eligible person subject to assessment may, at his
or her own expense, be assessed with the SARATSO by a governmental
entity prior to his or her scheduled assessment. If the committee
unanimously agrees that such a process is appropriate and feasible,
it shall advise the Governor and the Legislature of the selected
tool, and it shall post its decision on the Department of Corrections
and Rehabilitation's Internet Web site. Sixty days after the
decision is posted, the established process shall become effective.
(e) For purposes of this section,"eligible person" means a person
who was convicted of an offense that requires him or her to register
as a sex offender pursuant to Section 290 and who has not been
assessed with the SARATSO within the previous five years.
SEC. 16. Section 290.07 is added to the Penal Code, to read:
290.07. Notwithstanding any other provision of law, any person
authorized by statute to administer the State Authorized Risk
Assessment Tool for Sex Offenders and trained pursuant to Section
290.06 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 presentencing reports, judicial records and case files,
juvenile records, 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.
SEC. 17. Section 290.08 is added to the Penal Code, to read:
290.08. Every district attorney's office and the Department of
Justice shall retain records relating to a person convicted of an
offense for which registration is required pursuant to Section 290
for a period of 75 years after disposition of the case.
SEC. 18. Section 290.3 of the Penal Code, as amended by Chapter 69
of the Statutes of 2006, is amended to read:
290.3. (a) Every person who is convicted of any offense specified
in subdivision (a) of Section 290 shall, in addition to any
imprisonment or fine, or both, imposed for violation of the
underlying offense, be punished by a fine of three hundred dollars
($300) upon the first conviction or a fine of five hundred dollars
($500) upon the second and each subsequent conviction, unless the
court determines that the defendant does not have the ability to pay
the fine.
An amount equal to all fines collected pursuant to this
subdivision during the preceding month upon conviction of, or upon
the forfeiture of bail by, any person arrested for, or convicted of,
committing an offense specified in subdivision (a) of Section 290,
shall be transferred once a month by the county treasurer to the
Controller for deposit in the General Fund. Moneys deposited in the
General Fund pursuant to this subdivision shall be transferred by the
Controller as provided in subdivision (b).
(b) 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), and 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
DNA samples for law enforcement purposes. The moneys in that fund
shall be available for expenditure upon appropriation by the
Legislature.
(3) Those moneys so designated shall be allocated equally and
distributed quarterly to counties that maintain a local DNA testing
laboratory. Before making any allocations under this paragraph, the
Controller shall deduct the estimated costs that will be incurred to
set up and administer the payment of these funds to the counties. Any
funds allocated to a county pursuant to this paragraph shall be used
by that county for the exclusive purpose of testing DNA samples for
law enforcement purposes.
(c) Notwithstanding any other provision of this section, the
Department of Corrections and Rehabilitation may collect a fine
imposed pursuant to this section from a person convicted of a
violation of any offense listed in subdivision (a) of Section 290
that results in incarceration in a facility under the jurisdiction of
the department. All moneys collected by the 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 Governor's Office of Emergency
Services to fund SAFE teams pursuant to Chapter 9.7 (commencing with
Section 13887) of Title 6 of Part 4.
SEC. 19. Section 290.46 of the Penal Code is amended to read:
290.46. (a) (1) 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 Internet Web site shall
be translated into languages other than English, as determined by
the department.
(2) 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.
(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 288.3, provided that the offense is a felony.
(J) Section 288.5.
(K) Section 288.7.
(L) Subdivision (a) or (j) of Section 289.
(M) 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 288.3, provided that the offense is a misdemeanor.
(H) Section 626.81.
(I) Section 647.6.
(J) Section 653c.
(K) 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.
(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 that the offender was the victim's parent,
stepparent, sibling, or grandparent and that 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 that the offender was the
victim's parent, stepparent, sibling, or grandparent and that 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) If the department 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.
(4) Effective January 1, 2012, no person shall be excluded
pursuant to this subdivision unless the offender has submitted to the
department documentation sufficient for the department to determine
that he or she has a SARATSO risk level of low or moderate low.
(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. 19.5. Section 290.46 of the Penal Code is amended to read:
290.46. (a) (1) 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 Internet Web site shall
be translated into languages other than English as determined by the
department.
(2) (A) On or before July 1, 2010, the Department of Justice shall
make available to the public, via an Internet Web site as specified
in this section, as to any person described in subdivision (b), (c),
or (d), the following information:
(i) The year of conviction of his or her most recent offense
requiring registration pursuant to Section 290.
(ii) The year he or she was released from incarceration for that
offense.
(iii) Whether he or she was subsequently incarcerated for any
other felony, if that fact is reported to the department. If the
department has no information about a subsequent incarceration for
any felony, that fact shall be noted on the Internet Web site.
However, no year of conviction shall be made available to the public
unless the department also is able to make available the
corresponding year of release of incarceration for that offense, and
the required notation regarding any subsequent felony.
(B) (i) Any state or local facility that releases from
incarceration a person who was incarcerated because of a crime for
which he or she is required to register as a sex offender pursuant to
Section 290 shall, within 30 days of release, provide the year of
conviction and year of release for his or her most recent offense
requiring registration to the Department of Justice in a manner and
format approved by the department.
(ii) Any state or local facility that releases a person who is
required to register pursuant to Section 290 from incarceration whose
incarceration was for a felony committed subsequently to the offense
for which he or she is required to register shall, within 30 days of
release, advise the Department of Justice of that fact.
(iii) Any state or local facility that, prior to January 1, 2007,
released from incarceration a person who was incarcerated because of
a crime for which he or she is required to register as a sex offender
pursuant to Section 290 shall provide the year of conviction and
year of release for his or her most recent offense requiring
registration to the Department of Justice in a manner and format
approved by the department.
(iv) Any state or local facility that, prior to January 1, 2007,
released a person who is required to register pursuant to Section 290
from incarceration whose incarceration was for a felony committed
subsequently to the offense for which he or she is required to
register shall advise the Department of Justice of that fact in a
manner and format approved 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 288.3, provided that the offense is a felony.
(J) Section 288.5.
(K) Section 288.7.
(L) Subdivision (a) or (j) of Section 289.
(M) 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 288.3, provided that the offense is a misdemeanor.
(H) Section 626.81.
(I) Section 647.6.
(J) Section 653c.
(K) 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, provided the offense is a misdemeanor.
(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 that the offender was the victim's parent,
stepparent, sibling, or grandparent and that 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 that the offender was the
victim's parent, stepparent, sibling, or grandparent and that 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) If the department 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 that 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.
(4) Effective January 1, 2012, no person shall be excluded
pursuant to this subdivision unless the offender has submitted to the
department documentation sufficient for the department to determine
that he or she has a SARATSO risk level of low or moderate low.
(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. 20. Section 311.2 of the Penal Code is amended to read:
311.2. (a) Every person who knowingly sends or causes to be sent,
or brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, or prints, with intent to distribute or to exhibit to
others, or who offers to distribute, distributes, or exhibits to
others, any obscene matter 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 knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints 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 or filmstrip, with intent to distribute or to
exhibit to, or to exchange with, others for commercial consideration,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, others for commercial consideration, any obscene
matter, knowing that the matter depicts a person under the age of 18
years personally engaging in or personally simulating sexual conduct,
as defined in Section 311.4, is guilty of a felony and shall be
punished by imprisonment in the state prison for two, three, or six
years, or by a fine not exceeding one hundred thousand dollars
($100,000), in the absence of a finding that the defendant would be
incapable of paying that fine, or by both that fine and imprisonment.
(c) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints 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 or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person 18 years of age or older,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, a person 18 years of age or older any matter, knowing
that the matter depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct, as
defined in Section 311.4, shall be punished by imprisonment in the
county jail for up to one year, or by a fine not exceeding two
thousand dollars ($2,000), or by both that fine and imprisonment, or
by imprisonment in the state prison. It is not necessary to prove
commercial consideration or that the matter is obscene in order to
establish a violation of this subdivision. If a person has been
previously convicted of a violation of this subdivision, he or she is
guilty of a felony.
(d) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints 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 or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person under 18 years of age, or
who offers to distribute, distributes, or exhibits to, or exchanges
with, a person under 18 years of age any matter, knowing that the
matter depicts a person under the age of 18 years personally engaging
in or personally simulating sexual conduct, as defined in Section
311.4, is guilty of a felony. It is not necessary to prove commercial
consideration or that the matter is obscene in order to establish a
violation of this subdivision.
(e) Subdivisions (a) to (d), inclusive, do not apply to the
activities of law enforcement and prosecuting agencies in the
investigation and prosecution of criminal offenses, to legitimate
medical, scientific, or educational activities, or to lawful conduct
between spouses.
(f) This section does not apply to matter that depicts a legally
emancipated child under the age of 18 years or to lawful conduct
between spouses when one or both are under the age of 18 years.
(g) It does not constitute a violation of this section for a
telephone corporation, as defined by Section 234 of the Public
Utilities Code, to carry or transmit messages described in this
chapter or to perform related activities in providing telephone
services.
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, shall be punished by imprisonment in the
county jail for up to one year, or by a fine not exceeding two
thousand dollars ($2,000), or by both that fine and imprisonment, or
by imprisonment in the state prison. 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.
(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. 22. Section 311.9 of the Penal Code is amended to read:
311.9. (a) Every person who violates subdivision (a) of Section
311.2 or Section 311.5 is punishable by fine of not more than one
thousand dollars ($1,000) plus five dollars ($5) for each additional
unit of material coming within the provisions of this chapter, which
is involved in the offense, not to exceed ten thousand dollars
($10,000), or by imprisonment in the county jail for not more than
six months plus one day for each additional unit of material coming
within the provisions of this chapter, and which is involved in the
offense, not to exceed a total of 360 days in the county jail, or by
both that fine and imprisonment. If that person has previously been
convicted of any offense in this chapter, or of a violation of
Section 313.1, a violation of subdivision (a) of Section 311.2 or
Section 311.5 is punishable as a felony.
(b) Every person who violates subdivision (a) of Section 311.4 is
punishable by fine of not more than two thousand dollars ($2,000) or
by imprisonment in the county jail for not more than one year, or by
both that fine and imprisonment, or by imprisonment in the state
prison. If that person has been previously convicted of a violation
of former Section 311.3 or Section 311.4 he or she is punishable by
imprisonment in the state prison.
(c) Every person who violates Section 311.7 is punishable by fine
of not more than one thousand dollars ($1,000) or by imprisonment in
the county jail for not more than six months, or by both that fine
and imprisonment. For a second and subsequent offense he or she shall
be punished by a fine of not more than two thousand dollars
($2,000), or by imprisonment in the county jail for not more than one
year, or by both that fine and imprisonment. If the person has been
twice convicted of a violation of this chapter, a violation of
Section 311.7 is punishable as a felony.
SEC. 23. Section 311.11 of the Penal Code is amended to read:
311.11. (a) Every person who knowingly possesses or controls any
matter, representation of information, data, or image, including, but
not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image
that contains or incorporates in any manner, any film or filmstrip,
the production of which involves the use of a person under the age of
18 years, knowing that the matter depicts a person under the age of
18 years personally engaging in or simulating sexual conduct, as
defined in subdivision (d) of Section 311.4, is guilty of a public
offense and shall be punished by imprisonment in the county jail for
up to one year, or by imprisonment in the state prison, or by a fine
not exceeding two thousand five hundred dollars ($2,500), or by both
the fine and imprisonment.
(b) Any person who commits a violation of subdivision (a) and who
has been previously convicted of a crime for which registration is
required pursuant to Section 290, or any person who has ever been
adjudicated 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, 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. 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, 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. 25. Section 626.81 is added to the Penal Code, to read:
626.81. (a) Any person who is required to register as a sex
offender pursuant to Section 290, who comes into any school building
or upon any school ground without lawful business thereon and written
permission from the chief administrative official of that school, is
guilty of a misdemeanor.
(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 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.
(c) Nothing in this section shall preclude or prohibit prosecution
under any other provision of law.
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
18 years of age 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, 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 16 years of age, 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 14 years of age 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 653g of the Penal Code is amended and renumbered
to read:
653b. (a) Except as provided in subdivision (b), every person who
loiters about any school or public place at or near which children
attend or normally congregate and who remains at any school or public
place at or near which children attend or normally congregate, or
who reenters or comes upon a school or place within 72 hours, after
being asked to leave by the chief administrative official of that
school or, in the absence of the chief
administrative official, the person acting as
the chief administrative official, or by a member of the security
patrol of the school district who has been given authorization, in
writing, by the chief administrative official of that school to act
as his or her agent in performing this duty, or a city police
officer, or sheriff or deputy sheriff, or Department of the
California Highway Patrol peace officer is a vagrant, and is
punishable by a fine of not exceeding one thousand dollars ($1,000)
or by imprisonment in the county jail for not exceeding six months,
or by both the fine and the imprisonment.
(b) Every person required to register as a sex offender who
violates subdivision (a) shall be punished as follows:
(1) Upon a first conviction, by a fine not exceeding two thousand
($2,000), by imprisonment in a county jail for a period of not more
than six months, or by both that fine and imprisonment.
(2) If the defendant has been previously convicted once of a
violation of this section or former Section 653g, 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 two
thousand dollars ($2,000), and shall not be released on probation,
parole, or any other basis until he or she has served at least 10
days.
(3) If the defendant has been previously convicted two or more
times of a violation of this section or former Section 653g, 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 two thousand dollars ($2,000), and shall not be released on
probation, parole, or any other basis until he or she has served at
least 90 days.
(c) As used in this section, "loiter" means to delay, to linger,
or to idle about a school or public place without lawful business for
being present.
(d) Nothing in this section shall preclude or prohibit prosecution
under any other provision of law.
SEC. 28. Section 653c is added to the Penal Code, to read:
653c. (a) No person required to register as a sex offender
pursuant to Section 290 for an offense committed against an elder or
dependent adult, as defined in Section 368, other than a resident of
the facility, shall enter or remain on the grounds of a day care or
residential facility where elders or dependent adults are regularly
present or living, without having registered with the facility
administrator or his or her designees, except to proceed
expeditiously to the office of the facility administrator or designee
for the purpose of registering.
(b) In order to register pursuant to subdivision (a), a sex
offender shall advise the facility administrator or designee that he
or she is a sex offender; provide his or her name, address, and
purpose for entering the facility; and provide proof of identity.
(c) The facility administrator may refuse to register, impose
restrictions on registration, or revoke the registration of a sex
offender if he or she has a reasonable basis for concluding that the
offender's presence or acts would disrupt, or have disrupted, the
facility, any resident, employee, volunteer, or visitor; would
result, or has resulted, in damage to property; the offender's
presence at the facility would interfere, or has interfered, with the
peaceful conduct of the activities of the facility; or would
otherwise place at risk the facility, or any employee, volunteer or
visitor.
(d) Punishment for any violation of this section shall be as
follows:
(1) Upon a first conviction by a fine of not exceeding two
thousand dollars ($2,000), by imprisonment in a county jail for a
period of not more than six months, or by both that 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 two thousand dollars
($2,000), and shall not be released on probation, parole, or any
other basis until he or she has served at least 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 two thousand
dollars ($2,000), and shall not be released on probation, parole, or
any other basis until he or she has served at least 90 days.
(e) Nothing in this section shall preclude or prohibit prosecution
under any other provision of law.
SEC. 29. Section 667.1 of the Penal Code is amended to read:
667.1. Notwithstanding subdivision (h) of Section 667, for all
offenses committed on or after the effective date of this act, all
references to existing statutes in subdivisions (c) to (g),
inclusive, of Section 667, are to those statutes as they existed on
the effective date of this act, including amendments made to those
statutes by the act enacted during the 2005-06 Regular Session that
amended this section.
SEC. 30. Section 667.5 of the Penal Code is amended to read:
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape, as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy, as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation, as defined in subdivision (c) or (d) of
Section 288a.
(6) A lewd or lascivious act, 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, 12022.8, 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
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration, as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418.
The Legislature finds and declares that these specified crimes
merit special consideration when imposing a sentence to display
society's condemnation for these extraordinary crimes of violence
against the person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Secretary of the Department
of Corrections and Rehabilitation is incarcerated at a facility
operated by the Division of Juvenile Facilities, that incarceration
shall be deemed to be a term served in state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
SEC. 31. Section 667.51 of the Penal Code is amended to read:
667.51. (a) Any person who is convicted of violating Section 288
or 288.5 shall receive a five-year enhancement for a prior conviction
of an offense specified in subdivision (b).
(b) Section 261, 262, 264.1, 269, 285, 286, 288, 288a, 288.5, or
289, or any offense committed in another jurisdiction that includes
all of the elements of any of the offenses specified in this
subdivision.
(c) A violation of Section 288 or 288.5 by a person who has been
previously convicted two or more times of an offense specified in
subdivision (b) shall be punished by imprisonment in the state prison
for 15 years to life.
SEC. 32. Section 667.6 of the Penal Code is amended to read:
667.6. (a) Any person who is convicted of an offense specified in
subdivision (e) and who has been convicted previously of any of
those offenses shall receive a five-year enhancement for each of
those prior convictions.
(b) Any person who is convicted of an offense specified in
subdivision (e) and who has served two or more prior prison terms as
defined in Section 667.5 for any of those offenses, shall receive a
10-year enhancement for each of those prior terms.
(c) In lieu of the term provided in Section 1170.1, a full,
separate, and consecutive term may be imposed for each violation of
an offense specified in subdivision (e) if the crimes involve the
same victim on the same occasion. A term may be imposed consecutively
pursuant to this subdivision if a person is convicted of at least
one offense specified in subdivision (e). If the term is imposed
consecutively pursuant to this subdivision, it shall be served
consecutively to any other term of imprisonment, and shall commence
from the time the person otherwise would have been released from
imprisonment. The term shall not be included in any determination
pursuant to Section 1170.1. Any other term imposed subsequent to that
term shall not be merged therein but shall commence at the time the
person otherwise would have been released from prison.
(d) A full, separate, and consecutive term shall be imposed for
each violation of an offense specified in subdivision (e) if the
crimes involve separate victims or involve the same victim on
separate occasions.
In determining whether crimes against a single victim were
committed on separate occasions under this subdivision, the court
shall consider whether, between the commission of one sex crime and
another, the defendant had a reasonable opportunity to reflect upon
his or her actions and nevertheless resumed sexually assaultive
behavior. Neither the duration of time between crimes, nor whether or
not the defendant lost or abandoned his or her opportunity to
attack, shall be, in and of itself, determinative on the issue of
whether the crimes in question occurred on separate occasions.
The term shall be served consecutively to any other term of
imprisonment and shall commence from the time the person otherwise
would have been released from imprisonment. The term shall not be
included in any determination pursuant to Section 1170.1. Any other
term imposed subsequent to that term shall not be merged therein but
shall commence at the time the person otherwise would have been
released from prison.
(e) This section shall apply to the following offenses:
(1) Rape, in violation of paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261.
(2) Spousal rape, in violation of paragraph (1), (4), or (5) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d) or (k), of Section 286.
(5) 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) (1) In addition to any enhancement imposed pursuant to
subdivision (a) or (b), the court may also impose a fine not to
exceed twenty thousand dollars ($20,000) for anyone sentenced under
those provisions. The fine imposed and collected pursuant to this
subdivision shall be deposited in the Victim-Witness Assistance Fund
to be available for appropriation to fund child sexual exploitation
and child sexual abuse victim counseling centers and prevention
programs established pursuant to Section 13837.
(2) If the court orders a fine to be imposed pursuant to this
subdivision, 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. 33. Section 667.61 of the Penal Code is amended to read:
667.61. (a) Any person who is convicted of an offense specified
in subdivision (c) under one or more of the circumstances specified
in subdivision (d) or under two or more of the circumstances
specified in subdivision (e) shall be punished by imprisonment in the
state prison for 25 years to life.
(b) Except as provided in subdivision (a), any person who is
convicted of an offense specified in subdivision (c) under one of the
circumstances specified in subdivision (e) shall be punished by
imprisonment in the state prison for 15 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) A lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(8) A lewd or lascivious act, in violation of subdivision (a) of
Section 288.
(9) Continuous sexual abuse of a child, in violation of Section
288.5.
(d) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c).
(2) The defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily inherent
in the underlying offense in subdivision (c).
(3) The defendant inflicted aggravated mayhem or torture on the
victim or another person in the commission of the present offense in
violation of Section 205 or 206.
(4) The defendant committed the present offense during the
commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460, with intent to commit an offense
specified in subdivision (c).
(5) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (2), (3), or (4) of this
subdivision.
(e) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) Except as provided in paragraph (2) of subdivision (d), the
defendant kidnapped the victim of the present offense in violation of
Section 207, 209, or 209.5.
(2) Except as provided in paragraph (4) of subdivision (d), the
defendant committed the present offense during the commission of a
burglary, in violation of Section 459.
(3) The defendant personally inflicted great bodily injury on the
victim or another person in the commission of the present offense in
violation of Section 12022.53, 12022.7, or 12022.8.
(4) The defendant personally used a dangerous or deadly weapon or
a firearm in the commission of the present offense in violation of
Section 12022, 12022.3, 12022.5, or 12022.53.
(5) The defendant has been convicted in the present case or cases
of committing an offense specified in subdivision (c) against more
than one victim.
(6) The defendant engaged in the tying or binding of the victim or
another person in the commission of the present offense.
(7) The defendant administered a controlled substance to the
victim in the commission of the present offense in violation of
Section 12022.75.
(8) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (1), (2), (3), (4), (6), or
(7) of this subdivision.
(f) If only the minimum number of circumstances specified in
subdivision (d) or (e) that are required for the punishment provided
in subdivision (a) or (b) to apply have been pled and proved, that
circumstance or those circumstances shall be used as the basis for
imposing the term provided in subdivision (a) or (b), whichever is
greater, rather than being used to impose the punishment authorized
under any other provision of law, unless another provision of law
provides for a greater penalty, or the punishment under another
provision of law may be imposed in addition to the punishment
provided by this section. However, if any additional circumstance or
circumstances specified in subdivision (d) or (e) have been pled and
proved, the minimum number of circumstances shall be used as the
basis for imposing the term provided in subdivision (a), and any
other additional circumstance or circumstances shall be used to
impose any punishment or enhancement authorized under any other
provision of law.
(g) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any of the circumstances specified in subdivision (d) or (e) for any
person who is subject to punishment under this section.
(h) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under this
section.
(i) For any offense specified in paragraphs (1) to (7), inclusive,
of subdivision (c), the court shall impose a consecutive sentence
for each offense that results in a conviction under this section if
the crimes involve separate victims or involve the same victim on
separate occasions, as defined in subdivision (d) of Section 667.6.
(j) The penalties provided in this section shall apply only if the
existence of any circumstance specified in subdivision (d) or (e) is
alleged in the accusatory pleading pursuant to this section and
either admitted by the defendant in open court or found to be true by
the trier of fact.
SEC. 34. Section 667.71 of the Penal Code is amended to read:
667.71. (a) For the purpose of this section, a habitual sexual
offender is a person who has been previously convicted of one or more
of the offenses specified in subdivision (c) and who is convicted in
the present proceeding of one of those offenses.
(b) A habitual sexual offender shall be punished by imprisonment
in the state prison for 25 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) A lewd or lascivious act, in violation of subdivision (a) or
(b) of Section 288.
(5) Sexual penetration, in violation of subdivision (a) or (j) of
Section 289.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Sodomy, in violation of subdivision (c) or (d) of Section 286.
(8) Oral copulation, in violation of subdivision (c) or (d) of
Section 288a.
(9) Kidnapping, in violation of subdivision (b) of Section 207.
(10) Kidnapping, in violation of former subdivision (d) of
Section 208 (kidnapping to commit specified sex offenses).
(11) Kidnapping, in violation of subdivision (b) of Section 209
with the intent to commit a specified sexual offense.
(12) Aggravated sexual assault of a child, in violation of
Section 269.
(13) An offense committed in another jurisdiction that includes
all of the elements of an offense specified in this subdivision.
(d) Notwithstanding 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.
(e) This section shall apply only if the defendant's status as a
habitual sexual offender is alleged in the accusatory pleading, and
either admitted by the defendant in open court, or found to be true
by the trier of fact.
SEC. 35. Section 801.2 is added to the Penal Code, to read:
801.2. Notwithstanding any other limitation of time prescribed in
this chapter, 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. 36. Section 1170.125 of the Penal Code is amended to read:
1170.125. Notwithstanding Section 2 of Proposition 184, as
adopted at the November 8, 1994, general election, for all offenses
committed on or after the effective date of this act, all references
to existing statutes in Section 1170.12 are to those statutes as they
existed on the effective date of this act, including amendments made
to those statutes by the act enacted during the 2005-06 Regular
Session that amended this section.
SEC. 37. 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. 38. 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 was convicted of an offense that requires him or
her to register as a sex offender pursuant to Section 290, the
probation officer's report shall include the results of the
State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO)
administered pursuant to Sections 290.04 to 290.06, inclusive, if
applicable.
(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 SARATSO, if applicable, 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
person was convicted of an offense that requires him or her to
register as a sex offender pursuant to Section 290, the court shall
refer the matter to the probation officer for the purpose of
obtaining a report on the results of the State-Authorized Risk
Assessment Tool for Sex Offenders administered pursuant to Sections
290.04 to 290.06, inclusive, if applicable, which the court shall
consider. 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.
SEC. 39. 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 that requires him or her to
register as a sex offender pursuant to Section 290, the probation
officer shall include in the report the results of the
State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO)
administered pursuant to Sections 290.04 to 290.06, inclusive, if
applicable.
(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. 40. Section 1203e is added to the Penal Code, to read:
1203e. (a) Commencing June 1, 2010, the probation department
shall compile a Facts of Offense Sheet for every person convicted of
an offense that requires him or her to register as a sex offender
pursuant to Section 290 who is referred to the department pursuant to
Section 1203. The Facts of Offense Sheet shall contain the following
information concerning the offender: name; CII number; criminal
history, including all arrests and convictions for any registerable
sex offenses or any violent offense; circumstances of the offense for
which registration is required, including, but not limited to,
weapons used and victim pattern; and results of the State-Authorized
Risk Assessment Tool for Sex Offenders (SARATSO), as set forth in
Section 290.04, if required. The Facts of Offense Sheet shall be
included in the probation officer's report.
(b) The defendant may move the court to correct the Facts of
Offense Sheet. Any corrections to that sheet shall be made consistent
with procedures set forth in Section 1204.
(c) The probation officer shall send a copy of the Facts of
Offense Sheet to the Department of Justice Sex Offender Tracking
Program within 30 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.
(d) 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. 41. Section 1203f is added to the Penal Code, to read:
1203f. Every probation department shall ensure that all
probationers under active supervision who are deemed to pose a high
risk to the public of committing sex crimes, as determined by the
State-Authorized Risk Assessment Tool for Sex Offenders, as set forth
in Sections 290.04 to 290.06, inclusive, are placed on intensive and
specialized probation supervision and are required to report
frequently to designated probation officers. The probation department
may place any other probationer convicted of an offense that
requires him or her to register as a sex offender who is on active
supervision to be placed on intensive and specialized supervision and
require him or her to report frequently to designated probation
officers.
SEC. 42. Section 1203.06 of the Penal Code is amended to read:
1203.06. (a) Notwithstanding any other provision of law,
probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, nor shall a finding bringing
the defendant within this section be stricken pursuant to Section
1385 for, any of the following persons:
(1) Any person who personally used a firearm during the commission
or attempted commission of any of the following crimes:
(A) Murder.
(B) Robbery, in violation of Section 211.
(C) Kidnapping, in violation of Section 207, 209, or 209.5.
(D) A lewd or lascivious act, in violation of Section 288.
(E) Burglary of the first degree, as defined in Section 460.
(F) Rape, in violation of Section 261, 262, or 264.1.
(G) Assault with intent to commit a specified sexual offense, in
violation of Section 220.
(H) Escape, in violation of Section 4530 or 4532.
(I) Carjacking, in violation of Section 215.
(J) Aggravated mayhem, in violation of Section 205.
(K) Torture, in violation of Section 206.
(L) Continuous sexual abuse of a child, in violation of Section
288.5.
(M) A felony violation of Section 136.1 or 137.
(N) Sodomy, in violation of Section 286.
(O) Oral
copulation, in violation of Section 288a.
(P) Sexual penetration, in violation of Section 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
paragraph (1), or assault with intent to commit murder under former
Section 217, who is convicted of a subsequent felony and who was
personally armed with a firearm at any time during its commission or
attempted commission or was unlawfully armed with a firearm at the
time of his or her arrest for the subsequent felony.
(3) Aggravated arson, in violation of Section 451.5.
(b) (1) The existence of any fact that would make a person
ineligible for probation under subdivision (a) shall be alleged in
the accusatory pleading, and either admitted by the defendant in open
court, or found to be true by the trier of fact.
(2) As used in subdivision (a), "used a firearm" means to display
a firearm in a menacing manner, to intentionally fire it, to
intentionally strike or hit a human being with it, or to use it in
any manner that qualifies under Section 12022.5.
(3) As used in subdivision (a), "armed with a firearm" means to
knowingly carry or have available for use a firearm as a means of
offense or defense.
SEC. 43. Section 1203.065 of the Penal Code is amended to read:
1203.065. (a) Notwithstanding any other provision of law,
probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, any person who is convicted
of violating paragraph (2) or (6) of subdivision (a) of Section 261,
Section 264.1, 266h, 266i, 266j, or 269, or paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 286 or 288a, or
subdivision (a) of Section 289, or subdivision (c) of Section 311.4.
(b) (1) Except in unusual cases where the interests of justice
would best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of violating
paragraph (7) of subdivision (a) of Section 261, subdivision (k) of
Section 286, subdivision (k) of Section 288a, subdivision (g) of
Section 289, or Section 220 for assault with intent to commit a
specified sexual offense.
(2) When probation is granted, the court shall specify on the
record and shall enter on the minutes the circumstances indicating
that the interests of justice would best be served by the
disposition.
SEC. 44. Section 1203.075 of the Penal Code is amended to read:
1203.075. (a) Notwithstanding any other provision of law,
probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, nor shall a finding bringing
the defendant within this section be stricken pursuant to Section
1385 for, any person who personally inflicts great bodily injury, as
defined in Section 12022.7, on the person of another in the
commission or attempted commission of any of the following crimes:
(1) Murder.
(2) Robbery, in violation of Section 211.
(3) Kidnapping, in violation of Section 207, 209, or 209.5.
(4) A lewd or lascivious act, in violation of Section 288.
(5) Burglary of the first degree, as defined in Section 460.
(6) Rape, in violation of Section 261, 262, or 264.1.
(7) Assault with intent to commit a specified sexual offense, in
violation of Section 220.
(8) Escape, in violation of Section 4530 or 4532.
(9) Sexual penetration, in violation of Section 289 or 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) Continuous sexual abuse of a child, in violation of Section
288.5.
(14) Aggravated sexual assault of a child, in violation of Section
269.
(b) The existence of any fact that would make a person ineligible
for probation under subdivision (a) shall be alleged in the
accusatory pleading, and either admitted by the defendant in open
court, or found to be true by the trier of fact.
SEC. 45. 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,
including conditional release under court monitoring, if any. The
period during which parole is tolled shall include the filing of a
petition for commitment, hearing on probable cause, trial
proceedings, actual commitment, and any time spent on conditional
release under court monitoring. Parole shall be tolled through any
subsequent evaluation and commitment proceedings, actual commitment,
and any time spent on conditional release under court monitoring.
Time spent on conditional release under the supervision of the court
shall be subtracted from the person's 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, an inmate sentenced for an offense
specified in paragraph (3), (4), (5), (6), (11), (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) Notwithstanding paragraphs (1) and (2), in the case of any
offense for which the inmate has received a life sentence pursuant to
subdivision (b) of Section 209, with the intent to commit a
specified sexual offense, Section 269, 288.7, 667.51, 667.61, or
667.71, the period of parole shall be 10 years.
(4) The parole authority shall consider the request of any inmate
regarding the length of his or her parole and the conditions thereof.
(5) Upon successful completion of parole, or at the end of the
maximum statutory period of parole specified for the inmate under
paragraph (1), (2), or (3), whichever is earlier, the inmate shall be
discharged from custody. The date of the maximum statutory period of
parole under this subdivision and paragraphs (1), (2), and (3) shall
be computed from the date of initial parole and shall be a period
chronologically determined. Time during which parole is suspended
because the prisoner has absconded or has been returned to custody as
a parole violator shall not be credited toward any period of parole
unless the prisoner is found not guilty of the parole violation.
However, the period of parole is subject to the following:
(A) Except as provided in Section 3064, an inmate subject to three
years on parole may not be retained under parole supervision or in
custody for a period longer than four years from the date of his or
her initial parole.
(B) Except as provided in Section 3064, an inmate subject to five
years on parole may not be retained under parole supervision or in
custody for a period longer than seven years from the date of his or
her initial parole.
(C) Except as provided in Section 3064, an inmate subject to 10
years on parole may not be retained under parole supervision or in
custody for a period longer than 15 years from the date of his or her
initial parole.
(6) The Department of Corrections and Rehabilitation shall meet
with each inmate at least 30 days prior to his or her good time
release date and shall provide, under guidelines specified by the
parole authority, the conditions of parole and the length of parole
up to the maximum period of time provided by law. The inmate has the
right to reconsideration of the length 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.
(7) For purposes of this chapter, the Board of Parole Hearings
shall be considered the parole authority.
(8) The sole authority to issue warrants for the return to actual
custody of any 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.
(9) 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. 46. Section 3001 of the Penal Code is amended to read:
3001. (a) (1) Notwithstanding any other provision of law, when
any person referred to in paragraph (1) of subdivision (b) of Section
3000 who was not imprisoned for committing a violent felony, as
defined in subdivision (c) of Section 667.5, has been released on
parole from the state prison, and has been on parole continuously for
one year since release from confinement, within 30 days, that person
shall be discharged from parole, unless the Department of
Corrections and Rehabilitation recommends to the Board of Parole
Hearings that the person be retained on parole and the board, for
good cause, determines that the person will be retained.
(2) Notwithstanding any other provision of law, when any person
referred to in paragraph (1) of subdivision (b) of Section 3000 who
was imprisoned for committing a violent felony, as defined in
subdivision (c) of Section 667.5, has been released on parole from
the state prison for a period not exceeding three years and has been
on parole continuously for two years since release from confinement,
or has been released on parole from the state prison for a period not
exceeding 10 years and has been on parole continuously for six years
since release from confinement, the department shall discharge,
within 30 days, that person from parole, unless the department
recommends to the board that the person be retained on parole and the
board, for good cause, determines that the person will be retained.
The board shall make a written record of its determination and the
department shall transmit a copy thereof to the parolee.
(b) Notwithstanding any other provision of law, when any person
referred to in paragraph (2) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for three years since release from confinement, the
board shall discharge, within 30 days, the person from parole, unless
the board, for good cause, determines that the person will be
retained on parole. The board shall make a written record of its
determination and the department shall transmit a copy thereof to the
parolee.
(c) Notwithstanding any other provision of law, when any person
referred to in paragraph (3) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for six years since release from confinement, the board
shall discharge, within 30 days, the person from parole, unless the
board, for good cause, determines that the person will be retained on
parole. The board shall make a written record of its determination
and the department shall transmit a copy thereof to the parolee.
(d) In the event of a retention on parole, the parolee shall be
entitled to a review by the parole authority each year thereafter
until the maximum statutory period of parole has expired.
(e) The amendments to this section made during the 2005-06 Regular
Session of the Legislature shall only be applied prospectively and
shall not extend the parole period for any person whose eligibility
for discharge from parole was fixed as of the effective date of those
amendments.
SEC. 47. 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 who are deemed to
pose a high risk to the public of committing sex crimes, as
determined by the State-Authorized Risk Assessment Tool for Sex
Offenders, as set forth in Sections 290.04 to 290.06, inclusive, are
placed on intensive and specialized parole supervision and are
required to report frequently to designated parole officers. The
department may place any other parolee convicted of an offense that
requires him or her to register as a sex offender pursuant to Section
290 who is on active supervision on intensive and specialized
supervision and require him or her 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. 48. Section 3072 is added to the Penal Code, to read:
3072. (a) The Department of Corrections and Rehabilitation,
subject to the legislative appropriation of the necessary funds, may
establish and operate, after January 1, 2007, a specialized sex
offender treatment pilot program for inmates whom the department
determines pose a high risk to the public of committing violent sex
crimes.
(b) (1) The program shall be based upon the relapse prevention
model and shall include referral to specialized services, such as
substance abuse treatment, for offenders needing those specialized
services.
(2) Except as otherwise required under Section 645, the department
may provide medication treatments for selected offenders, as
determined by medical protocols, and only on a voluntary basis and
with the offender's informed consent.
(c) (1) The program shall be targeted primarily at adult sex
offenders who meet the following conditions:
(A) The offender is within five years of being released on parole.
An inmate serving a life term may be excluded from treatment until
he or she receives a parole date and is within five years of that
parole date, unless the department determines that the treatment is
necessary for the public safety.
(B) The offender has been clinically assessed.
(C) A review of the offender's criminal history indicates that the
offender poses a high risk of committing new sex offenses upon his
or her release on parole.
(D) Based upon the clinical assessment, the offender may be
amenable to treatment.
(2) The department may include other appropriate offenders in the
treatment program if doing so facilitates the effectiveness of the
treatment program.
(3) Notwithstanding any other provision of law, inmates who are
condemned to death or sentenced to life without the possibility of
parole are ineligible to participate in treatment.
(d) The program under this section shall be established with the
assistance and supervision of the staff of the department primarily
by obtaining the services of specially trained sex offender treatment
providers, as determined by the secretary of the department and the
Director of the Department of Mental Health.
(e) (1) The program under this section, upon full implementation,
shall provide for the treatment of inmates who are deemed to pose a
high risk to the public of committing sex crimes, as determined by
the State-Authorized Risk Assessment Tool for Sex Offenders, pursuant
to Sections 290.04 to 290.06, inclusive.
(2) To the maximum extent that is practical and feasible,
offenders participating in the treatment program shall be held in a
separate area of the prison facility, segregated from any non-sex
offenders held at the same prison, and treatment in the pilot program
shall be provided in program space segregated, to the maximum extent
that is practical and feasible, from program space for any non-sex
offenders held at the same prison.
(f) (1) The Department of Mental Health, by January 1, 2012, shall
provide a report evaluating the program to the fiscal and public
safety policy committees of both houses of the Legislature, and to
the Joint Legislative Budget Committee.
(2) The report shall initially evaluate whether the program under
this section is operating effectively, is having a positive clinical
effect on participating sex offenders, and is cost effective for the
state.
(3) In conducting its evaluation, the Department of Mental Health
shall consider the effects of treatment of offenders while in prison
and while subsequently on parole.
(4) The Department of Mental Health shall advise the Legislature
as to whether the program should be continued past its expiration
date, expanded, or concluded.
SEC. 49. Section 12022.75 of the Penal Code is amended to read:
12022.75. (a) Except as provided in subdivision (b), any person
who, for the purpose of committing a felony, administers by
injection, inhalation, ingestion, or any other means, any controlled
substance listed in Section 11054, 11055, 11056, 11057, or 11058 of
the Health and Safety Code, against the victim's will by means of
force, violence, or fear of immediate and unlawful bodily injury to
the victim or another person, shall, in addition and consecutive to
the penalty provided for the felony or attempted felony of which he
or she has been convicted, be punished by an additional term of three
years.
(b) (1) Any person who, in the commission or attempted commission
of any offense specified in paragraph (2), administers any controlled
substance listed in Section 11054, 11055, 11056, 11057, or 11058 of
the Health and Safety Code to the victim shall be punished by an
additional and consecutive term of imprisonment in the state prison
for five years.
(2) This subdivision shall apply to the following offenses:
(A) Rape, in violation of paragraph (3) or (4) of subdivision (a)
of Section 261.
(B) Sodomy, in violation of subdivision (f) or (i) of Section 286.
(C) Oral copulation, in violation of subdivision (f) or (i) of
Section 288a.
(D) Sexual penetration, in violation of subdivision (d) or (e) of
Section 289.
(E) Any offense specified in subdivision (c) of Section 667.61.
SEC. 50. Section 13887 of the Penal Code is amended to read:
13887. Any county may establish and implement a sexual assault
felony enforcement (SAFE) team program pursuant to the provisions of
this chapter.
SEC. 51. 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 Chapter 5.5 (commencing with
Section 290) of Title 9 of Part 2. 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 the importance of using the knowledge of the
presence of registered sex offenders in the community to enhance
public safety.
(3) 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. 52. Section 13887.5 is added to the Penal Code, to read:
13887.5. The Office of Emergency Services shall establish
standards by which grants are awarded on a competitive basis to
counties for SAFE teams. The grants shall be awarded to innovative
teams designed to promote the purposes of this chapter.
SEC. 53. 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, fear of immediate and
unlawful bodily injury on the victim or another person, or
threatening to retaliate in the future against the victim or any
other person, and that are committed on, before, or after the
effective date of this article and result in a conviction or a
finding of not guilty by reason of insanity, as defined in
subdivision (a): a felony violation of Section 261, 262, 264.1, 269,
286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony
violation of Section 207, 209, or 220 of the Penal Code, committed
with the intent to commit a violation of Section 261, 262, 264.1,
269, 286, 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. 54. 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. 55. Section 6604 of the Welfare and Institutions Code is
amended to read:
6604. The court or jury shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator. If the
court or jury is not satisfied beyond a reasonable doubt that the
person is a sexually violent predator, the court shall direct that
the person be released at the conclusion of the term for which he or
she was initially sentenced, or that the person be unconditionally
released at the end of parole, whichever is applicable. If the court
or jury determines that the person is a sexually violent predator,
the person shall be committed for an indeterminate term to the
custody of the State Department of Mental Health for appropriate
treatment and confinement in a secure facility designated by the
Director of Mental Health. Time spent on conditional release shall
not count toward the 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 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. 56. Section 6604.1 of the Welfare and Institutions Code is
amended to read:
6604.1. (a) The indeterminate term of commitment provided for in
Section 6604 shall commence on the date upon which the court issues
the initial order of commitment pursuant to that section.
(b) The person shall be evaluated by two practicing psychologists
or psychiatrists, or by one practicing psychologist and one
practicing psychiatrist, designated by the State Department of Mental
Health. The provisions of subdivisions (c) to (i), inclusive, of
Section 6601 shall apply to evaluations performed 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
all commitment proceedings.
SEC. 57. 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 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. The committed person's
failure to engage in treatment shall be considered evidence that his
or her condition has not changed, for purposes of any court
proceeding held pursuant to this section, and a jury shall be so
instructed. Completion of treatment programs shall be a condition of
release.
(e) If the court or jury rules against the committed person at the
hearing conducted pursuant to subdivision (d), the term of
commitment of the person shall run for an indeterminate period from
the date of this ruling. If the court or jury rules for the committed
person, he or she shall be unconditionally released and
unconditionally discharged.
(f) In the event that the State Department of Mental Health has
reason to believe that a person committed to it as a sexually violent
predator is no longer a sexually violent predator, it shall seek
judicial review of the person's commitment pursuant to the procedures
set forth in Section 7250 in the superior court from which the
commitment was made. If the superior court determines that the person
is no longer a sexually violent predator, he or she shall be
unconditionally released and unconditionally discharged.
SEC. 58. The sum of four hundred ninety-five thousand dollars
($495,000) is hereby appropriated from the General Fund to the Office
of Emergency Services, Division of Criminal Justice Programs for
child abuse and abduction programs that provide prevention education
to children in schools, and parents, teachers, and service providers.
The objective of the programs shall be to increase awareness of the
problem of child abduction, and basic knowledge of how children can
help to protect themselves from being abducted. The programs may
include a media component to build awareness of the problem within
communities.
SEC. 59. The provisions of this act are severable. If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
SEC. 60. Section 19.5 of this bill incorporates amendments to
Section 290.46 of the Penal Code proposed by both this bill and
Assembly Bill 1849. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2007, but
this bill becomes operative first, (2) each bill amends Section
290.46 of the Penal Code, and (3) this bill is enacted after Assembly
Bill 1849, in which case Section 290.46 of the Penal Code, as
amended by Section 19 of this bill, shall remain operative only until
the operative date of Assembly Bill 1849, at which time Section 19.5
of this bill shall become operative.
SEC. 61. 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. 62. 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.