BILL NUMBER: SB 110 AMENDED BILL TEXT AMENDED IN ASSEMBLY AUGUST 31, 2007 AMENDED IN ASSEMBLY AUGUST 20, 2007 AMENDED IN SENATE MARCH 14, 2007 INTRODUCED BY Senators Romero and Perata ( Principal coauthor: Senator Migden ) ( Principal coauthor: Assembly Member Leno ) (Coauthors: Senators Alquist, Kuehl, Machado, Negrete McLeod, Scott, and Vincent) (Coauthor: Assembly Member Hancock) JANUARY 18, 2007 An act to amend Sections 11105, 11150.6, 11153, 11162.5, 11162.6, 11350, 11351, 11351.5, 11352, 11352.1, 11353, 11353.1, 11353.4, 11353.5, 11353.6, 11353.7, 11354, 11355, 11356.5, 11357, 11358, 11359, 11360, 11361, 11363, 11364.7, 11366, 11366.5, 11366.6, 11366.7, 11366.8, 11368, 11370, 11370.1, 11370.2, 11370.4, 11370.6, 11370.9, 11371, 11371.1, 11372, 11374, 11374.5, 11375, 11377, 11378, 11378.5, 11379, 11379.2, 11379.5, 11379.6, 11379.7, 11379.8, 11379.9, 11380, 11380.1, 11380.7, 11382, 11383, 11383.5, 11383.6, 11383.7, 11390, 11391, 11536, and 11550, of the Health and Safety Code, to amend Sections 18, 19, 126, 186.10, 186.11, 191.5, 193, 193.5, 204, 205, 208, 209, 209.5, 210, 210.5, 213, 214, 215, 220, 222, 236.1, 237, 241, 241.1, 241.2, 241.3, 241.4, 241.6, 241.7, 241.8, 243, 243.10, 243.2, 243.25, 243.3, 243.35, 243.4, 243.6, 243.7, 243.8, 243.9, 244, 244.5, 245, 245.2, 245.3, 245.5, 245.6, 246, 246.3, 247, 247.5, 261.5, 264, 264.1, 266, 266a, 266b, 266c, 266d, 266e, 266f, 266g, 266h, 266i, 266j, 266k, 267, 269, 270, 271, 271a, 272, 273a, 273ab, 273d, 273.4, 273.5, 273.6, 273.65, 278, 278.5, 280, 285, 286, 286.5, 288, 288a, 288.2, 288.3, 288.5, 288.7, 289, 289.5, 289.6, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, 311.7, 311.9, 311.10, 311.11, 313.4, 314, 368, 380, 381, 381b, 422, 422.75, 451, 451.1, 451.5, 452, 452.1, 453, 454, 455, 456, 461, 462, 462.5, 463, 473, 474, 476a, 478, 479, 487, 487a, 487b, 487c, 487d, 487e, 487f, 487g, 487h, 488, 489, 490, 490.1, 490.5, 490.7, 496, 498, 499, 499b, 499c, 499d, 520, 524, 530.5, 646.9, 664, 666, 666.5, 667.10, 667.15, 667.16, 667.17, 667.5, 667.51, 667.6, 667.61, 667.7, 667.71, 667.75, 667.8, 667.85, 667.9, 668, 674, 675, 2931, 2932, 2932.5, 2933, 2933.1, 2933.2, 2933.3, 2933.4, 2933.5, 2933.6,3000.1, 30003000, 3000.1 , 3001, 3046, 3049, 3057, 4019, 12022, 12022.1, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.55, 12022.6, 12022.7, 12022.75, 12022.8, 12022.85, 12022.9, and 12022.95 of, and to add Title 6.5 (commencing with Section 4950) to Part 3 of, the Penal Code, relating to sentencing. LEGISLATIVE COUNSEL'S DIGEST SB 110, as amended, Romero. Sentencing commission. Existing law prescribes various penalties for criminal offenses. This bill would state legislative findings and declarations regarding criminal sentencing laws and policies. This bill would create the California Sentencing Commission, chaired by the Chief Justice of the California Supreme Court, and comprised as specified, to develop and implement a new sentencing system, that would develop rules for sentences imposed for infractions, misdemeanors, alternate felonies or misdemeanors, and felonies, and rules for parole. The commission also would be required to make recommendations to the Legislature regarding criminal laws established by voter initiative, prepare correctional population projections for the sentencing system, serve as a resource for sentencing policy, develop information systems to track criminal cases entering the courts, assemble information on the effectiveness of sentences imposed, and investigate the existence of discrimination or inequities in the sentencing and corrections systems, as specified. Any rules promulgated by the commission would take effect on January 1 of the year following the year that the commission presents the rules to the Legislature, if the Legislature does not reject the rules by a statute that is passed by2/3a majority vote of each house of the Legislature and signed by the Governor . Any rule that is rejected by the Legislature would not take effect. This bill would amend various sections of the code that currently impose a sentence for a crime by providing that crime would be punishable, alternatively, on or after the operative date of any applicable sentencing rules proposed by the commission, as provided in those rules. Because the bill would authorize a state agency to change the punishment for several crimes, the bill would impose a state- mandated local program. This bill would require various local governmental agencies to provide certain services, personnel, equipment, facilities, and information to the commission, upon request of the commission. Because the bill would impose new duties on local agencies, the bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that 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. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:noyes . THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 11105 of the Health and Safety Code is amended to read: 11105. (a) It is unlawful for any person to knowingly make a false statement in connection with any report or record required under this article. (b) (1) Any person who violates this section shall be punished by imprisonment in the state prison, or by imprisonment in the county jail not exceeding one year, or by a fine not exceeding five thousand dollars ($5,000), or by both such fine and imprisonment. (2) Any person who has been previously convicted of violating this section and who subsequently violates this section shall be punished by imprisonment in the state prison for two, three, or four years, or by a fine not exceeding one hundred thousand dollars ($100,000), or by both such fine and imprisonment. (3) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a first or subsequent violation of this subdivision is punishable as provided in the applicable sentencing rules. SEC. 2. Section 11150.6 of the Health and Safety Code is amended to read: 11150.6. Notwithstanding Section 11150.5 or subdivision (a) of Section 11054, methaqualone, its salts, isomers, and salts of its isomers shall be deemed to be classified in Schedule I for the purposes of this chapter or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, they shall be included in the schedule provided in the applicable sentencing rules. SEC. 3. Section 11153 of the Health and Safety Code is amended to read: 11153. (a) A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. Except as authorized by this division, the following are not legal prescriptions: (1) an order purporting to be a prescription which is issued not in the usual course of professional treatment or in legitimate and authorized research; or (2) an order for an addict or habitual user of controlled substances, which is issued not in the course of professional treatment or as part of an authorized narcotic treatment program, for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use. (b) Any person who knowingly violates this section shall be punished by imprisonment in the state prison or in the county jail not exceeding one year, or by a fine not exceeding twenty thousand dollars ($20,000), or by both a fine and imprisonment or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, shall be punished as provided in the applicable sentencing rules. (c) No provision of the amendments to this section enacted during the second year of the 1981-82 Regular Session shall be construed as expanding the scope of practice of a pharmacist. SEC. 4. Section 11162.5 of the Health and Safety Code is amended to read: 11162.5. (a) Every person who counterfeits a prescription blank purporting to be an official prescription blank prepared and issued pursuant to Section 11161.5, or knowingly possesses more than three counterfeited prescription blanks, shall be punished by imprisonment in the state prison or by imprisonment in a county jail for not more than one year. (b) Every person who knowingly possesses three or fewer counterfeited prescription blanks purporting to be official prescription blanks prepared and issued pursuant to Section 11161.5, shall be guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 5. Section 11162.6 of the Health and Safety Code is amended to read: 11162.6. (a) Every person who counterfeits a controlled substance prescription form shall be guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. (b) Every person who knowingly possesses a counterfeited controlled substance prescription form shall be guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. (c) Every person who attempts to obtain or obtains a controlled substance prescription form under false pretenses shall be guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. (d) Every person who fraudulently produces controlled substance prescription forms shall be guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 6. Section 11350 of the Health and Safety Code is amended to read: 11350. (a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison. (b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in the county jail for not more than one year or in the state prison. (c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant' s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 7. Section 11351 of the Health and Safety Code is amended to read: 11351. (a) Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment in the state prison for two, three, or four years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 8. Section 11351.5 of the Health and Safety Code is amended to read: 11351.5. (a) Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054, shall be punished by imprisonment in the state prison for a period of three, four, or five years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 9. Section 11352 of the Health and Safety Code is amended to read: 11352. (a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 10. Section 11352.1 of the Health and Safety Code is amended to read: 11352.1. (a) The Legislature hereby declares that the dispensing and furnishing of prescription drugs, controlled substances, and dangerous drugs or dangerous devices without a license poses a significant threat to the health, safety, and welfare of all persons residing in the state. It is the intent of the Legislature in enacting this provision to enhance the penalties attached to this illicit and dangerous conduct. (b) Notwithstanding Section 4321 of the Business and Professions Code, and in addition to any other penalties provided by law, any person who knowingly and unlawfully dispenses or furnishes a dangerous drug or dangerous device, or any material represented as, or presented in lieu of, any dangerous drug or dangerous device, as defined in Section 4022 of the Business and Professions Code, or who knowingly owns, manages, or operates a business that dispenses or furnishes a dangerous drug or dangerous device or any material represented as, or presented in lieu of, any dangerous drug or dangerous device, as defined in Section 4022 of the Business and Professions Code without a license to dispense or furnish these products, shall be guilty of a misdemeanor. Upon the first conviction, each violation shall be punishable by imprisonment in a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000), or by both that fine and imprisonment. Upon a second or subsequent conviction, each violation shall be punishable by imprisonment in a county jail not to exceed one year, or by a fine not to exceed ten thousand dollars ($10,000), or by both that fine and imprisonment. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 11. Section 11353 of the Health and Safety Code is amended to read: 11353. (a) Every person 18 years of age or over, (a) who in any voluntary manner solicits, induces, encourages, or intimidates any minor with the intent that the minor shall violate any provision of this chapter or Section 11550 with respect to either (1) a controlled substance which is specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, (b) who hires, employs, or uses a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle any such controlled substance, or (c) who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any such controlled substance to a minor, shall be punished by imprisonment in the state prison for a period of three, six, or nine years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 12. Section 11353.1 of the Health and Safety Code is amended to read: 11353.1. (a) Notwithstanding any other provision of law, any person 18 years of age or over who is convicted of a violation of Section 11353, in addition to the punishment imposed for that conviction, shall receive an additional punishment as follows: (1) If the offense involved heroin, cocaine, cocaine base, or any analog of these substances and occurred upon the grounds of, or within, a church or synagogue, a playground, a public or private youth center, a child day care facility, or a public swimming pool, during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility, the defendant shall, as a full and separately served enhancement to any other enhancement provided in paragraph (3), be punished by imprisonment in the state prison for one year. (2) If the offense involved heroin, cocaine, cocaine base, or any analog of these substances and occurred upon, or within 1,000 feet of, the grounds of any public or private elementary, vocational, junior high, or high school, during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs, the defendant shall, as a full and separately served enhancement to any other enhancement provided in paragraph (3), be punished by imprisonment in the state prison for two years. (3) If the offense involved a minor who is at least four years younger than the defendant, the defendant shall, as a full and separately served enhancement to any other enhancement provided in this subdivision, be punished by imprisonment in the state prison for one, two, or three years, at the discretion of the court. (4) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (b) The additional punishment provided in this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (c) The additional punishment provided in this section shall be in addition to any other punishment provided by law and shall not be limited by any other provision of law. (d) Notwithstanding any other provision of law, the court may strike the additional punishment provided for in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (e) As used in this section the following definitions shall apply: (1) "Playground" means any park or recreational area specifically designed to be used by children which has play equipment installed, including public grounds designed for athletic activities such as baseball, football, soccer, or basketball, or any similar facility located on public or private school grounds, or on city, county, or state parks. (2) "Youth center" means any public or private facility that is primarily used to host recreational or social activities for minors, including, but not limited to, private youth membership organizations or clubs, social service teenage club facilities, video arcades, or similar amusement park facilities. (3) "Video arcade" means any premises where 10 or more video game machines or devices are operated, and where minors are legally permitted to conduct business. (4) "Video game machine" means any mechanical amusement device, which is characterized by the use of a cathode ray tube display and which, upon the insertion of a coin, slug, or token in any slot or receptacle attached to, or connected to, the machine, may be operated for use as a game, contest, or amusement. (5) "Within 1,000 feet of the grounds of any public or private elementary, vocational, junior high, or high school" means any public area or business establishment where minors are legally permitted to conduct business which is located within 1,000 feet of any public or private elementary, vocational, junior high, or high school. (6) "Child day care facility" has the meaning specified in Section 1596.750. (f) This section does not require either that notice be posted regarding the proscribed conduct or that the applicable 1,000-foot boundary limit be marked. SEC. 13. Section 11353.4 of the Health and Safety Code is amended to read: 11353.4. (a) Any person 18 years of age or older who is convicted for a second or subsequent time of violating Section 11353, as that section applies to paragraph (1) of subdivision (f) of Section 11054, where the previous conviction resulted in a prison sentence, shall, as a full and separately served enhancement to the punishment imposed for that second or subsequent conviction of Section 11353, be punished by imprisonment in the state prison for one, two, or three years. (b) If the second or subsequent violation of Section 11353, as described in subdivision (a), involved a minor who is 14 years of age or younger, the defendant shall, as a full and separately served enhancement to any other enhancement provided in this section, be punished by imprisonment in the state prison for one, two, or three years, at the discretion of the court. (c) The additional punishment provided in this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (d) The additional punishment provided in this section shall be in addition to any other punishment provided by law and shall not be limited by any other provision of law. (e) Notwithstanding any other provision of law, the court may strike the additional punishment provided for in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 14. Section 11353.5 of the Health and Safety Code is amended to read: 11353.5. (a) Except as authorized by law, any person 18 years of age or older who unlawfully prepares for sale upon school grounds or a public playground, a child day care facility, a church, or a synagogue, or sells or gives away a controlled substance, other than a controlled substance described in Section 11353 or 11380, to a minor upon the grounds of, or within, any school, child day care facility, public playground, church, or synagogue providing instruction in preschool, kindergarten, or any of grades 1 to 12, inclusive, or providing child care services, during hours in which those facilities are open for classes, school-related programs, or child care, or at any time when minors are using the facility where the offense occurs, or upon the grounds of a public playground during the hours in which school-related programs for minors are being conducted, or at any time when minors are using the facility where the offense occurs, shall be punished by imprisonment in the state prison for five, seven, or nine years. Application of this section shall be limited to persons at least five years older than the minor to whom he or she prepares for sale, sells, or gives away a controlled substance. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 15. Section 11353.6 of the Health and Safety Code is amended to read: 11353.6. (a) This section shall be known, and may be cited, as the Juvenile Drug Trafficking and Schoolyard Act of 1988. (b) Any person 18 years of age or over who is convicted of a violation of Section 11351.5, 11352, or 11379.6, as those sections apply to paragraph (1) of subdivision (f) of Section 11054, or of Section 11351, 11352, or 11379.6, as those sections apply to paragraph (11) of subdivision (c) of Section 11054, or of Section 11378, 11379, or 11379.6, as those sections apply to paragraph (2) of subdivision (d) of Section 11055, or of a conspiracy to commit one of those offenses, where the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs, shall receive an additional punishment of 3, 4, or 5 years at the court's discretion. (c) Any person 18 years of age or older who is convicted of a violation pursuant to subdivision (b) which involves a minor who is at least four years younger than that person, as a full and separately served enhancement to that provided in subdivision (b), shall be punished by imprisonment in the state prison for 3, 4, or 5 years at the court's discretion. (d) The additional terms provided in this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (e) The additional terms provided in this section shall be in addition to any other punishment provided by law and shall not be limited by any other provision of law. (f) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (g) "Within 1,000 feet of a public or private elementary, vocational, junior high, or high school" means any public area or business establishment where minors are legally permitted to conduct business which is located within 1,000 feet of any public or private elementary, vocational, junior high, or high school. (h) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 16. Section 11353.7 of the Health and Safety Code is amended to read: 11353.7. (a) Except as authorized by law, and except as provided otherwise in Sections 11353.1, 11353.6, and 11380.1 with respect to playgrounds situated in a public park, any person 18 years of age or older who unlawfully prepares for sale in a public park, including units of the state park system and state vehicular recreation areas, or sells or gives away a controlled substance to a minor under the age of 14 years in a public park, including units of the state park system and state vehicular recreation areas, during hours in which the public park, including units of the state park system and state vehicular recreation areas, is open for use, with knowledge that the person is a minor under the age of 14 years, shall be punished by imprisonment in the state prison for three, six, or nine years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 17. Section 11354 of the Health and Safety Code is amended to read: 11354. (a) Every person under the age of 18 years who in any voluntary manner solicits, induces, encourages, or intimidates any minor with the intent that the minor shall violate any provision of this chapter or Section 11550, who hires, employs, or uses a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, or who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any such controlled substance to a minor shall be punished by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) This section is not intended to affect the jurisdiction of the juvenile court. SEC. 18. Section 11355 of the Health and Safety Code is amended to read: 11355. (a) Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (13), (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug to any person, or who offers, arranges, or negotiates to have any such controlled substance unlawfully sold, delivered, transported, furnished, administered, or given to any person and who then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of any such controlled substance shall be punished by imprisonment in the county jail for not more than one year, or in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 19. Section 11356.5 of the Health and Safety Code is amended to read: 11356.5. (a) Any person convicted of a violation of Section 11351, 11352, 11379.5, or 11379.6 insofar as the latter section relates to phencyclidine or any of its analogs which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055, who, as part of the transaction for which he or she was convicted, has induced another to violate Section 11351, 11352, 11379.5, or 11379.6 insofar as the latter section relates to phencyclidine or its analogs, shall be punished as follows: (1) By an additional one year in prison if the value of the controlled substance involved in the transaction for which the person was convicted exceeds five hundred thousand dollars ($500,000). (2) By an additional two years in prison if the value of the controlled substance involved in the transaction for which the person was convicted exceeds two million dollars ($2,000,000). (3) By an additional three years in prison if the value of the controlled substance involved in the transaction for which the person was convicted exceeds five million dollars ($5,000,000). (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) For purposes of this section, "value of the controlled substance" means the retail price to the user. SEC. 20. Section 11357 of the Health and Safety Code is amended to read: 11357. (a) Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment in the state prison. (b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). Notwithstanding other provisions of law, if such person has been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged, the previous convictions shall also be charged in the accusatory pleading and, if found to be true by the jury upon a jury trial or by the court upon a court trial or if admitted by the person, the provisions of Sections 1000.1 and 1000.2 of the Penal Code shall be applicable to him, and the court shall divert and refer him for education, treatment, or rehabilitation, without a court hearing or determination or the concurrence of the district attorney, to an appropriate community program which will accept him. If the person is so diverted and referred he shall not be subject to the fine specified in this subdivision. If no community program will accept him, the person shall be subject to the fine specified in this subdivision. In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking. (c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in the county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment. (d) Except as authorized by law, every person 18 years of age or over who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500), or by imprisonment in the county jail for a period of not more than 10 days, or both. (e) Except as authorized by law, every person under the age of 18 who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be subject to the following dispositions: (1) A fine of not more than two hundred fifty dollars ($250), upon a finding that a first offense has been committed. (2) A fine of not more than five hundred dollars ($500), or commitment to a juvenile hall, ranch, camp, forestry camp, or secure juvenile home for a period of not more than 10 days, or both, upon a finding that a second or subsequent offense has been committed. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 21. Section 11358 of the Health and Safety Code is amended to read: 11358. Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, shall be punished as provided in the applicable sentencing rules. SEC. 22. Section 11359 of the Health and Safety Code is amended to read: 11359. Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, shall be punished as provided in the applicable sentencing rules. SEC. 23. Section 11360 of the Health and Safety Code is amended to read: 11360. (a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years. (b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). If a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 24. Section 11361 of the Health and Safety Code is amended to read: 11361. (a) Every person 18 years of age or over who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, giving away, preparing for sale, or peddling any marijuana, who unlawfully sells, or offers to sell, any marijuana to a minor, or who furnishes, administers, or gives, or offers to furnish, administer, or give any marijuana to a minor under 14 years of age, or who induces a minor to use marijuana in violation of law shall be punished by imprisonment in the state prison for a period of three, five, or seven years. (b) Every person 18 years of age or over who furnishes, administers, or gives, or offers to furnish, administer, or give, any marijuana to a minor 14 years of age or older shall be punished by imprisonment in the state prison for a period of three, four, or five years. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 25. Section 11363 of the Health and Safety Code is amended to read: 11363. Every person who plants, cultivates, harvests, dries, or processes any plant of the genus Lophophora, also known as peyote, or any part thereof shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, shall be punished as provided in the applicable sentencing rules. SEC. 26. Section 11364.7 of the Health and Safety Code is amended to read: 11364.7. (a) Except as authorized by law, any person who delivers, furnishes, or transfers, possesses with intent to deliver, furnish, or transfer, or manufactures with the intent to deliver, furnish, or transfer, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance, except as provided in subdivision (b), in violation of this division, is guilty of a misdemeanor. No public entity, its agents, or employees shall be subject to criminal prosecution for distribution of hypodermic needles or syringes to participants in clean needle and syringe exchange projects authorized by the public entity pursuant to Chapter 18 (commencing with Section 121349) of Part 4 of Division 105. (b) Except as authorized by law, any person who manufactures with intent to deliver, furnish, or transfer drug paraphernalia knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body cocaine, cocaine base, heroin, phencyclidine, or methamphetamine in violation of this division shall be punished by imprisonment in a county jail for not more than one year, or in the state prison. (c) Except as authorized by law, any person, 18 years of age or over, who violates subdivision (a) by delivering, furnishing, or transferring drug paraphernalia to a person under 18 years of age who is at least three years his or her junior, or who, upon the grounds of a public or private elementary, vocational, junior high, or high school, possesses a hypodermic needle, as defined in paragraph (7) of subdivision (a) of Section 11014.5, with the intent to deliver, furnish, or transfer the hypodermic needle, knowing, or under circumstances where one reasonably should know, that it will be used by a person under 18 years of age to inject into the human body a controlled substance, is guilty of a misdemeanor and shall be punished by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine. (d) The violation, or the causing or the permitting of a violation, of subdivision (a), (b), or (c) by a holder of a business or liquor license issued by a city, county, or city and county, or by the State of California, and in the course of the licensee's business shall be grounds for the revocation of that license. (e) All drug paraphernalia defined in Section 11014.5 is subject to forfeiture and may be seized by any peace officer pursuant to Section 11471. (f) If any provision of this section or the application thereof to any person or circumstance is held invalid, it is the intent of the Legislature that the invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application and to this end the provisions of this section are severable. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 27. Section 11366 of the Health and Safety Code is amended to read: 11366. (a) Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (13), (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b),or (c), paragraph (1) or (2) of subdivision (d), or paragraph (3) of subdivision (e) of Section 11055, or (2) which is a narcotic drug classified in Schedule III, IV, or V, shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 28. Section 11366.5 of the Health and Safety Code is amended to read: 11366.5. (a) Any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution shall be punished by imprisonment in the county jail for not more than one year, or in the state prison. (b) Any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly allows the building, room, space, or enclosure to be fortified to suppress law enforcement entry in order to further the sale of any amount of cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, heroin, phencyclidine, amphetamine, methamphetamine, or lysergic acid diethylamide and who obtains excessive profits from the use of the building, room, space, or enclosure shall be punished by imprisonment in the state prison for two, three, or four years. (c) Any person who violates subdivision (a) after previously being convicted of a violation of subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) For the purposes of this section, "excessive profits" means the receipt of consideration of a value substantially higher than fair market value. SEC. 29. Section 11366.6 of the Health and Safety Code is amended to read: 11366.6. (a) Any person who utilizes a building, room, space, or enclosure specifically designed to suppress law enforcement entry in order to sell, manufacture, or possess for sale any amount of cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, heroin, phencyclidine, amphetamine, methamphetamine, or lysergic acid diethylamide shall be punished by imprisonment in the state prison for three, four, or five years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 30. Section 11366.7 of the Health and Safety Code is amended to read: 11366.7. (a) This section shall apply to the following: (1) Any chemical or drug. (2) Any laboratory apparatus or device. (b) Any retailer or wholesaler who sells any item in paragraph (1) or (2) of subdivision (a) with knowledge or the intent that it will be used to unlawfully manufacture, compound, convert, process, or prepare a controlled substance for unlawful sale or distribution, shall be punished by imprisonment in a county jail for not more than one year, or in the state prison, or by a fine not exceeding twenty-five thousand dollars ($25,000), or by both that imprisonment and fine. Any fine collected pursuant to this section shall be distributed as specified in Section 1463.10 of the Penal Code. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 31. Section 11366.8 of the Health and Safety Code is amended to read: 11366.8. (a) Every person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment shall be punished by imprisonment in a county jail for a term of imprisonment not to exceed one year or in the state prison. (b) Every person who designs, constructs, builds, alters, or fabricates a false compartment for, or installs or attaches a false compartment to, a vehicle with the intent to store, conceal, smuggle, or transport a controlled substance shall be punished by imprisonment in the state prison for 16 months or two or three years. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) The term "vehicle" means any of the following vehicles without regard to whether the vehicles are private or commercial, including, but not limited to, cars, trucks, buses, aircraft, boats, ships, yachts, and vessels. (e) The term "false compartment" means any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following: (1) False, altered, or modified fuel tanks. (2) Original factory equipment of a vehicle that is modified, altered, or changed. (3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle. SEC. 32. Section 11368 of the Health and Safety Code is amended to read: 11368. (a) Every person who forges or alters a prescription or who issues or utters an altered prescription, or who issues or utters a prescription bearing a forged or fictitious signature for any narcotic drug, or who obtains any narcotic drug by any forged, fictitious, or altered prescription, or who has in possession any narcotic drug secured by a forged, fictitious, or altered prescription, shall be punished by imprisonment in the county jail for not less than six months nor more than one year, or in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 33. Section 11370 of the Health and Safety Code is amended to read: 11370. (a) Any person convicted of violating Section 11350, 11351, 11351.5, 11352, 11353, 11355, 11357, 11359, 11360, 11361, 11363, 11366, or 11368, or of committing any offense referred to in those sections, shall not, in any case, be granted probation by the trial court or have the execution of the sentence imposed upon him or her suspended by the court, if he or she has been previously convicted of any offense described in subdivision (c). (b) Any person who was 18 years of age or over at the time of the commission of the offense and is convicted for the first time of selling, furnishing, administering, or giving a controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or (2) which is a narcotic drug classified in Schedule III, IV, or V, to a minor or inducing a minor to use such a controlled substance in violation of law shall not, in any case, be granted probation by the trial court or have the execution of the sentence imposed upon him or her suspended by the court. (c) Any previous conviction of any of the following offenses, or of an offense under the laws of another state or of the United States which, if committed in this state, would have been punishable as such an offense, shall render a person ineligible for probation or suspension of sentence pursuant to subdivision (a) of this section: (1) Any felony offense described in this division involving a controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (13), (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055. (2) Any felony offense described in this division involving a narcotic drug classified in Schedule III, IV, or V. (d) The existence of any previous conviction or fact which would make a person ineligible for suspension of sentence or probation under this section shall be alleged in the information or indictment, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by trial by the court sitting without a jury. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 34. Section 11370.1 of the Health and Safety Code is amended to read: 11370.1. (a) (1) Notwithstanding Section 11350 or 11377 or any other provision of law, every person who unlawfully possesses any amount of a substance containing cocaine base, a substance containing cocaine, a substance containing heroin, a substance containing methamphetamine, a crystalline substance containing phencyclidine, a liquid substance containing phencyclidine, plant material containing phencyclidine, or a hand-rolled cigarette treated with phencyclidine while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years. (2) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (3) As used in this subdivision, "armed with" means having available for immediate offensive or defensive use. (b) Any person who is convicted under this section shall be ineligible for diversion or deferred entry of judgment under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code. SEC. 35. Section 11370.2 of the Health and Safety Code is amended to read: 11370.2. (a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment. (b) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment. (c) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment. (d) The enhancements provided for in this section shall be pleaded and proven as provided by law. (e) The conspiracy enhancements provided for in this section shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (f) Prior convictions from another jurisdiction qualify for use under this section pursuant to Section 668 of the Penal Code . (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 36. Section 11370.4 of the Health and Safety Code is amended to read: 11370.4. (a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 with respect to a substance containing heroin, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or cocaine as specified in paragraph (6) of subdivision (b) of Section 11055 shall receive an additional term as follows: (1) Where the substance exceeds one kilogram by weight, the person shall receive an additional term of three years. (2) Where the substance exceeds four kilograms by weight, the person shall receive an additional term of five years. (3) Where the substance exceeds 10 kilograms by weight, the person shall receive an additional term of 10 years. (4) Where the substance exceeds 20 kilograms by weight, the person shall receive an additional term of 15 years. (5) Where the substance exceeds 40 kilograms by weight, the person shall receive an additional term of 20 years. (6) Where the substance exceeds 80 kilograms by weight, the person shall receive an additional term of 25 years. The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (b) Any person convicted of a violation of, or of conspiracy to violate, Section 11378, 11378.5, 11379, or 11379.5 with respect to a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs shall receive an additional term as follows: (1) Where the substance exceeds one kilogram by weight, or 30 liters by liquid volume, the person shall receive an additional term of three years. (2) Where the substance exceeds four kilograms by weight, or 100 liters by liquid volume, the person shall receive an additional term of five years. (3) Where the substance exceeds 10 kilograms by weight, or 200 liters by liquid volume, the person shall receive an additional term of 10 years. (4) Where the substance exceeds 20 kilograms by weight, or 400 liters by liquid volume, the person shall receive an additional term of 15 years. In computing the quantities involved in this subdivision, plant or vegetable material seized shall not be included. The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense. (c) The additional terms provided in this section shall not be imposed unless the allegation that the weight of the substance containing heroin, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, methamphetamine, amphetamine, or phencyclidine (PCP) and its analogs exceeds the amounts provided in this section is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (d) The additional terms provided in this section shall be in addition to any other punishment provided by law. (e) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 37. Section 11370.6 of the Health and Safety Code is amended to read: 11370.6. (a) Every person who possesses any moneys or negotiable instruments in excess of one hundred thousand dollars ($100,000) which have been obtained as the result of the unlawful sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture any controlled substance listed in Section 11054, 11055, 11056, 11057, or 11058, with knowledge that the moneys or negotiable instruments have been so obtained, and any person who possesses any moneys or negotiable instruments in excess of one hundred thousand dollars ($100,000) which are intended by that person for the unlawful purchase of any controlled substance listed in Section 11054, 11055, 11056, 11057, or 11058 and who commits an act in substantial furtherance of the unlawful purchase, shall be punished by imprisonment in the county jail for a term not to exceed one year, or by imprisonment in the state prison for two, three, or four years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) In consideration of the constitutional right to counsel afforded by the Sixth Amendment to the United States Constitution and Section 15 of Article1I of the California Constitution, when a case charged under subdivision (a) involves an attorney who accepts a fee for representing a client in a criminal investigation or proceeding, the prosecution shall additionally be required to prove that the moneys or negotiable instruments were accepted by the attorney with the intent to participate in the unlawful conduct described in subdivision (a) or to disguise or aid in disguising the source of the funds or the nature of the criminal activity. (d) In determining the guilt or innocence of a person charged under subdivision (a), the trier of fact may consider the following in addition to any other relevant evidence: (1) The lack of gainful employment by the person charged. (2) The expert opinion of a qualified controlled substances expert as to the source of the assets. (3) The existence of documents or ledgers that indicate sales of controlled substances. SEC. 38. Section 11370.9 of the Health and Safety Code is amended to read: 11370.9. (a) It is unlawful for any person knowingly to receive or acquire proceeds, or engage in a transaction involving proceeds, known to be derived from any violation of this division or Chapter 5 (commencing with Section 109525) of Part 4 of Division 104 with the intent to conceal or disguise or aid in concealing or disguising the nature, location, ownership, control, or source of the proceeds or to avoid a transaction reporting requirement under state or federal law. (b) It is unlawful for any person knowingly to give, sell, transfer, trade, invest, conceal, transport, or maintain an interest in, or otherwise make available, anything of value which that person knows is intended to be used for the purpose of committing, or furthering the commission of, any violation of this division or Chapter 5 (commencing with Section 109525) of Part 4 of Division 104 with the intent to conceal or disguise or aid in concealing or disguising the nature, location, ownership, control, or source of the proceeds or to avoid a transaction reporting requirement under state or federal law. (c) It is unlawful for any person knowingly to direct, plan, organize, initiate, finance, manage, supervise, or facilitate the transportation or transfer of proceeds known to be derived from any violation of this division or Chapter 5 (commencing with Section 109525) of Part 4 of Division 104 with the intent to conceal or disguise or aid in concealing or disguising the nature, location, ownership, control, or source of the proceeds or to avoid a transaction reporting requirement under state or federal law. (d) It is unlawful for any person knowingly to conduct a transaction involving proceeds derived from a violation of this division or Chapter 5 (commencing with Section 109525) of Part 4 of Division 104 when the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or control of the proceeds known to be derived from a violation of this division or Chapter 5 (commencing with Section 109525) of Part 4 of Division 104 with the intent to conceal or disguise or aid in concealing or disguising the nature, location, ownership, control, or source of the proceeds or to avoid a transaction reporting requirement under state or federal law. (e) A violation of this section shall be punished by imprisonment in a county jail for not more than one year or in the state prison for a period of two, three, or four years, by a fine of not more than two hundred fifty thousand dollars ($250,000) or twice the value of the proceeds or property involved in the violation, whichever is greater, or by both that imprisonment and fine. Notwithstanding any other provision of law, each violation of this section shall constitute a separate, punishable offense without limitation. (f) This section shall apply only to a transaction, or series of related transactions within a 30-day period, involving over twenty-five thousand dollars ($25,000) or to proceeds of a value exceeding twenty-five thousand dollars ($25,000). (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (h) In consideration of the constitutional right to counsel afforded by the Sixth Amendment to the United States Constitution and Section 15 of Article1I of the California Constitution, this section is not intended to apply to the receipt of, or a related transaction involving, a fee by an attorney for the purpose of providing advice or representing a person in a criminal investigation or prosecution. (i) For the purposes of this section, the following terms have the following meanings: (1) "Proceeds" means property acquired or derived directly or indirectly from, produced through, or realized through any violation of this division orDivision 10.1Chapter 5 (commencing with Section 109525) of Part 4 of Division 104 . (2) "Transaction" includes a purchase, sale, trade, loan, pledge, investment, gift, transfer, transmission, delivery, deposit, withdrawal, payment, electronic, magnetic, or manual transfer between accounts, exchange of currency, extension of credit, purchase or sale of any monetary instrument, or any other acquisition or disposition of property by whatever means effected. (3) "Represented by a law enforcement officer" means any representation of fact made by a peace officer as defined in Section 7 of the Penal Code, or a federal officer described in subsection (e) of Sections 1956 and 1957 of Title 18 of the United States Code, or by another person at the direction of, or with the approval of, that peace officer or federal officer. SEC. 39. Section 11371 of the Health and Safety Code is amended to read: 11371. (a) Any person who knowingly violates any of the provisions of Section 11153, 11154, 11155, or 11156 with respect to (1) a controlled substance specified in subdivision (b), (c), or (d) of Section 11055, or (2) a controlled substance specified in paragraph (1) of subdivision (b) of Section 11056, or (3) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V, or who in any voluntary manner solicits, induces, encourages or intimidates any minor with the intent that such minor shall commit any such offense, shall be punished by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine not exceeding twenty thousand dollars ($20,000), or by both such fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 40. Section 11371.1 of the Health and Safety Code is amended to read: 11371.1. (a) Any person who knowingly violates any of the provisions of Section 11173 or 11174 with respect to (1) a controlled substance specified in subdivision (b), (c), or (d) of Section 11055, or (2) a controlled substance specified in paragraph (1) of subdivision (b) of Section 11056, or (3) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V, or who in any voluntary manner solicits, induces, encourages or intimidates any minor with the intent that such minor shall commit any such offense, shall be punished by imprisonment in the state prison, or in a county jail not exceeding one year. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 41. Section 11372 of the Health and Safety Code is amended to read: 11372. (a) In addition to the term of imprisonment provided by law for persons convicted of violating Section 11350, 11351, 11351.5, 11352, 11353, 11355, 11359, 11360, or 11361, the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each offense. In no event shall a fine be levied in lieu of or in substitution for the term of imprisonment provided by law for any of these offenses. (b) Any person receiving an additional term pursuant to paragraph (1) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not exceeding one million dollars ($1,000,000) for each offense. (c) Any person receiving an additional term pursuant to paragraph (2) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed four million dollars ($4,000,000) for each offense. (d) Any person receiving an additional term pursuant to paragraph (3) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed eight million dollars ($8,000,000) for each offense. (e) The court shall make a finding, prior to the imposition of the fines authorized by subdivisions (b) to (e), inclusive, that there is a reasonable expectation that the fine, or a substantial portion thereof, could be collected within a reasonable period of time, taking into consideration the defendant's income, earning capacity, and financial resources. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 42. Section 11374 of the Health and Safety Code is amended to read: 11374. (a) Every person who violates or fails to comply with any provision of this division, except one for which a penalty is otherwise in this division specifically provided, is guilty of a misdemeanor punishable by a fine in a sum not less than thirty dollars ($30) nor more than five hundred dollars ($500), or by imprisonment in a county jail for not less than 15 nor more than 180 days, or by both. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 43. Section 11374.5 of the Health and Safety Code is amended to read: 11374.5. (a) Any manufacturer of a controlled substance who disposes of any hazardous substance that is a controlled substance or a chemical used in, or is a byproduct of, the manufacture of a controlled substance in violation of any law regulating the disposal of hazardous substances or hazardous waste is guilty of a public offense punishable by imprisonment in the state prison for two, three, or four years or in the county jail not exceeding one year. (b) (1) In addition to any other penalty or liability imposed by law, a person who is convicted of violating subdivision (a), or any person who is convicted of the manufacture, sale, possession for sale, possession, transportation, or disposal of any hazardous substance that is a controlled substance or a chemical used in, or is a byproduct of, the manufacture of a controlled substance in violation of any law, shall pay a penalty equal to the amount of the actual cost incurred by the state or local agency to remove and dispose of the hazardous substance that is a controlled substance or a chemical used in, or is a byproduct of, the manufacture of a controlled substance and to take removal action with respect to any release of the hazardous substance or any items or materials contaminated by that release, if the state or local agency requests the prosecuting authority to seek recovery of that cost. The court shall transmit all penalties collected pursuant to this subdivision to the county treasurer of the county in which the court is located for deposit in a special account in the county treasury. The county treasurer shall pay that money at least once a month to the agency that requested recovery of the cost for the removal action. The county may retain up to 5 percent of any assessed penalty for appropriate and reasonable administrative costs attributable to the collection and disbursement of the penalty. (2) If the Department of Toxic Substances Control has requested recovery of the cost of removing the hazardous substance that is a controlled substance or a chemical used in, or is a byproduct of, the manufacture of a controlled substance or taking removal action with respect to any release of the hazardous substance, the county treasurer shall transfer funds in the amount of the penalty collected to the Treasurer, who shall deposit the money in the Illegal Drug Lab Cleanup Account, which is hereby created in the General Fund in the State Treasury. The Department of Toxic Substances Control may expend the money in the Illegal Drug Lab Cleanup Account, upon appropriation by the Legislature, to cover the cost of taking removal actions pursuant to Section 25354.5. (3) If a local agency and the Department of Toxic Substances Control have both requested recovery of removal costs with respect to a hazardous substance that is a controlled substance or a chemical used in, or is a byproduct of, the manufacture of a controlled substance, the county treasurer shall apportion any penalty collected among the agencies involved in proportion to the costs incurred. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) As used in this section the following terms have the following meaning: (1) "Dispose" means to abandon, deposit, intern, or otherwise discard as a final action after use has been achieved or a use is no longer intended. (2) "Hazardous substance" has the same meaning as defined in Section 25316. (3) "Hazardous waste" has the same meaning as defined in Section 25117. (4) For purposes of this section, "remove" or "removal" has the same meaning as set forth in Section 25323. SEC. 44. Section 11375 of the Health and Safety Code, as amended by Section 2 of Chapter 838 of the Statutes of 2001, is amended to read: 11375. (a) As to the substances specified in subdivision (d), this section, and not Sections 11377, 11378, 11379, and 11380, shall apply. (b) (1) Every person who possesses for sale, or who sells, any substance specified in subdivision (d) shall be punished by imprisonment in the county jail for a period of not more than one year or state prison. (2) Every person who possesses any controlled substance specified in subdivision (d), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be guilty of an infraction or a misdemeanor. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) This section shall apply to any material, compound, mixture, or preparation containing any of the following substances: (1) Chlordiazepoxide. (2) Clonazepam. (3) Clorazepate. (4) Diazepam. (5) Flurazepam. (6) Lorazepam. (7) Mebutamate. (8) Oxazepam. (9) Prazepam. (10) Temazepam. (11) Halazepam. (12) Alprazolam. (13) Propoxyphene. (14) Diethylpropion. (15) Phentermine. (16) Pemoline. (17) Fenfluramine. (18) Triazolam. SEC. 45. Section 11375 of the Health and Safety Code, as amended by Section 1 of Chapter 838 of the Statutes of 2001, is amended to read: 11375. (a) As to the substances specified in subdivision (d), this section, and not Sections 11377, 11378, 11379, and 11380, shall apply. (b) (1) Every person who possesses for sale, or who sells, any substance specified in subdivision (d) shall be punished by imprisonment in the county jail for a period of not more than one year or state prison. (2) Every person who possesses any controlled substance specified in subdivision (d), unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be guilty of an infraction or a misdemeanor. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) This section shall apply to any material, compound, mixture, or preparation containing any of the following substances: (1) Chlordiazepoxide. (2) Clonazepam. (3) Clorazepate. (4) Diazepam. (5) Flurazepam. (6) Lorazepam. (7) Mebutamate. (8) Oxazepam. (9) Prazepam. (10) Temazepam. (11) Halazepam. (12) Alprazolam. (13) Propoxyphene. (14) Diethylpropion. (15) Phentermine. (16) Pemoline. (17) Triazolam. SEC. 46. Section 11377 of the Health and Safety Code is amended to read: 11377. (a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year or in the state prison. (b) (1) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (f) of Section 11056, and who has not previously been convicted of a violation involving a controlled substance specified in subdivision (f) of Section 11056, is guilty of a misdemeanor. (2) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (g) of Section 11056 is guilty of a misdemeanor. (c) In addition to any fine assessed under subdivision (b), the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 47. Section 11378 of the Health and Safety Code is amended to read: 11378. (a) Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055, shall be punished by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 48. Section 11378.5 of the Health and Safety Code is amended to read: 11378.5. (a) Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale phencyclidine or any analog or any precursor of phencyclidine which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) or in subdivision (f), except subparagraph (A) of paragraph (1) of subdivision (f), of Section 11055, shall be punished by imprisonment in the state prison for a period of three, four, or five years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 49. Section 11379 of the Health and Safety Code is amended to read: 11379. (a) Except as otherwise provided in subdivision (b) and in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d) or (e), except paragraph (3) of subdivision (e), or specified in subparagraph (A) of paragraph (1) of subdivision (f), of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in the state prison for a period of two, three, or four years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 50. Section 11379.2 of the Health and Safety Code is amended to read: 11379.2. (a) Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale or sells any controlled substance specified in subdivision (g) of Section 11056 shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 51. Section 11379.5 of the Health and Safety Code is amended to read: 11379.5. (a) Except as otherwise provided in subdivision (b) and in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport phencyclidine or any of its analogs which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055, or its precursors as specified in subparagraph (A) or (B) of paragraph (2) of subdivision (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for a period of three, four, or five years. (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 52. Section 11379.6 of the Health and Safety Code is amended to read: 11379.6. (a) Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 shall be punished by imprisonment in the state prison for three, five, or seven years and by a fine not exceeding fifty thousand dollars ($50,000). (b) Except when an enhancement pursuant to Section 11379.7 is pled and proved, the fact that a person under 16 years of age resided in a structure in which a violation of this section involving methamphetamine occurred shall be considered a factor in aggravation by the sentencing court. (c) Except as otherwise provided by law, every person who offers to perform an act which is punishable under subdivision (a) shall be punished by imprisonment in the state prison for three, four, or five years. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) All fines collected pursuant to subdivision (a) shall be transferred to the State Treasury for deposit in the Clandestine Drug Lab Clean-up Account, as established by Section 5 of Chapter 1295 of the Statutes of 1987. The transmission to the State Treasury shall be carried out in the same manner as fines collected for the state by the county. SEC. 53. Section 11379.7 of the Health and Safety Code is amended to read: 11379.7. (a) Except as provided in subdivision (b), any person convicted of a violation of subdivision (a) of Section 11379.6 or Section 11383, or of an attempt to violate subdivision (a) of Section 11379.6 or Section 11383, as those sections relate to methamphetamine or phencyclidine, when the commission or attempted commission of the crime occurs in a structure where any child under 16 years of age is present, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of two years in the state prison. (b) Any person convicted of a violation of subdivision (a) of Section 11379.6 or Section 11383, or of an attempt to violate subdivision (a) of Section 11379.6 or Section 11383, as those sections relate to methamphetamine or phencyclidine, where the commission of the crime causes any child under 16 years of age to suffer great bodily injury, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of five years in the state prison. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) As used in this section, "structure" means any house, apartment building, shop, warehouse, barn, building, vessel, railroad car, cargo container, motor vehicle, housecar, trailer, trailer coach, camper, mine, floating home, or other enclosed structure capable of holding a child and manufacturing equipment. (e) As used in this section, "great bodily injury" has the same meaning as defined in Section 12022.7 of the Penal Code. SEC. 54. Section 11379.8 of the Health and Safety Code is amended to read: 11379.8. (a) Any person convicted of a violation of subdivision (a) of Section 11379.6, or of a conspiracy to violate subdivision (a) of Section 11379.6, with respect to any substance containing a controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054, or in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) or in paragraph (2) of subdivision (f) of Section 11055 shall receive an additional term as follows: (1) Where the substance exceeds three gallons of liquid by volume or one pound of solid substances by weight, the person shall receive an additional term of three years. (2) Where the substance exceeds 10 gallons of liquid by volume or three pounds of solid substance by weight, the person shall receive an additional term of five years. (3) Where the substance exceeds 25 gallons of liquid by volume or 10 pounds of solid substance by weight, the person shall receive an additional term of 10 years. (4) Where the substance exceeds 105 gallons of liquid by volume or 44 pounds of solid substance by weight, the person shall receive an additional term of 15 years. In computing the quantities involved in this subdivision, plant or vegetable material seized shall not be included. (b) The additional terms provided in this section shall not be imposed unless the allegation that the controlled substance exceeds the amounts provided in this section is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (c) The additional terms provided in this section shall be in addition to any other punishment provided by law. (d) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (e) The conspiracy enhancements provided for in this section shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the direction or supervision of, or in a significant portion of the financing of, the underlying offense. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 55. Section 11379.9 of the Health and Safety Code is amended to read: 11379.9. (a) Except as provided by Section 11379.7, any person convicted of a violation of, or of an attempt to violate, subdivision (a) of Section 11379.6 or Section 11383, as those sections relate to methamphetamine or phencyclidine, when the commission or attempted commission of the offense causes the death or great bodily injury of another person other than an accomplice, shall, in addition and consecutive to any other punishment authorized by law, be punished by an additional term of one year in the state prison for each death or injury. (b) Nothing in this section shall preclude prosecution under both this section and Section 187, 192, or 12022.7, or any other provision of law. However, a person who is punished under another provision of law for causing death or great bodily injury as described in subdivision (a) shall not receive an additional term of imprisonment under this section. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 56. Section 11380 of the Health and Safety Code is amended to read: 11380. (a) Every person 18 years of age or over who violates any provision of this chapter involving controlled substances which are (1) classified in Schedule III, IV, or V and which are not narcotic drugs or (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), specified in paragraph (11) of subdivision (c) of Section 11056, specified in paragraph (2) or (3)orof subdivision (f) of Section 11054, or specified in subdivision (d), (e), or (f) of Section 11055, by the use of a minor as agent, who solicits, induces, encourages, or intimidates any minor with the intent that the minor shall violate any provision of this article involving those controlled substances or who unlawfully furnishes, offers to furnish, or attempts to furnish those controlled substances to a minor shall be punished by imprisonment in the state prison for a period of three, six, or nine years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) Nothing in this section applies to a registered pharmacist furnishing controlled substances pursuant to a prescription. SEC. 57. Section 11380.1 of the Health and Safety Code is amended to read: 11380.1. (a) Notwithstanding any other provision of law, any person 18 years of age or over who is convicted of a violation of Section 11380, in addition to the punishment imposed for that conviction, shall receive an additional punishment as follows: (1) If the offense involved phencyclidine (PCP), methamphetamine, lysergic acid diethylamide (LSD), or any analog of these substances and occurred upon the grounds of, or within, a church or synagogue, a playground, a public or private youth center, a child day care facility, or a public swimming pool, during hours in which the facility is open for business, classes, or school-related programs, or at any time when minors are using the facility, the defendant shall, as a full and separately served enhancement to any other enhancement provided in paragraph (3), be punished by imprisonment in the state prison for one year. (2) If the offense involved phencyclidine (PCP), methamphetamine, lysergic acid diethylamide (LSD), or any analog of these substances and occurred upon, or within 1,000 feet of, the grounds of any public or private elementary, vocational, junior high school, or high school, during hours that the school is open for classes or school-related programs, or at any time when minors are using the facility where the offense occurs, the defendant shall, as a full and separately served enhancement to any other enhancement provided in paragraph (3), be punished by imprisonment in the state prison for two years. (3) If the offense involved a minor who is at least four years younger than the defendant, the defendant shall, as a full and separately served enhancement to any other enhancement provided in this subdivision, be punished by imprisonment in the state prison for one, two, or three years, at the discretion of the court. (b) The additional punishment provided in this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (c) The additional punishment provided in this section shall be in addition to any other punishment provided by law and shall not be limited by any other provision of law. (d) Notwithstanding any other provision of law, the court may strike the additional punishment provided for in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) The definitions contained in subdivision (e) of Section 11353.1 shall apply to this section. (g) This section does not require either that notice be posted regarding the proscribed conduct or that the applicable 1,000-foot boundary limit be marked. SEC. 58. Section 11380.7 of the Health and Safety Code is amended to read: 11380.7. (a) Notwithstanding any other provision of law, any person who is convicted of trafficking in heroin, cocaine, cocaine base, methamphetamine, or phencyclidine (PCP), or of a conspiracy to commit trafficking in heroin, cocaine, cocaine base, methamphetamine, or phencyclidine (PCP), in addition to the punishment imposed for the conviction, shall be imprisoned in the state prison for an additional one year if the violation occurred upon the grounds of, or within 1,000 feet of, a drug treatment center, detoxification facility, or homeless shelter. (b) (1) The additional punishment provided in this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (2) The additional punishment provided in this section shall not be imposed if any other additional punishment is imposed pursuant to Section 11353.1, 11353.5, 11353.6, 11353.7, or 11380.1. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) Notwithstanding any other provision of law, the court may strike the additional punishment provided for in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. In determining whether or not to strike the additional punishment, the court shall consider the following factors and any relevant factors in aggravation or mitigation in Rules 4.421 and 4.423 of the California Rules of Court. (1) The following factors indicate that the court should exercise its discretion to strike the additional punishment unless these factors are outweighed by factors in aggravation: (A) The defendant is homeless, or is in a homeless shelter or transitional housing. (B) The defendant lacks resources for the necessities of life. (C) The defendant is addicted to or dependent on controlled substances. (D) The defendant's motive was merely to maintain a steady supply of drugs for personal use. (E) The defendant was recruited or exploited by a more culpable person to commit the crime. (2) The following factors indicate that the court should not exercise discretion to strike the additional punishment unless these factors are outweighed by factors in mitigation: (A) The defendant, in committing the crime, preyed on homeless persons, drug addicts or substance abusers who were seeking treatment, shelter or transitional services. (B) The defendant's primary motive was monetary compensation. (C) The defendant induced others, particularly homeless persons, drug addicts and substance abusers, to become involved in trafficking. (e) For the purposes of this section, the following terms have the following meanings: (1) "Detoxification facility" means any premises, place, or building in which 24-hour residential nonmedical services are provided to adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse or abuse, and who need alcohol, drug, or alcohol and drug recovery treatment or detoxification services. (2) "Drug treatment program" or "drug treatment" has the same meaning set forth in subdivision (b) of Section 1210 of the Penal Code. (3) "Homeless shelter" includes, but is not limited to, emergency shelter housing, as well as transitional housing, but does not include domestic violence shelters. "Emergency shelter housing" is housing with minimal support services for homeless persons in which residency is limited to six months or less and is not related to the person's ability to pay. "Transitional housing" means housing with supportive services, including self-sufficiency development services, which is exclusively designed and targeted to help recently homeless persons find permanent housing as soon as reasonably possible, limits residency to 24 months, and in which rent and service fees are based on ability to pay. (4) "Trafficking" means any of the unlawful activities specified in Sections 11351, 11351.5, 11352, 11353, 11354, 11378, 11379, 11379.6, and 11380. It does not include simple possession or drug use. SEC. 59. Section 11382 of the Health and Safety Code is amended to read: 11382. (a) Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, or (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), specified in paragraph (11) of subdivision (c) of Section 11056, or specified in subdivision (d), (e), or (f) of Section 11055, to any person, or offers, arranges, or negotiates to have that controlled substance unlawfully sold, delivered, transported, furnished, administered, or given to any person and then sells, delivers, furnishes, transports, administers, or gives, or offers, or arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of that controlled substance shall be punished by imprisonment in the county jail for not more than one year, or in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 60. Section 11383 of the Health and Safety Code is amended to read: 11383. (a) Any person who possesses at the same time any of the following combinations, a combination product thereof, or possesses any compound or mixture containing the chemicals listed in the following combinations, with the intent to manufacture phencyclidine (PCP) or any of its analogs specified in subdivision (d) of Section 11054 or subdivision (e) of Section 11055, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years: (1) Piperidine and cyclohexanone. (2) Pyrrolidine and cyclohexanone. (3) Morpholine and cyclohexanone. (b) Any person who possesses the optical, positional, or geometric isomer of any of the compounds listed in this section, with the intent to manufacture these controlled substances is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years: (1) Phencyclidine (PCP). (2) Any analog of PCP specified in subdivision (d) of Section 11054, or in subdivision (e) of Section 11055. (c) Any person who possesses any compound or mixture containing piperidine, cyclohexanone, pyrrolidine, morpholine, 1-phenylcyclohexylamine (PCA), 1-piperidinocyclohexanecarbonitrile (PCC), or phenylmagnesium bromide (PMB) with the intent to manufacture phencyclidine, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. (d) Any person who possesses immediate precursors sufficient for the manufacture of piperidine, cyclohexanone, pyrrolidine, morpholine, or phenylmagnesium bromide (PMB) with the intent to manufacture phencyclidine, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) This section does not apply to drug manufacturers licensed by this state or persons authorized by regulation of the Board of Pharmacy to possess those substances or combinations of substances. SEC. 61. Section 11383.5 of the Health and Safety Code is amended to read: 11383.5. (a) Any person who possesses both methylamine and phenyl-2-propanone (phenylacetone) at the same time with the intent to manufacture methamphetamine, or who possesses both ethylamine and phenyl-2-propanone (phenylacetone) at the same time with the intent to manufacture N-ethylamphetamine, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. (b) (1) Any person who, with the intent to manufacture methamphetamine or any of its analogs specified in subdivision (d) of Section 11055, possesses ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses a substance containing ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses at the same time any of the following, or a combination product thereof, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years: (A) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, or phenylpropanolamine, plus hydriodic acid. (B) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, or phenylpropanolamine, thionyl chloride and hydrogen gas. (C) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, or phenylpropanolamine, plus phosphorus pentachloride and hydrogen gas. (D) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, chloroephedrine and chloropseudoephedrine, or phenylpropanolamine, plus any reducing agent. (2) Any person who, with the intent to manufacture methamphetamine or any of its analogs specified in subdivision (d) of Section 11055, possesses hydriodic acid or a reducing agent or any product containing hydriodic acid or a reducing agent is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. (c) Any person who possesses the optical, positional, or geometric isomer of any of the compounds listed in this section, with the intent to manufacture any of the following controlled substances, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years: (1) Methamphetamine. (2) Any analog of methamphetamine specified in subdivision (d) of Section 11055. (3) N-ethylamphetamine. (d) Any person who possesses immediate precursors sufficient for the manufacture of methylamine, ethylamine, phenyl-2-propanone, ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing agent, thionyl chloride, or phosphorus pentachloride, with the intent to manufacture methamphetamine, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. (e) Any person who possesses essential chemicals sufficient to manufacture hydriodic acid or a reducing agent, with the intent to manufacture methamphetamine, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. (f) Any person who possesses any compound or mixture containing ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing agent, thionyl chloride, or phosphorus pentachloride, with the intent to manufacture methamphetamine, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (h) For purposes of this section, a "reducing agent" for the purposes of manufacturing methamphetamine means an agent that causes reduction to occur by either donating a hydrogen atom to an organic compound or by removing an oxygen atom from an organic compound. (i) This section does not apply to drug manufacturers licensed by this state or persons authorized by regulation of the Board of Pharmacy to possess those substances or combinations of substances. SEC. 62. Section 11383.6 of the Health and Safety Code is amended to read: 11383.6. (a) Any person who possesses at the same time any of the following combinations, a combination product thereof, or possesses any compound or mixture containing the chemicals listed in the following combinations, with the intent to sell, transfer, or otherwise furnish those chemicals, combinations, or mixtures to another person with the knowledge that they will be used to manufacture phencyclidine (PCP) or any of its analogs specified in subdivision (d) of Section 11054 or subdivision (e) of Section 11055 is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years: (1) Piperidine and cyclohexanone. (2) Pyrrolidine and cyclohexanone. (3) Morpholine and cyclohexanone. (b) Any person who possesses the optical, positional, or geometric isomer of any of the compounds listed in this section with the intent to sell, transfer, or otherwise furnish the isomer to another person with the knowledge that they will be used to manufacture these controlled substances is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years: (1) Phencyclidine (PCP). (2) Any analog of PCP specified in subdivision (d) of Section 11054, or in subdivision (e) of Section 11055. (c) Any person who possesses any compound or mixture containing piperidine, cyclohexanone, pyrrolidine, morpholine, 1-phenylcyclohexylamine (PCA), 1-piperidinocyclohexanecarbonitrile (PCC), or phenylmagnesium bromide (PMB) with the intent to sell, transfer, or otherwise furnish the compound or mixture to another person with the knowledge that it will be used to manufacture phencyclidine is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years. (d) Any person who possesses immediate precursors sufficient for the manufacture of piperidine, cyclohexanone, pyrrolidine, morpholine, or phenylmagnesium bromide (PMB) with the intent to sell, transfer or otherwise furnish the immediate precursors to another person with the knowledge that they will be used to manufacture phencyclidine is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) This section does not apply to drug manufacturers licensed by this state or persons authorized by regulation of the Board of Pharmacy to possess those substances or combinations of substances. SEC. 63. Section 11383.7 of the Health and Safety Code is amended to read: 11383.7. (a) Any person who possesses both methylamine and phenyl-2-propanone (phenylacetone) at the same time with the intent to sell, transfer, or otherwise furnish those chemicals to another person with the knowledge that they will be used to manufacture methamphetamine, or who possesses both ethylamine and phenyl-2-propanone (phenylacetone) at the same time with the intent to sell, transfer, or otherwise furnish those chemicals to another person with the knowledge that they will be used to manufacture methamphetamine is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years. (b) (1) Any person who possesses ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses a substance containing ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses at the same time any of the following, or a combination product thereof, with the intent to sell, transfer, or otherwise furnish those chemicals, substances, or products to another person with the knowledge that they will be used to manufacture methamphetamine or any of its analogs specified in subdivision (d) of Section 11055 is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years: (A) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, or phenylpropanolamine, plus hydriodic acid. (B) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, or phenylpropanolamine, thionyl chloride and hydrogen gas. (C) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, or phenylpropanolamine, plus phosphorus pentachloride and hydrogen gas. (D) Ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, N-methylpseudoephedrine, N-ethylpseudoephedrine, chloroephedrine and chloropseudoephedrine, or phenylpropanolamine, plus any reducing agent. (2) Any person who possesses hydriodic acid or a reducing agent or any product containing hydriodic acid or a reducing agent with the intent to sell, transfer, or otherwise furnish that chemical, product, or substance to another person with the knowledge that they will be used to manufacture methamphetamine or any of its analogs specified in subdivision (d) of Section 11055 is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years. (c) Any person who possesses the optical, positional, or geometric isomer of any of the compounds listed in this section with the intent to sell, transfer, or otherwise furnish any of the compounds to another person with the knowledge that they will be used to manufacture these controlled substances is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years: (1) Methamphetamine. (2) Any analog of methamphetamine specified in subdivision (d) of Section 11055. (3) N-ethylamphetamine. (d) Any person who possesses immediate precursors sufficient for the manufacture of methylamine, ethylamine, phenyl-2-propanone, ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing agent, thionyl chloride, or phosphorus pentachloride, with the intent to sell, transfer, or otherwise furnish these substances to another person with the knowledge that they will be used to manufacture methamphetamine is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years. (e) Any person who possesses essential chemicals sufficient to manufacture hydriodic acid or a reducing agent with the intent to sell, transfer, or otherwise furnish those chemicals to another person with the knowledge that they will be used to manufacture methamphetamine is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years. (f) Any person who possesses any compound or mixture containing ephedrine, pseudoephedrine, norpseudoephedrine, N-methylephedrine, N-ethylephedrine, phenylpropanolamine, hydriodic acid or a reducing agent, thionyl chloride, or phosphorus pentachloride, with the intent to sell, transfer, or otherwise furnish that compound or mixture to another person with the knowledge that they will be used to manufacture methamphetamine is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (h) For purposes of this section, a "reducing agent" for the purposes of manufacturing methamphetamine means an agent that causes reduction to occur by either donating a hydrogen atom to an organic compound or by removing an oxygen atom from an organic compound. (i) This section does not apply to drug manufacturers licensed by this state or persons authorized by regulation of the Board of Pharmacy to possess those substances or combinations of substances. SEC. 64. Section 11390 of the Health and Safety Code is amended to read: 11390. (a) Except as otherwise authorized by law, every person who, with intent to produce a controlled substance specified in paragraph (18) or (19) of subdivision (d) of Section 11054, cultivates any spores or mycelium capable of producing mushrooms or other material which contains such a controlled substance shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 65. Section 11391 of the Health and Safety Code is amended to read: 11391. (a) Except as otherwise authorized by law, every person who transports, imports into this state, sells, furnishes, gives away, or offers to transport, import into this state, sell, furnish, or give away any spores or mycelium capable of producing mushrooms or other material which contain a controlled substance specified in paragraph (18) or (19) of subdivision (d) of Section 11054 for the purpose of facilitating a violation of Section 11390 shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 66. Section 11536 of the Health and Safety Code is amended to read: 11536. A violation of any provision of this chapter is a misdemeanor or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a violation shall be punished as provided in the applicable sentencing rules. SEC. 67. Section 11550 of the Health and Safety Code is amended to read: 11550. (a) No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception. Any person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail. The court may place a person convicted under this subdivision on probation for a period not to exceed five years and, except as provided in subdivision (c), shall in all cases in which probation is granted require, as a condition thereof, that the person be confined in a county jail for at least 90 days. Other than as provided by subdivision (c), in no event shall the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail. (b) Any person who (1) is convicted of violating subdivision (a) when the offense occurred within seven years of that person being convicted of two or more separate violations of that subdivision, and (2) refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subdivision (c), shall be punished by imprisonment in a county jail for not less than 180 days nor more than one year. In no event does the court have the power to absolve a person convicted of a violation of subdivision (a) that is punishable under this subdivision from the obligation of spending at least 180 days in confinement in a county jail unless there are no licensed drug rehabilitation programs reasonably available. For the purpose of this section, a drug rehabilitation program shall not be considered reasonably available unless the person is required to pay no more than the court determines that he or she is reasonably able to pay, in order to participate in the program. (c) The court may, when it would be in the interest of justice, permit any person convicted of a violation of subdivision (a) punishable under subdivision (a) or (b) to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in the county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program. In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subdivision, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds. (d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (e) Notwithstanding subdivisions (a) and (b) or any other provision of law, any person who is unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison. As used in this subdivision "immediate personal possession" includes, but is not limited to, the interior passenger compartment of a motor vehicle. (f) Every person who violates subdivision (e) is punishable upon the second and each subsequent conviction by imprisonment in the state prison for two, three, or four years. (g) Nothing in this section prevents deferred entry of judgment or a defendant's participation in a preguilty plea drug court program under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code unless the person is charged with violating subdivision (b) or (c) of Section 243 of the Penal Code. A person charged with violating this section by being under the influence of any controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055 and with violating either subdivision (b) or (c) of Section 243 of the Penal Code or with a violation of subdivision (e) shall be ineligible for deferred entry of judgment or a preguilty plea drug court program. (h) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 68. Section 18 of the Penal Code is amended to read: 18. (a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both. (b) Notwithstanding the foregoing, on or after the operative date of a rule or rules proposed by the California Sentencing Commission applicable to a particular felony, that felony is punishable as provided in the applicable sentencing rules. SEC. 69. Section 19 of the Penal Code is amended to read: 19. (a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. (b) Notwithstanding the foregoing, on or after the operative date of a rule or rules proposed by the California Sentencing Commission applicable to a particular felony, that felony is punishable as provided in the applicable sentencing rules. SEC. 70. Section 126 of the Penal Code is amended to read: 126. Perjury is punishable by imprisonment in the state prison for two, three or four years or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, is punishable as provided in the applicable sentencing rules. SEC. 71. Section 186.10 of the Penal Code is amended to read: 186.10. (a) Any person who conducts or attempts to conduct a transaction or more than one transaction within a seven-day period involving a monetary instrument or instruments of a total value exceeding five thousand dollars ($5,000), or a total value exceeding twenty-five thousand dollars ($25,000) within a 30-day period, through one or more financial institutions (1) with the specific intent to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of any criminal activity, or (2) knowing that the monetary instrument represents the proceeds of, or is derived directly or indirectly from the proceeds of, criminal activity, is guilty of the crime of money laundering. The aggregation periods do not create an obligation for financial institutions to record, report, create, or implement tracking systems or otherwise monitor transactions involving monetary instruments in any time period. In consideration of the constitutional right to counsel afforded by the Sixth Amendment to the United States Constitution and Section 15 of Article I of the California Constitution, when a case involves an attorney who accepts a fee for representing a client in a criminal investigation or proceeding, the prosecution shall additionally be required to prove that the monetary instrument was accepted by the attorney with the intent to disguise or aid in disguising the source of the funds or the nature of the criminal activity. A violation of this section shall be punished by imprisonment in a county jail for not more than one year or in the state prison, by a fine of not more than two hundred fifty thousand dollars ($250,000) or twice the value of the property transacted, whichever is greater, or by both that imprisonment and fine. However, for a second or subsequent conviction for a violation of this section, the maximum fine that may be imposed is five hundred thousand dollars ($500,000) or five times the value of the property transacted, whichever is greater. (b) Notwithstanding any other law, for purposes of this section, each individual transaction conducted in excess of five thousand dollars ($5,000), each series of transactions conducted within a seven-day period that total in excess of five thousand dollars ($5,000), or each series of transactions conducted within a 30-day period that total in excess of twenty-five thousand dollars ($25,000), shall constitute a separate, punishable offense. (c) (1) Any person who is punished under subdivision (a) by imprisonment in the state prison shall also be subject to an additional term of imprisonment in the state prison as follows: (A) If the value of the transaction or transactions exceeds fifty thousand dollars ($50,000) but is less than one hundred fifty thousand dollars ($150,000), the court, in addition to and consecutive to the felony punishment otherwise imposed pursuant to this section, shall impose an additional term of imprisonment of one year. (B) If the value of the transaction or transactions exceeds one hundred fifty thousand dollars ($150,000) but is less than one million dollars ($1,000,000), the court, in addition to and consecutive to the felony punishment otherwise imposed pursuant to this section, shall impose an additional term of imprisonment of two years. (C) If the value of the transaction or transactions exceeds one million dollars ($1,000,000), but is less than two million five hundred thousand dollars ($2,500,000), the court, in addition to and consecutive to the felony punishment otherwise imposed pursuant to this section, shall impose an additional term of imprisonment of three years. (D) If the value of the transaction or transactions exceeds two million five hundred thousand dollars ($2,500,000), the court, in addition to and consecutive to the felony punishment otherwise prescribed by this section, shall impose an additional term of imprisonment of four years. (2) (A) An additional term of imprisonment as provided for in this subdivision shall not be imposed unless the facts of a transaction or transactions, or attempted transaction or transactions, of a value described in paragraph (1), are charged in the accusatory pleading, and are either admitted to by the defendant or are found to be true by the trier of fact. (B) An additional term of imprisonment as provided for in this subdivision may be imposed with respect to an accusatory pleading charging multiple violations of this section, regardless of whether any single violation charged in that pleading involves a transaction or attempted transaction of a value covered by paragraph (1), if the violations charged in that pleading arise from a common scheme or plan and the aggregate value of the alleged transactions or attempted transactions is of a value covered by paragraph (1). (d) All pleadings under this section shall remain subject to the rules of joinder and severance stated in Section 954. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 72. Section 186.11 of the Penal Code is amended to read: 186.11. (a) (1) Any person who commits two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of more than one hundred thousand dollars ($100,000), shall be punished, upon conviction of two or more felonies in a single criminal proceeding, in addition and consecutive to the punishment prescribed for the felony offenses of which he or she has been convicted, by an additional term of imprisonment in the state prison as specified in paragraph (2) or (3). This enhancement shall be known as the aggravated white collar crime enhancement. The aggravated white collar crime enhancement shall only be imposed once in a single criminal proceeding. For purposes of this section, "pattern of related felony conduct" means engaging in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and that are not isolated events. For purposes of this section, "two or more related felonies" means felonies committed against two or more separate victims, or against the same victim on two or more separate occasions. (2) If the pattern of related felony conduct involves the taking of more than five hundred thousand dollars ($500,000), the additional term of punishment shall be two, three, or five years in the state prison. (3) If the pattern of related felony conduct involves the taking of more than one hundred thousand dollars ($100,000), but not more than five hundred thousand dollars ($500,000), the additional term of punishment shall be the term specified in paragraph (1) or (2) of subdivision (a) of Section 12022.6. (b) (1) The additional prison term and penalties provided for in subdivisions (a), (c), and (d) shall not be imposed unless the facts set forth in subdivision (a) are charged in the accusatory pleading and admitted or found to be true by the trier of fact. (2) The additional prison term provided in paragraph (2) of subdivision (a) shall be in addition to any other punishment provided by law, including Section 12022.6, and shall not be limited by any other provision of law. (c) Any person convicted of two or more felonies, as specified in subdivision (a), shall also be liable for a fine not to exceed five hundred thousand dollars ($500,000) or double the value of the taking, whichever is greater, if the existence of facts that would make the person subject to the aggravated white collar crime enhancement have been admitted or found to be true by the trier of fact. However, if the pattern of related felony conduct involves the taking of more than one hundred thousand dollars ($100,000), but not more than five hundred thousand dollars ($500,000), the fine shall not exceed one hundred thousand dollars ($100,000) or double the value of the taking, whichever is greater. (d) Any person convicted of two or more felonies, as specified in subdivision (a), shall be liable for the costs of restitution to victims of the pattern of fraudulent or unlawful conduct, if the existence of facts that would make the person subject to the aggravated white collar crime enhancement have been admitted or found to be true by the trier of fact. (e) (1) If a person is alleged to have committed two or more felonies, as specified in subdivision (a), and the aggravated white collar crime enhancement is also charged, any asset or property that is in the control of that person, and any asset or property that has been transferred by that person to a third party, subsequent to the commission of any criminal act alleged pursuant to subdivision (a), other than in a bona fide purchase, whether found within or outside the state, may be preserved by the superior court in order to pay restitution and fines imposed pursuant to this section. Upon conviction of two or more felonies, as specified in subdivision (a), this property may be levied upon by the superior court to pay restitution and fines imposed pursuant to this section if the existence of facts that would make the person subject to the aggravated white collar crime enhancement have been admitted or found to be true by the trier of fact. (2) To prevent dissipation or secreting of assets or property, the prosecuting agency may, at the same time as or subsequent to the filing of a complaint or indictment charging two or more felonies, as specified in subdivision (a), and the enhancement specified in subdivision (a), file a petition with the criminal division of the superior court of the county in which the accusatory pleading was filed, seeking a temporary restraining order, preliminary injunction, the appointment of a receiver, or any other protective relief necessary to preserve the property or assets. This petition shall commence a proceeding that shall be pendent to the criminal proceeding and maintained solely to effect the criminal remedies provided for in this section. The proceeding shall not be subject to or governed by the provisions of the Civil Discovery Act as set forth in Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure. The petition shall allege that the defendant has been charged with two or more felonies, as specified in subdivision (a), and is subject to the aggravated white collar crime enhancement specified in subdivision (a). The petition shall identify that criminal proceeding and the assets and property to be affected by an order issued pursuant to this section. (3) A notice regarding the petition shall be provided, by personal service or registered mail, to every person who may have an interest in the property specified in the petition. Additionally, the notice shall be published for at least three successive weeks in a newspaper of general circulation in the county where the property affected by an order issued pursuant to this section is located. The notice shall state that any interested person may file a verified claim with the superior court stating the nature and amount of their claimed interest. The notice shall set forth the time within which a claim of interest in the protected property is required to be filed. (4) If the property to be preserved is real property, the prosecuting agency shall record, at the time of filing the petition, a lis pendens in each county in which the real property is situated which specifically identifies the property by legal description, the name of the owner of record as shown on the latest equalized assessment roll, and the assessor's parcel number. (5) If the property to be preserved are assets under the control of a banking or financial institution, the prosecuting agency, at the time of the filing of the petition, may obtain an order from the court directing the banking or financial institution to immediately disclose the account numbers and value of the assets of the accused held by the banking or financial institution. The prosecuting agency shall file a supplemental petition, specifically identifying which banking or financial institution accounts shall be subject to a temporary restraining order, preliminary injunction, or other protective remedy. (6) Any person claiming an interest in the protected property may, at any time within 30 days from the date of the first publication of the notice of the petition, or within 30 days after receipt of actual notice, file with the superior court of the county in which the action is pending a verified claim stating the nature and amount of his or her interest in the property or assets. A verified copy of the claim shall be served by the claimant on the Attorney General or district attorney, as appropriate. (7) The imposition of fines and restitution pursuant to this section shall be determined by the superior court in which the underlying criminal offense is sentenced. Any judge who is assigned to the criminal division of the superior court in the county where the petition is filed may issue a temporary restraining order in conjunction with, or subsequent to, the filing of an allegation pursuant to this section. Any subsequent hearing on the petition shall also be heard by a judge assigned to the criminal division of the superior court in the county in which the petition is filed. At the time of the filing of an information or indictment in the underlying criminal case, any subsequent hearing on the petition shall be heard by the superior court judge assigned to the underlying criminal case. (f) Concurrent with or subsequent to the filing of the petition, the prosecuting agency may move the superior court for, and the superior court may issue, the following pendente lite orders to preserve the status quo of the property alleged in the petition: (1) An injunction to restrain any person from transferring, encumbering, hypothecating, or otherwise disposing of that property. (2) Appointment of a receiver to take possession of, care for, manage, and operate the assets and properties so that the property may be maintained and preserved. The court may order that a receiver appointed pursuant to this section shall be compensated for all reasonable expenditures made or incurred by him or her in connection with the possession, care, management, and operation of any property or assets that are subject to the provisions of this section. (3) A bond or other undertaking, in lieu of other orders, of a value sufficient to ensure the satisfaction of restitution and fines imposed pursuant to this section. (g) (1) No preliminary injunction may be granted or receiver appointed by the court without notice that meets the requirements of paragraph (3) of subdivision (e) to all known and reasonably ascertainable interested parties and upon a hearing to determine that an order is necessary to preserve the property pending the outcome of the criminal proceedings. A temporary restraining order may be issued by the court, ex parte, pending that hearing in conjunction with or subsequent to the filing of the petition upon the application of the prosecuting attorney. The temporary restraining order may be based upon the sworn declaration of a peace officer with personal knowledge of the criminal investigation that establishes probable cause to believe that aggravated white collar crime has taken place and that the amount of restitution and fines established by this section exceeds or equals the worth of the assets subject to the temporary restraining order. The declaration may include the hearsay statements of witnesses to establish the necessary facts. The temporary restraining order may be issued without notice upon a showing of good cause to the court. (2) The defendant, or a person who has filed a verified claim as provided in paragraph (6) of subdivision (e), shall have the right to have the court conduct an order to show cause hearing within 10 days of the service of the request for hearing upon the prosecuting agency, in order to determine whether the temporary restraining order should remain in effect, whether relief should be granted from any lis pendens recorded pursuant to paragraph (4) of subdivision (e), or whether any existing order should be modified in the interests of justice. Upon a showing of good cause, the hearing shall be held within two days of the service of the request for hearing upon the prosecuting agency. (3) In determining whether to issue a preliminary injunction or temporary restraining order in a proceeding brought by a prosecuting agency in conjunction with or subsequent to the filing of an allegation pursuant to this section, the court has the discretion to consider any matter that it deems reliable and appropriate, including hearsay statements, in order to reach a just and equitable decision. The court shall weigh the relative degree of certainty of the outcome on the merits and the consequences to each of the parties of granting the interim relief. If the prosecution is likely to prevail on the merits and the risk of the dissipation of assets outweighs the potential harm to the defendants and the interested parties, the court shall grant injunctive relief. The court shall give significant weight to the following factors: (A) The public interest in preserving the property or assets pendente lite. (B) The difficulty of preserving the property or assets pendente lite where the underlying alleged crimes involve issues of fraud and moral turpitude. (C) The fact that the requested relief is being sought by a public prosecutor on behalf of alleged victims of white collar crimes. (D) The likelihood that substantial public harm has occurred where aggravated white collar crime is alleged to have been committed. (E) The significant public interest involved in compensating the victims of white collar crime and paying court imposed restitution and fines. (4) The court, in making its orders, may consider a defendant's request for the release of a portion of the property affected by this section in order to pay reasonable legal fees in connection with the criminal proceeding, any necessary and appropriate living expenses pending trial and sentencing, and for the purpose of posting bail. The court shall weigh the needs of the public to retain the property against the needs of the defendant to a portion of the property. The court shall consider the factors listed in paragraph (3) prior to making any order releasing property for these purposes. (5) The court, in making its orders, shall seek to protect the interests of any innocent third persons, including an innocent spouse, who were not involved in the commission of any criminal activity. (6) Any petition filed pursuant to this section is part of the criminal proceedings for purposes of appointment of counsel and shall be assigned to the criminal division of the superior court of the county in which the accusatory pleading was filed. (7) Based upon a noticed motion brought by the receiver appointed pursuant to paragraph (2) of subdivision (f), the court may order an interlocutory sale of property named in the petition when the property is liable to perish, to waste, or to be significantly reduced in value, or when the expenses of maintaining the property are disproportionate to the value thereof. The proceeds of the interlocutory sale shall be deposited with the court or as directed by the court pending determination of the proceeding pursuant to this section. (8) The court may make any orders that are necessary to preserve the continuing viability of any lawful business enterprise that is affected by the issuance of a temporary restraining order or preliminary injunction issued pursuant to this action. (9) In making its orders, the court shall seek to prevent any asset subject to a temporary restraining order or preliminary injunction from perishing, spoiling, going to waste, or otherwise being significantly reduced in value. Where the potential for diminution in value exists, the court shall appoint a receiver to dispose of or otherwise protect the value of the property or asset. (10) A preservation order shall not be issued against any assets of a business that are not likely to be dissipated and that may be subject to levy or attachment to meet the purposes of this section. (h) If the allegation that the defendant is subject to the aggravated white collar crime enhancement is dismissed or found by the trier of fact to be untrue, any preliminary injunction or temporary restraining order issued pursuant to this section shall be dissolved. If a jury is the trier of fact, and the jury is unable to reach a unanimous verdict, the court shall have the discretion to continue or dissolve all or a portion of the preliminary injunction or temporary restraining order based upon the interests of justice. However, if the prosecuting agency elects not to retry the case, any preliminary injunction or temporary restraining order issued pursuant to this section shall be dissolved. (i) (1) (A) If the defendant is convicted of two or more felonies, as specified in subdivision (a), and the existence of facts that would make the person subject to the aggravated white collar crime enhancement have been admitted or found to be true by the trier of fact, the trial judge shall continue the preliminary injunction or temporary restraining order until the date of the criminal sentencing and shall make a finding at that time as to what portion, if any, of the property or assets subject to the preliminary injunction or temporary restraining order shall be levied upon to pay fines and restitution to victims of the crime. The order imposing fines and restitution may exceed the total worth of the property or assets subjected to the preliminary injunction or temporary restraining order. The court may order the immediate transfer of the property or assets to satisfy any judgment and sentence made pursuant to this section. Additionally, upon motion of the prosecution, the court may enter an order as part of the judgment and sentence making the order imposing fines and restitution pursuant to this section enforceable pursuant to Title 9 (commencing with Section 680.010) of Part 2 of the Code of Civil Procedure. (B) Additionally, the court shall order the defendant to make full restitution to the victim or to make restitution to the victim based on his or her ability to pay, as defined in subdivision (b) of Section 1203.1b. The payment of the restitution ordered by the court pursuant to this section shall be made a condition of any probation granted by the court if the existence of facts that would make the defendant subject to the aggravated white collar crime enhancement have been admitted or found to be true by the trier of fact. Notwithstanding any other provision of law, the court may order that the period of probation continue for up to 10 years or until full restitution is made to the victim, whichever is earlier. (C) The sentencing court shall retain jurisdiction to enforce the order to pay additional fines and restitution and, in appropriate cases, may initiate probation violation proceedings or contempt of court proceedings against a defendant who is found to have willfully failed to comply with any lawful order of the court. (D) If the execution of judgment is stayed pending an appeal of an order of the superior court pursuant to this section, the preliminary injunction or temporary restraining order shall be maintained in full force and effect during the pendency of the appellate period. (2) The order imposing fines and restitution shall not affect the interest in real property of any third party that was acquired prior to the recording of the lis pendens, unless the property was obtained from the defendant other than as a bona fide purchaser for value. If any assets or property affected by this section are subject to a valid lien, mortgage, security interest, or interest under a conditional sales contract and the amount due to the holder of the lien, mortgage, interest, or contract is less than the appraised value of the property, that person may pay to the state or the local government that initiated the proceeding the amount of the difference between the appraised value of the property and the amount of the lien, mortgage, security interest, or interest under a conditional sales contract. Upon that payment, the state or local entity shall relinquish all claims to the property. If the holder of the interest elects not to make that payment to the state or local governmental entity, the interest in the property shall be deemed transferred to the state or local governmental entity and any indicia of ownership of the property shall be confirmed in the state or local governmental entity. The appraised value shall be determined as of the date judgment is entered either by agreement between the holder of the lien, mortgage, security interest, or interest under a conditional sales contract and the governmental entity involved, or if they cannot agree, then by a court-appointed appraiser for the county in which the action is brought. A person holding a valid lien, mortgage, security interest, or interest under a conditional sales contract shall be paid the appraised value of his or her interest. (3) In making its final order, the court shall seek to protect the legitimately acquired interests of any innocent third persons, including an innocent spouse, who were not involved in the commission of any criminal activity. (j) In all cases where property is to be levied upon pursuant to this section, a receiver appointed by the court shall be empowered to liquidate all property or assets which shall be distributed in the following order of priority: (1) To the receiver, or court-appointed appraiser, for all reasonable expenditures made or incurred by him or her in connection with the sale of the property or liquidation of assets, including all reasonable expenditures for any necessary repairs, storage, or transportation of any property levied upon under this section. (2) To any holder of a valid lien, mortgage, or security interest up to the amount of his or her interest in the property or proceeds. (3) To any victim as restitution for any fraudulent or unlawful acts alleged in the accusatory pleading that were proven by the prosecuting agency as part of the pattern of fraudulent or unlawful acts. (4) For payment of any fine imposed pursuant to this section. The proceeds obtained in payment of a fine shall be paid to the treasurer of the county in which the judgment was entered, or if the action was undertaken by the Attorney General, to the Treasurer. If the payment of any fine imposed pursuant to this section involved losses resulting from violation of Section 550 of this code or Section 1871.4 of the Insurance Code, one-half of the fine collected shall be paid to the treasurer of the county in which the judgment was entered, and one-half of the fine collected shall be paid to the Department of Insurance for deposit in the appropriate account in the Insurance Fund. The proceeds from the fine first shall be used by a county to reimburse local prosecutors and enforcement agencies for the reasonable costs of investigation and prosecution of cases brought pursuant to this section. (5) To the Restitution Fund, or in cases involving convictions relating to insurance fraud, to the Insurance Fund as restitution for crimes not specifically pleaded and proven in the accusatory pleading. (k) If, after distribution pursuant to paragraphs (1) and (2) of subdivision (j), the value of the property to be levied upon pursuant to this section is insufficient to pay for restitution and fines, the court shall order an equitable sharing of the proceeds of the liquidation of the property, and any other recoveries, which shall specify the percentage of recoveries to be devoted to each purpose. At least 70 percent of the proceeds remaining after distribution pursuant to paragraphs (1) and (2) of subdivision (j) shall be devoted to restitution. () Unless otherwise expressly provided, the remedies or penalties provided by this section are cumulative to each other and to the remedies or penalties available under all other laws of this state, except that two separate actions against the same defendant and pertaining to the same fraudulent or unlawful acts may not be brought by a district attorney or the Attorney General pursuant to this section and Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code. If a fine is imposed under this section, it shall be in lieu of all other fines that may be imposed pursuant to any other provision of law for the crimes for which the defendant has been convicted in the action. (m) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 73. Section 191.5 of the Penal Code is amended to read: 191.5. (a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence. (b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence. (c) (1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years. (2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment in the state prison for 16 months or 2 or 4 years. (d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290. (g) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner. (h) For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact. SEC. 74. Section 193 of the Penal Code is amended to read: 193. (a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years. (b) Involuntary manslaughter is punishable by imprisonment in the state prison for two, three, or four years. (c) Vehicular manslaughter is punishable as follows: (1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years. (2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year. (3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 75. Section 193.5 of the Penal Code is amended to read: 193.5. Manslaughter committed during the operation of a vessel is punishable as follows: (a) A violation of subdivision (a) of Section 192.5 is punishable by imprisonment in the state prison for 4, 6, or ten years. (b) A violation of subdivision (b) of Section 192.5 is punishable by imprisonment in a county jail for not more than one year or by imprisonment in the state prison for 16 months or 2 or 4 years. (c) A violation of subdivision (c) of Section 192.5 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years. (d) A violation of subdivision (d) of Section 192.5 is punishable by imprisonment in the county jail for not more than one year. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 76. Section 204 of the Penal Code is amended to read: 204. Mayhem is punishable by imprisonment in the state prison for two, four, or eight years or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, is punishable as provided in the applicable sentencing rules. SEC. 77. Section 205 of the Penal Code is amended to read: 205. (a) A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 78. Section 208 of the Penal Code is amended to read: 208. (a) Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years. (b) If the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. This subdivision is not applicable to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, as specified in Section 7611 of the Family Code, an adoptive parent, or a person who has been granted access to the minor child by a court order. (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) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 79. Section 209 of the Penal Code is amended to read: 209. (a) Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers death or bodily harm, or is intentionally confined in a manner which exposes that person to a substantial likelihood of death, or shall be punished by imprisonment in the state prison for life with the possibility of parole in cases where no such person suffers 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. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 80. Section 209.5 of the Penal Code is amended to read: 209.5. (a) Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole. (b) This section shall only apply if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself. (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) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 81. Section 210 of the Penal Code is amended to read: 210. (a) Every person who for the purpose of obtaining any ransom or reward, or to extort or exact from any person any money or thing of value, poses as, or in any manner represents himself to be a person who has seized, confined, inveigled, enticed, decoyed, abducted, concealed, kidnapped or carried away any person, or who poses as, or in any manner represents himself to be a person who holds or detains that person, or who poses as, or in any manner represents himself to be a person who has aided or abetted that act, or who poses as or in any manner represents himself to be a person who has the influence, power, or ability, to obtain the release of that person so seized, confined, inveigled, enticed, decoyed, abducted, concealed, kidnapped or carried away, is guilty of a felony and upon conviction thereof shall be punished by imprisonmentfor two, threein the state prison for two, three, or four years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) Nothing in this section prohibits any person who, in good faith believes that he can rescue any person who has been seized, confined, inveigled, enticed, decoyed, abducted, concealed, kidnapped or carried away, and who has had no part in, or connection with, such confinement, inveigling, decoying, abducting, concealing, kidnapping, or carrying away, from offering to rescue or obtain the release of that person for a monetary consideration or other thing of value. SEC. 82. Section 210.5 of the Penal Code is amended to read: 210.5. (a) Every person who commits the offense of false imprisonment, as defined in Section 236, against a person for purposes of protection from arrest, which substantially increases the risk of harm to the victim, or for purposes of using the person as a shield is punishable by imprisonment in the state prison for three, five, or eight years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 83. Section 213 of the Penal Code is amended to read: 213. (a) Robbery is punishable as follows: (1) Robbery of the first degree is punishable as follows: (A) If the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house, a vessel as defined in Section 21 of the Harbors and Navigation Code, which is inhabited and designed for habitation, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, a trailer coach as defined in the Vehicle Code, which is inhabited, or the inhabited portion of any other building, by imprisonment in the state prison for three, six, or nine years. (B) In all cases other than that specified in subparagraph (A), by imprisonment in the state prison for three, four, or six years. (2) Robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years. (b) Notwithstanding Section 664, attempted robbery in violation of paragraph (2) of subdivision (a) is punishable by imprisonment in the state prison. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 84. Section 214 of the Penal Code is amended to read: 214. (a) Every person who goes upon or boards any railroad train, car or engine, with the intention of robbing any passenger or other person on that train, car or engine, of any personal property thereon in the possession or care or under the control of any that passenger or other person, or who interferes in any manner with any switch, rail, sleeper, viaduct, culvert, embankment, structure or appliance pertaining to or connected with any railroad, or places any dynamite or other explosive substance or material upon or near the track of any railroad, or who sets fire to any railroad bridge or trestle, or who shows, masks, extinguishes or alters any light or other signal, or exhibits or compels any other person to exhibit any false light or signal, or who stops a train, car or engine, or slackens the speed thereof, or who compels or attempts to compel any person in charge or control thereof to stop a train, car or engine, or slacken the speed thereof, with the intention of robbing any passenger or other person on that train, car or engine, of any personal property thereon in the possession or charge or under the control of that passenger or other person, is guilty of a felony. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 85. Section 215 of the Penal Code is amended to read: 215. (a) "Carjacking" is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear. (b) Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years. (c) This section shall not be construed to supersede or affect Section 211. A person may be charged with a violation of this section and Section 211. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 86. Section 220 of the Penal Code is amended to read: 220. (a) Except as provided in subdivision (b), any person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for two, four, or six years. (b) Any person who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for life with the possibility of parole. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 87. Section 222 of the Penal Code is amended to read: 222. (a) Every person guilty of administering to another any chloroform, ether, laudanum, or any controlled substance, anaesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, is guilty of a felony. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 88. Section 236.1 of the Penal Code is amended to read: 236.1. (a) Any person who deprives or violates the personal liberty of another with the intent to effect or maintain a felony violation of Section 266, 266h, 266i, 267, 311.4, or 518, or to obtain forced labor or services, is guilty of human trafficking. (b) Except as provided in subdivision (c), a violation of this section is punishable by imprisonment in the state prison for three, four, or five years. (c) A violation of this section where the victim of the trafficking was under 18 years of age at the time of the commission of the offense is punishable by imprisonment in the state prison for four, six, or eight years. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) (1) For purposes of this section, unlawful deprivation or violation of the personal liberty of another includes substantial and sustained restriction of another's liberty accomplished through fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out. (2) Duress includes knowingly destroying, concealing, removing, confiscating, or possessing any actual or purported passport or immigration document of the victim. (f) For purposes of this section, "forced labor or services" means labor or services that are performed or provided by a person and are obtained or maintained through force, fraud, or coercion, or equivalent conduct that would reasonably overbear the will of the person. (g) The Legislature finds that the definition of human trafficking in this section is equivalent to the federal definition of a severe form of trafficking found in Section 7102(8) of Title 22 of the United States Code. SEC. 89. Section 237 of the Penal Code is amended to read: 237. (a) False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonmentbeis effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison. (b) False imprisonment of an elder or dependent adult by use of violence, menace, fraud, or deceit shall be punishable as described in subdivision (f) of Section 368. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 90. Section 241 of the Penal Code is amended to read: 241. (a) An assault is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment. (b) When an assault is committed against the person of a peace officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, firefighter, emergency medical technician, mobile intensive care paramedic, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, the assault is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both the fine and imprisonment. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) As used in this section, the following definitions apply: (1) Peace officer means any person defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2. (2) "Emergency medical technician" means a person possessing a valid course completion certificate from a program approved by the State Department of Health Services for the medical training and education of ambulance personnel, and who meets the standards of Division 2.5 (commencing with Section 1797) of the Health and Safety Code. (3) "Mobile intensive care paramedic" refers to those persons who meet the standards set forth in Division 2.5 (commencing with Section 1797) of the Health and Safety Code. (4) "Nurse" means a person who meets the standards of Division 2.5 (commencing with Section 1797) of the Health and Safety Code. (5) "Lifeguard" means a person who is: (A) Employed as a lifeguard by the state, a county, or a city, and is designated by local ordinance as a public officer who has a duty and responsibility to enforce local ordinances and misdemeanors through the issuance of citations. (B) Wearing distinctive clothing which includes written identification of the person's status as a lifeguard and which clearly identifies the employing organization. (6) "Process server" means any person who meets the standards or is expressly exempt from the standards set forth in Section 22350 of the Business and Professions Code. (7) "Traffic officer" means any person employed by a county or city to monitor and enforce state laws and local ordinances relating to parking and the operation of vehicles. (8) "Animal control officer" means any person employed by a county or city for purposes of enforcing animal control laws or regulations. (9) (A) "Code enforcement officer" means any person who is not described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 and who is employed by any governmental subdivision, public or quasi-public corporation, public agency, public service corporation, any town, city, county, or municipal corporation, whether incorporated or chartered, that has enforcement authority for health, safety, and welfare requirements, and whose duties include enforcement of any statute, rules, regulations, or standards, and who is authorized to issue citations, or file formal complaints. (B) "Code enforcement officer" also includes any person who is employed by the Department of Housing and Community Development who has enforcement authority for health, safety, and welfare requirements pursuant to the Employee Housing Act (Part 1 (commencing with Section 17000) of Division 13 of the Health and Safety Code); the State Housing Law (Part 1.5 (commencing with Section 17910) of Division 13 of the Health and Safety Code); the Mobilehomes-Manufactured Housing Act (Part 2 (commencing with Section 18000) of Division 13 of the Health and Safety Code); the Mobilehome Parks Act (Part 2.1 (commencing with Section 18200) of Division 13 of the Health and Safety Code); and the Special Occupancy Parks Act (Part 2.3 (commencing with Section 18860) of Division 13 of the Health and Safety Code). SEC. 91. Section 241.1 of the Penal Code is amended to read: 241.1. (a) When an assault is committed against the person of a custodial officer as defined in Section 831 or 831.5, and the person committing the offense knows or reasonably should know that the victim is a custodial officer engaged in the performance of his duties, the offense shall be punished by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 92. Section 241.2 of the Penal Code is amended to read: 241.2. (a) (1) When an assault is committed on school or park property against any person, the assault is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both that fine and imprisonment. (2) When a violation of this section is committed by a minor on school property, the court may, in addition to any other fine, sentence, or as a condition of probation, order the minor to attend counseling as deemed appropriate by the court at the expense of the minor's parents. The court shall take into consideration the ability of the minor's parents to pay, however, no minor shall be relieved of attending counseling because of the minor's parents' inability to pay for the counseling imposed by this section. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) "School," as used in this section, means any elementary school, junior high school, four-year high school, senior high school, adult school or any branch thereof, opportunity school, continuation high school, regional occupational center, evening high school, technical school, or community college. (d) "Park," as used in this section, means any publicly maintained or operated park. It does not include any facility when used for professional sports or commercial events. SEC. 93. Section 241.3 of the Penal Code is amended to read: 241.3. (a) When an assault is committed against any person on the property of, or on a motor vehicle of, a public transportation provider, the offense shall be punished by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both the fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) As used in this section, "public transportation provider" means a publicly or privately owned entity that operates, for the transportation of persons for hire, a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in air, or that operates a schoolbus. (d) As used in this section, "on the property of" means the entire station where public transportation is available, including the parking lot reserved for the public who utilize the transportation system. SEC. 94. Section 241.4 of the Penal Code is amended to read: 241.4. (a) An assault is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both. When the assault is committed against the person of a peace officer engaged in the performance of his or her duties as a member of a police department of a school district pursuant to Section 38000 of the Education Code, and the person committing the offense knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, the offense shall be punished by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 95. Section 241.6 of the Penal Code is amended to read: 241.6. (a) When an assault is committed against a school employee engaged in the performance of his or her duties, or in retaliation for an act performed in the course of his or her duties, whether on or off campus, during the schoolday or at any other time, and the person committing the offense knows or reasonably should know the victim is a school employee, the assault is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both the fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) For purposes of this section, "school employee" has the same meaning as defined in subdivision (d) of Section 245.5. (d) This section shall not apply to conduct arising during the course of an otherwise lawful labor dispute. SEC. 96. Section 241.7 of the Penal Code is amended to read: 241.7. (a) Any person who is a party to a civil or criminal action in which a jury has been selected to try the case and who, while the legal action is pending or after the conclusion of the trial, commits an assault against any juror or alternate juror who was selected and sworn in that legal action, shall be punished by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 97. Section 241.8 of the Penal Code is amended to read: 241.8. (a) Any person who commits an assault against a member of the United States Armed Forces because of the victim's service in the United States Armed Forces shall be punished by a fine not exceeding two thousand dollars ($2,000), by imprisonment in a county jail for a period not exceeding one year, or by both that fine and imprisonment. "Because of" means that the bias motivation must be a cause in fact of the assault, whether or not other causes exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the assault. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 98. Section 243 of the Penal Code is amended to read: 243. (a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. (b) When a battery is committed against the person of a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, nonsworn employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. (c) (1) When a battery is committed against a custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a nonsworn employee of a probation department, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, and an injury is inflicted on that victim, the battery is punishable by a fine of not more than two thousand dollars ($2,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years. (2) When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman and the person committing the offense knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or in the state prison for 16 months, or two or three years, or by both that fine and imprisonment. (d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years. (e) (1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiance, or fiancee, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as defined in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution. (2) Upon conviction of a violation of this subdivision, if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements: (A) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000). (B) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted. (3) Upon conviction of a violation of this subdivision, if probation is granted or the execution or imposition of the sentence is suspended and the person has been previously convicted of a violation of this subdivision and sentenced under paragraph (1), the person shall be imprisoned for not less than 48 hours in addition to the conditions in paragraph (1). However, the court, upon a showing of good cause, may elect not to impose the mandatory minimum imprisonment as required by this subdivision and may, under these circumstances, grant probation or order the suspension of the execution or imposition of the sentence. (4) The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence so as to display society's condemnation for these crimes of violence upon victims with whom a close relationship has been formed. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (g) As used in this section: (1) "Peace officer" means any person defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2. (2) "Emergency medical technician" means a person who is either an EMT-I, EMT-II, or EMT-P (paramedic), and possesses a valid certificate or license in accordance with the standards of Division 2.5 (commencing with Section 1797) of the Health and Safety Code. (3) "Nurse" means a person who meets the standards of Division 2.5 (commencing with Section 1797) of the Health and Safety Code. (4) "Serious bodily injury" means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement. (5) "Injury" means any physical injury which requires professional medical treatment. (6) "Custodial officer" means any person who has the responsibilities and duties described in Section 831 and who is employed by a law enforcement agency of any city or county or who performs those duties as a volunteer. (7) "Lifeguard" means a person defined in paragraph (5) of subdivision (c) of Section 241. (8) "Traffic officer" means any person employed by a city, county, or city and county to monitor and enforce state laws and local ordinances relating to parking and the operation of vehicles. (9) "Animal control officer" means any person employed by a city, county, or city and county for purposes of enforcing animal control laws or regulations. (10) "Dating relationship" means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. (11) (A) "Code enforcement officer" means any person who is not described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 and who is employed by any governmental subdivision, public or quasi-public corporation, public agency, public service corporation, any town, city, county, or municipal corporation, whether incorporated or chartered, who has enforcement authority for health, safety, and welfare requirements, and whose duties include enforcement of any statute, rules, regulations, or standards, and who is authorized to issue citations, or file formal complaints. (B) "Code enforcement officer" also includes any person who is employed by the Department of Housing and Community Development who has enforcement authority for health, safety, and welfare requirements pursuant to the Employee Housing Act (Part 1 (commencing with Section 17000) of Division 13 of the Health and Safety Code); the State Housing Law (Part 1.5 (commencing with Section 17910) of Division 13 of the Health and Safety Code); the Mobilehomes-Manufactured Housing Act (Part 2 (commencing with Section 18000) of Division 13 of the Health and Safety Code); the Mobilehome Parks Act (Part 2.1 (commencing with Section 18200) of Division 13 of the Health and Safety Code); and the Special Occupancy Parks Act (Part 2.3 (commencing with Section 18860) of Division 13 of the Health and Safety Code). (h) It is the intent of the Legislature by amendments to this section at the 1981-82 and 1983-84 Regular Sessions to abrogate the holdings in cases such as People v. Corey, 21 Cal. 3d 738, and Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, and to reinstate prior judicial interpretations of this section as they relate to criminal sanctions for battery on peace officers who are employed, on a part-time or casual basis, while wearing a police uniform as private security guards or patrolmen and to allow the exercise of peace officer powers concurrently with that employment. SEC. 99. Section 243.10 of the Penal Code is amended to read: 243.10. (a) Any person who commits a battery against a member of the United States Armed Forces because of the victim's service in the United States Armed Forces shall be punished by a fine not exceeding two thousand dollars ($2,000), by imprisonment in a county jail for a period not exceeding one year, or by both that fine and imprisonment. "Because of" means that the bias motivation must be a cause in fact of the battery, whether or not other causes exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the battery. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 100. Section 243.2 of the Penal Code is amended to read: 243.2. (a) (1) Except as otherwise provided in Section 243.6, when a battery is committed on school property, park property, or the grounds of a public or private hospital, against any person, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both the fine and imprisonment. (2) When a violation of this section is committed by a minor on school property, the court may, in addition to any other fine, sentence, or as a condition of probation, order the minor to attend counseling as deemed appropriate by the court at the expense of the minor's parents. The court shall take into consideration the ability of the minor's parents to pay, however, no minor shall be relieved of attending counseling because of the minor's parents' inability to pay for the counseling imposed by this section. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) For the purposes of this section, the following terms have the following meanings: (1) "Hospital" means a facility for the diagnosis, care, and treatment of human illness that is subject to, or specifically exempted from, the licensure requirements of Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code. (2) "Park" means any publicly maintained or operated park. It does not include any facility when used for professional sports or commercial events. (3) "School" means any elementary school, junior high school, four-year high school, senior high school, adult school or any branch thereof, opportunity school, continuation high school, regional occupational center, evening high school, technical school, or community college. (d) This section shall not apply to conduct arising during the course of an otherwise lawful labor dispute. SEC. 101. Section 243.25 of the Penal Code is amended to read: 243.25. (a) When a battery is committed against the person of an elder or a dependent adult as defined in Section 368, with knowledge that he or she is an elder or a dependent adult, the offense shall be punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 102. Section 243.3 of the Penal Code is amended to read: 243.3. (a) When a battery is committed against the person of an operator, driver, or passenger on a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in the air, used for the transportation of persons for hire, or against a schoolbus driver, or against the person of a station agent or ticket agent for the entity providing the transportation, and the person who commits the offense knows or reasonably should know that the victim, in the case of an operator, driver, or agent, is engaged in the performance of his or her duties, or is a passenger the offense shall be punished by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. If an injury is inflicted on that victim, the offense shall be punished by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or in the state prison for 16 months, or two or three years, or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 103. Section 243.35 of the Penal Code is amended to read: 243.35. (a) Except as provided in Section 243.3, when a battery is committed against any person on the property of, or in a motor vehicle of, a public transportation provider, the offense shall be punished by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both the fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) As used in this section, "public transportation provider" means a publicly or privately owned entity that operates, for the transportation of persons for hire, a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in air, or that operates a schoolbus. (d) As used in this section, "on the property of" means the entire station where public transportation is available, including the parking lot reserved for the public who utilize the transportation system. SEC. 104. Section 243.4 of the Penal Code is amended to read: 243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000). (b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000). (c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000). (d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person's will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000). (e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full. (2) As used in this subdivision, "touches" means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim. (f) As used in subdivisions (a), (b), (c), and (d), "touches" means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense. (g) As used in this section, the following terms have the following meanings: (1) "Intimate part" means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female. (2) "Sexual battery" does not include the crimes defined in Section 261 or 289. (3) "Seriously disabled" means a person with severe physical or sensory disabilities. (4) "Medically incapacitated" means a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication. (5) "Institutionalized" means a person who is located voluntarily or involuntarily in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital. (6) "Minor" means a person under 18 years of age. (h) This section shall not be construed to limit or prevent prosecution under any other law which also proscribes a course of conduct that also is proscribed by this section. (i) In the case of a felony conviction for a violation of this section, the fact that the defendant was an employer and the victim was an employee of the defendant shall be a factor in aggravation in sentencing. (j) A person who commits a violation of subdivision (a), (b), (c), or (d) against a minor when the person has a prior felony conviction for a violation of this section shall be guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years and a fine not exceeding ten thousand dollars ($10,000). (k) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 105. Section 243.6 of the Penal Code is amended to read: 243.6. (a) When a battery is committed against a school employee engaged in the performance of his or her duties, or in retaliation for an act performed in the course of his or her duties, whether on or off campus, during the schoolday or at any other time, and the person committing the offense knows or reasonably should know that the victim is a school employee, the battery is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both the fine and imprisonment. However, if an injury is inflicted on the victim, the battery shall be punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than two thousand dollars ($2,000), or by imprisonment in the state prison for 16 months, or two or three years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) For purposes of this section, "school employee" has the same meaning as defined in subdivision (d) of Section 245.5. (d) This section shall not apply to conduct arising during the course of an otherwise lawful labor dispute. SEC. 106. Section 243.7 of the Penal Code is amended to read: 243.7. (a) Any person who is a party to a civil or criminal action in which a jury has been selected to try the case and who, while the legal action is pending or after the conclusion of the trial commits a battery against any juror or alternate juror who was selected and sworn in that legal action shall be punished by a fine not to exceed five thousand dollars ($5,000), or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment, or by the imprisonment in the state prison for 16 months, or for two or three years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 107. Section 243.8 of the Penal Code is amended to read: 243.8. (a) When a battery is committed against a sports official immediately prior to, during, or immediately following an interscholastic, intercollegiate, or any other organized amateur or professional athletic contest in which the sports official is participating, and the person who commits the offense knows or reasonably should know that the victim is engaged in the performance of his or her duties, the offense shall be punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) For purposes of this section, "sports official" means any individual who serves as a referee, umpire, linesman, or who serves in a similar capacity but may be known by a different title or name and is duly registered by, or a member of, a local, state, regional, or national organization engaged in part in providing education and training to sports officials. SEC. 108. Section 243.9 of the Penal Code is amended to read: 243.9. (a) Every person confined in any local detention facility who commits a battery by gassing upon the person of any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, or employee of the local detention facility is guilty of aggravated battery and shall be punished by imprisonment in a county jail or by imprisonment in the state prison for two, three, or four years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) For purposes of this section, "gassing" means intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes. (d) The person in charge of the local detention facility shall use every available means to immediately investigate all reported or suspected violations of subdivision (a), including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances. If there is probable cause to believe that the inmate has violated subdivision (a), the chief medical officer of the local detention facility, or his or her designee, may, when he or she deems it medically necessary to protect the health of an officer or employee who may have been subject to a violation of this section, order the inmate to receive an examination or test for hepatitis or tuberculosis or both hepatitis and tuberculosis on either a voluntary or involuntary basis immediately after the event, and periodically thereafter as determined to be necessary by the medical officer in order to ensure that further hepatitis or tuberculosis transmission does not occur. These decisions shall be consistent with an occupational exposure as defined by the Center for Disease Control and Prevention. The results of any examination or test shall be provided to the officer or employee who has been subject to a reported or suspected violation of this section. Nothing in this subdivision shall be construed to otherwise supersede the operation of Title 8 (commencing with Section 7500). Any person performing tests, transmitting test results, or disclosing information pursuant to this section shall be immune from civil liability for any action taken in accordance with this section. (e) The person in charge of the local detention facility shall refer all reports for which there is probable cause to believe that the inmate has violated subdivision (a) to the local district attorney for prosecution. (f) Nothing in this section shall preclude prosecution under both this section and any other provision of law. SEC. 109. Section 244 of the Penal Code is amended to read: 244. (a) Any person who willfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, flammable substance, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of that person, is punishable by imprisonment in the state prison for two, three or four years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) As used in this section, "flammable substance" means gasoline, petroleum products, or flammable liquids with a flashpoint of 150 degrees Fahrenheit or less. SEC. 110. Section 244.5 of the Penal Code is amended to read: 244.5. (a) As used in this section, "stun gun" means any item, except a taser, used or intended to be used as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge. (b) Every person who commits an assault upon the person of another with a stun gun or taser shall be punished by imprisonment in a county jail for a term not exceeding one year, or by imprisonment in the state prison for 16 months, two, or three years. (c) Every person who commits an assault upon the person of a peace officer or firefighter with a stun gun or taser, who knows or reasonably should know that the person is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the county jail for a term not exceeding one year, or by imprisonment in the state prison for two, three, or four years. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) This section shall not be construed to preclude or in any way limit the applicability of Section 245 in any criminal prosecution. SEC. 111. Section 245 of the Penal Code is amended to read: 245. (a) (1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment. (2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment. (3) Any person who commits an assault upon the person of another with a machinegun, as defined in Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, shall be punished by imprisonment in the state prison for 4, 8, or 12 years. (b) Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years. (c) Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years. (d) (1) Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years. (2) Any person who commits an assault upon the person of a peace officer or firefighter with a semiautomatic firearm and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for five, seven, or nine years. (3) Any person who commits an assault with a machinegun, as defined in Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for 6, 9, or 12 years. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) When a person is convicted of a violation of this section in a case involving use of a deadly weapon or instrument or firearm, and the weapon or instrument or firearm is owned by that person, the court shall order that the weapon or instrument or firearm be deemed a nuisance, and it shall be confiscated and disposed of in the manner provided by Section 12028. (g) As used in this section, "peace officer" refers to any person designated as a peace officer in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2. SEC. 112. Section 245.2 of the Penal Code is amended to read: 245.2. (a) Every person who commits an assault with a deadly weapon or instrument or by any means of force likely to produce great bodily injury upon the person of an operator, driver, or passenger on a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in the air, used for the transportation of persons for hire, or upon the person of a station agent or ticket agent for the entity providing such transportation, when the driver, operator, or agent is engaged in the performance of his or her duties, and where the person who commits the assault knows or reasonably should know that the victim is engaged in the performance of his or her duties, or is a passenger, shall be punished by imprisonment in the state prison for three, four, or five years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 113. Section 245.3 of the Penal Code is amended to read: 245.3. (a) Every person who commits an assault with a deadly weapon or instrument or by any means likely to produce great bodily injury upon the person of a custodial officer as defined in Section 831 or 831.5, and who knows or reasonably should know that such victim is such a custodial officer engaged in the performance of his duties, shall be punished by imprisonment in the state prison for three, four, or five years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) When a person is convicted of a violation of this section in a case involving use of a deadly weapon or instrument, and that weapon or instrument is owned by that person, the court may, in its discretion, order that the weapon or instrument be deemed a nuisance and shall be confiscated and destroyed in the manner provided by Section 12028. SEC. 114. Section 245.5 of the Penal Code is amended to read: 245.5. (a) Every person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a school employee, and who knows or reasonably should know that the victim is a school employee engaged in the performance of his or her duties, when that school employee is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years, or in a county jail not exceeding one year. (b) Every person who commits an assault with a firearm upon the person of a school employee, and who knows or reasonably should know that the victim is a school employee engaged in the performance of his or her duties, when the school employee is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years, or in a county jail for not less than six months and not exceeding one year. (c) Every person who commits an assault upon the person of a school employee with a stun gun or taser, and who knows or reasonably should know that the person is a school employee engaged in the performance of his or her duties, when the school employee is engaged in the performance of his or her duties, shall be punished by imprisonment in a county jail for a term not exceeding one year or by imprisonment in the state prison for two, three, or four years. This subdivision shall not be construed to preclude or in any way limit the applicability of Section 245 in any criminal prosecution. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) As used in the section, "school employee" means any person employed as a permanent or probationary certificated or classified employee of a school district on a part-time or full-time basis, including a substitute teacher. "School employee," as used in this section, also includes a student teacher, or a school board member. "School," as used in this section, has the same meaning as that term is defined in Section 626. SEC. 115. Section 245.6 of the Penal Code is amended to read: 245.6. (a) It is unlawful to engage in hazing, as defined in this section. (b) "Hazing" means any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. The term "hazing" does not include customary athletic events or school-sanctioned events. (c) A violation of this section that does not result in serious bodily injury is a misdemeanor, punishable by a fine of not less than one hundred dollars ($100), nor more than five thousand dollars ($5,000), or imprisonment in the county jail for not more than one year, or both. (d) Any person who personally engages in hazing that results in death or serious bodily injury as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code, is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in county jail not exceeding one year, or by imprisonment in the state prison. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) The person against whom the hazing is directed may commence a civil action for injury or damages. The action may be brought against any participants in the hazing, or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing. (g) Prosecution under this section shall not prohibit prosecution under any other provision of law. SEC. 116. Section 246 of the Penal Code is amended to read: 246. (a) Any person who maliciously and willfully discharges a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) As used in this section, "inhabited" means currently being used for dwelling purposes, whether occupied or not. SEC. 117. Section 246.3 of the Penal Code is amended to read: 246.3. (a) Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. (b) Except as otherwise authorized by law, any person who willfully discharges a BB device in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) As used in this section, "BB device" means any instrument that expels a projectile, such as a BB or a pellet, through the force of air pressure, gas pressure, or spring action. SEC. 118. Section 247 of the Penal Code is amended to read: 247. (a) Any person who willfully and maliciously discharges a firearm at an unoccupied aircraft is guilty of a felony. (b) Any person who discharges a firearm at an unoccupied motor vehicle or an uninhabited building or dwelling house is guilty of a public offense punishable by imprisonment in the county jail for not more than one year or in the state prison. This subdivision does not apply to shooting at an abandoned vehicle, unoccupied vehicle, uninhabited building, or dwelling house with the permission of the owner. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) As used in this section and Section 246 "aircraft" means any contrivance intended for and capable of transporting persons through the airspace. SEC. 119. Section 247.5 of the Penal Code is amended to read: 247.5. (a) Any person who willfully and maliciously discharges a laser at an aircraft, whether in motion or in flight, while occupied, is guilty of a violation of this section, which shall be punishable as either a misdemeanor by imprisonment in the county jail for not more than one year or by a fine of one thousand dollars ($1,000), or a felony by imprisonment in the state prison for 16 months, two years, or three years, or by a fine of two thousand dollars ($2,000). This section does not apply to the conduct of laser development activity by or on behalf of the United States Armed Forces. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) As used in this section, "aircraft" means any contrivance intended for and capable of transporting persons through the airspace. (d) As used in this section, "laser" means a device that utilizes the natural oscillations of atoms or molecules between energy levels for generating coherent electromagnetic radiation in the ultraviolet, visible, or infrared region of the spectrum, and when discharged exceeds one milliwatt continuous wave. SEC. 120. Section 261.5 of the Penal Code is amended to read: 261.5. (a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age. (b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) (1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts: (A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000). (B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000). (C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000). (D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000). (2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature. (3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. SEC. 121. Section 264 of the Penal Code is amended to read: 264. (a) Rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years. (b) In addition to any punishment imposed under this section the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates Section 261 or 262 with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 122. Section 264.1 of the Penal Code is amended to read: 264.1. (a) The provisions of Section 264 notwithstanding, in any case in which the defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed an act described in Section 261, 262, or 289, either personally or by aiding and abetting the other person, that fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or if admitted by the defendant, the defendant shall suffer confinement in the state prison for five, seven, or nine years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 123. Section 266 of the Penal Code is amended to read: 266. (a) Every person who inveigles or entices any unmarried female, of previous chaste character, under the age of 18 years, into any house of ill fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any man; and every person who aids or assists in that inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, shall be punished by imprisonment in the state prison, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 124. Section 266a of the Penal Code is amended to read: 266a. (a) Every person who, within this state, takes any person against his or her will and without his or her consent, or with his or her consent procured by fraudulent inducement or misrepresentation, for the purpose of prostitution, as defined in subdivision (b) of Section 647, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000). (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 125. Section 266b of the Penal Code is amended to read: 266b. (a) Every person who takes any other person unlawfully, and against his or her will, and by force, menace, or duress, compels him or her to live with such person in an illicit relation, against his or her consent, or to so live with any other person, is punishable by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 126. Section 266c of the Penal Code is amended to read: 266c. (a) Every person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person's free will, and does cause the victim to so act, is punishable by imprisonment in a county jail for not more than one year or in the state prison for two, three, or four years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) As used in this section, "fear" means the fear of physical injury or death to the person or to any relative of the person or member of the person's family. SEC. 127. Section 266d of the Penal Code is amended to read: 266d. (a) Any person who receives any money or other valuable thing for or on account of placing in custody any other person for the purpose of causing the other person to cohabit with any person to whom the other person is not married, is guilty of a felony. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 128. Section 266e of the Penal Code is amended to read: 266e. (a) Every person who purchases, or pays any money or other valuable thing for, any person for the purpose of prostitution as defined in subdivision (b) of Section 647, or for the purpose of placing that person, for immoral purposes, in any house or place against his or her will, is guilty of a felony. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 129. Section 266f of the Penal Code is amended to read: 266f. (a) Every person who sells any person or receives any money or other valuable thing for or on account of his or her placing in custody, for immoral purposes, any person, whether with or without his or her consent, is guilty of a felony. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 130. Section 266g of the Penal Code is amended to read: 266g. (a) Every man who, by force, intimidation, threats, persuasion, promises, or any other means, places or leaves, or procures any other person or persons to place or leave, his wife in a house of prostitution, or connives at or consents to, or permits, the placing or leaving of his wife in a house of prostitution, or allows or permits her to remain therein, is guilty of a felony and punishable by imprisonment in the state prison for two, three or four years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) In any prosecution under this section, a wife is a competent witness against her husband. SEC. 131. Section 266h of the Penal Code is amended to read: 266h. (a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. (b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows: (1) If the person engaged in prostitution is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 132. Section 266i of the Penal Code is amended to read: 266i. (a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: (1) Procures another person for the purpose of prostitution. (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute. (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution. (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. (b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows: (1) If the other person is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. (2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 133. Section 266j of the Penal Code is amended to read: 266j. (a) Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years, and by a fine not to exceed fifteen thousand dollars ($15,000). (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 134. Section 266k of the Penal Code is amended to read: 266k. (a) Upon the conviction of any person for a violation of Section 266h, 266i, or 266j, the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed five thousand dollars ($5,000). In setting the amount of the fine, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, whether the defendant derived any economic gain as the result of the crime, and the extent to which the victim suffered losses as a result of the crime. Every fine imposed and collected under this section 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 under Section 13837. (b) If the court orders a fine to be imposed pursuant to this section, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, the court may impose a fine as provided in the applicable sentencing rules. SEC. 135. Section 267 of the Penal Code is amended to read: 267. (a) Every person who takes away any other person under the age of 18 years from the father, mother, guardian, or other person having the legal charge of the other person, without their consent, for the purpose of prostitution, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000). (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 136. 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. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 137. Section 270 of the Penal Code is amended to read: 270. (a) If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both that fine and imprisonment. If a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of that adjudication and he or she then willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance or other remedial care for his or her child, this conduct is punishable by imprisonment in the county jail not exceeding one year or in a state prison for a determinate term of one year and one day, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) This section shall not be construed so as to relieve a parent from the criminal liability imposed by this section for that omission merely because the other parent of the child is legally entitled to the custody of the child nor because the other parent of the child or any other person or organization voluntarily or involuntarily furnishes necessary food, clothing, shelter or medical attendance, or other remedial care for the child, or attempts to do so. (d) Proof of abandonment or desertion of a child by a parent, or the omission by a parent to furnish necessary food, clothing, shelter or medical attendance or other remedial care for his or her child is prima facie evidence that the abandonment or desertion or omission to furnish necessary food, clothing, shelter or medical attendance or other remedial care is willful and without lawful excuse. (e) The court, in determining the ability of the parent to support his or her child, shall consider all income, including social insurance benefits and gifts. (f) The provisions of this section are applicable whether the parents of the child are or were ever married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child. A child conceived but not yet born is to be deemed an existing person insofar as this section is concerned. (g) The husband of a woman who bears a child as a result of artificial insemination shall be considered the father of that child for the purpose of this section, if he consented in writing to the artificial insemination. (h) If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute "other remedial care," as used in this section. SEC. 138. Section 271 of the Penal Code is amended to read: 271. (a) Every parent of any child under the age of 14 years, and every person to whom such a child has been confided for nurture, or education, who deserts that child in any place whatever with intent to abandon it, is punishable by imprisonment in the state prison or in the county jail not exceeding one year or by fine not exceeding one thousand dollars ($1,000) or by both. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 139. Section 271a of the Penal Code is amended to read: 271a. (a) Every person who knowingly and willfully abandons, or who, having ability so to do, fails or refuses to maintain his or her minor child under the age of 14 years, or who falsely, knowing the same to be false, represents to any manager, officer or agent of any orphan asylum or charitable institution for the care of orphans, that any child for whose admission into that asylum or institution application has been made is an orphan, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars ($1,000), or by both. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 140. Section 272 of the Penal Code is amended to read: 272. (a) (1) Every person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 18 years to come within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code or which act or omission contributes thereto, or any person who, by any act or omission, or by threats, commands, or persuasion, induces or endeavors to induce any person under the age of 18 years or any ward or dependent child of the juvenile court to fail or refuse to conform to a lawful order of the juvenile court, or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause that person to become or to remain a person within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail for not more than one year, or by both fine and imprisonment in a county jail, or may be released on probation for a period not exceeding five years. (2) For purposes of this subdivision, a parent or legal guardian to any person under the age of 18 years shall have the duty to exercise reasonable care, supervision, protection, and control over their minor child. (b) (1) An adult stranger who is 21 years of age or older, who knowingly contacts or communicates with a minor who is under 14 years of age, who knew or reasonably should have known that the minor is under 14 years of age, for the purpose of persuading and luring, or transporting, or attempting to persuade and lure, or transport, that minor away from the minor's home or from any location known by the minor's parent, legal guardian, or custodian, to be a place where the minor is located, for any purpose, without the express consent of the minor's parent or legal guardian, and with the intent to avoid the consent of the minor's parent or legal guardian, is guilty of an infraction or a misdemeanor, subject to subdivision (d) of Section 17. (2) This subdivision shall not apply in an emergency situation. (3) As used in this subdivision, the following terms are defined to mean: (A) "Emergency situation" means a situation where the minor is threatened with imminent bodily harm, emotional harm, or psychological harm. (B) "Contact" or "communication" includes, but is not limited to, the use of a telephone or the Internet, as defined in Section 17538 of the Business and Professions Code. (C) "Stranger" means 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, as defined in subdivision (e) of Section 6600 of the Welfare and Institutions Code. (D) "Express consent" means oral or written permission that is positive, direct, and unequivocal, requiring no inference or implication to supply its meaning. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) This section shall not be interpreted to criminalize acts of persons contacting minors within the scope and course of their employment, or status as a volunteer of a recognized civic or charitable organization. (e) This section is intended to protect minors and to help parents and legal guardians exercise reasonable care, supervision, protection, and control over minor children. SEC. 141. Section 273a of the Penal Code is amended to read: 273a. (a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor. (c) If a person is convicted of violating this section and probation is granted, the court shall require the following minimum conditions of probation: (1) A mandatory minimum period of probation of 48 months. (2) A criminal court protective order protecting the victim from further acts of violence or threats, and, if appropriate, residence exclusion or stay-away conditions. (3) (A) Successful completion of no less than one year of a child abuser's treatment counseling program approved by the probation department. The defendant shall be ordered to begin participation in the program immediately upon the grant of probation. The counseling program shall meet the criteria specified in Section 273.1. The defendant shall produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports. (B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant's changed circumstances, the court may reduce or waive the fees. (4) If the offense was committed while the defendant was under the influence of drugs or alcohol, the defendant shall abstain from the use of drugs or alcohol during the period of probation and shall be subject to random drug testing by his or her probation officer. (5) The court may waive any of the above minimum conditions of probation upon a finding that the condition would not be in the best interests of justice. The court shall state on the record its reasons for any waiver. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 142. Section 273ab of the Penal Code is amended to read: 273ab. (a) Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 143. Section 273d of the Penal Code is amended to read: 273d. (a) Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine. (b) Any person who is found guilty of violating subdivision (a) shall receive a four-year enhancement for a prior conviction of that offense provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction. (c) If a person is convicted of violating this section and probation is granted, the court shall require the following minimum conditions of probation: (1) A mandatory minimum period of probation of 36 months. (2) A criminal court protective order protecting the victim from further acts of violence or threats, and, if appropriate, residence exclusion or stay-away conditions. (3) (A) Successful completion of no less than one year of a child abuser's treatment counseling program. The defendant shall be ordered to begin participation in the program immediately upon the grant of probation. The counseling program shall meet the criteria specified in Section 273.1. The defendant shall produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports. (B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant's changed circumstances, the court may reduce or waive the fees. (4) If the offense was committed while the defendant was under the influence of drugs or alcohol, the defendant shall abstain from the use of drugs or alcohol during the period of probation and shall be subject to random drug testing by his or her probation officer. (5) The court may waive any of the above minimum conditions of probation upon a finding that the condition would not be in the best interests of justice. The court shall state on the record its reasons for any waiver. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 144. Section 273.4 of the Penal Code is amended to read: 273.4. (a) If the act constituting a felony violation of subdivision (a) of Section 273a was female genital mutilation, as defined in subdivision (b), the defendant shall be punished by an additional term of imprisonment in the state prison for one year, in addition and consecutive to the punishment prescribed by Section 273a. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) "Female genital mutilation" means the excision or infibulation of the labia majora, labia minora, clitoris, or vulva, performed for nonmedical purposes. (d) Nothing in this section shall preclude prosecution under Section 203, 205, or 206 or any other provision of law. SEC. 145. Section 273.5 of the Penal Code is amended to read: 273.5. (a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment. (b) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section. (c) As used in this section, "traumatic condition" means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force. (d) For the purpose of this section, a person shall be considered the father or mother of another person's child if the alleged male parent is presumed the natural father under Sections 7611 and 7612 of the Family Code. (e) (1) Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000). (2) Any person convicted of a violation of this section for acts occurring within seven years of a previous conviction under subdivision (e) of Section 243 shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to ten thousand dollars ($10,000), or by both that imprisonment and fine. (f) If probation is granted to any person convicted under subdivision (a), the court shall impose probation consistent with the provisions of Section 1203.097. (g) If probation is granted, or the execution or imposition of a sentence is suspended, for any defendant convicted under subdivision (a) who has been convicted of any prior offense specified in subdivision (e), the court shall impose one of the following conditions of probation: (1) If the defendant has suffered one prior conviction within the previous seven years for a violation of any offense specified in subdivision (e), it shall be a condition thereof, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 15 days. (2) If the defendant has suffered two or more prior convictions within the previous seven years for a violation of any offense specified in subdivision (e), it shall be a condition of probation, in addition to the provisions contained in Section 1203.097, that he or she be imprisoned in a county jail for not less than 60 days. (3) The court, upon a showing of good cause, may find that the mandatory imprisonment required by this subdivision shall not be imposed and shall state on the record its reasons for finding good cause. (h) If probation is granted upon conviction of a violation of subdivision (a), the conditions of probation may include, consistent with the terms of probation imposed pursuant to Section 1203.097, in lieu of a fine, one or both of the following requirements: (1) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097. (2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted. (i) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 146. Section 273.6 of the Penal Code is amended to read: 273.6. (a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment. (b) In the event of a violation of subdivision (a) which results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interest of justice and for reasons stated on the record, reduce or eliminate the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling. (c) Subdivisions (a) and (b) shall apply to the following court orders: (1) Any order issued pursuant to Section 6320 or 6389 of the Family Code. (2) An order excluding one party from the family dwelling or from the dwelling of the other. (3) An order enjoining a party from specified behavior which the court determined was necessary to effectuate the order described in subdivision (a). (4) Any order issued by another state that is recognized under Part 5 (commencing with Section 6400) of Division 10 of the Family Code. (d) A subsequent conviction for a violation of an order described in subdivision (a), occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or "a credible threat" of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or in the state prison. (e) In the event of a subsequent conviction for a violation of an order described in subdivision (a) for an act occurring within one year of a prior conviction for a violation of an order described in subdivision (a) that results in physical injury to a victim, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than six months nor more than one year, by both that fine and imprisonment, or by imprisonment in the state prison. However, if the person is imprisoned in a county jail for at least 30 days, the court may, in the interest of justice and for reasons stated in the record, reduce or eliminate the six-month minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling. (f) The prosecuting agency of each county shall have the primary responsibility for the enforcement of orders described in subdivisions (a), (b), (d), and (e). (g) (1) Every person who owns, possesses, purchases, or receives a firearm knowing he or she is prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, shall be punished under the provisions of subdivision (g) of Section 12021. (2) Every person subject to a protective order described in paragraph (1) shall not be prosecuted under this section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (f) of Section 527.9 of the Code of Civil Procedure, or subdivision (h) of Section 6389 of the Family Code. (h) If probation is granted upon conviction of a violation of subdivision (a), (b), (c), (d), or (e), the court shall impose probation consistent with the provisions of Section 1203.097, and the conditions of probation may include, in lieu of a fine, one or both of the following requirements: (1) That the defendant make payments to a battered women's shelter or to a shelter for abused elder persons or dependent adults, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097. (2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. (i) For any order to pay a fine, make payments to a battered women' s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted. (j) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 147. Section 273.65 of the Penal Code is amended to read: 273.65. (a) Any intentional and knowing violation of a protective order issued pursuant to Section 213.5, 304, or 362.4 of the Welfare and Institutions Code is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both the fine and imprisonment. (b) In the event of a violation of subdivision (a) which results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both the fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interests of justice and for reasons stated on the record, reduce or eliminate the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling. (c) Subdivisions (a) and (b) shall apply to the following court orders: (1) An order enjoining any party from molesting, attacking, striking, threatening, sexually assaulting, battering, harassing, contacting repeatedly by mail with the intent to harass, or disturbing the peace of the other party, or other named family and household members. (2) An order excluding one party from the family dwelling or from the dwelling of the other. (3) An order enjoining a party from specified behavior which the court determined was necessary to effectuate the order under subdivision (a). (d) A subsequent conviction for a violation of an order described in subdivision (a), occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or "a credible threat" of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or in the state prison. (e) In the event of a subsequent conviction for a violation of an order described in subdivision (a) for an act occurring within one year of a prior conviction for a violation of an order described in subdivision (a) which results in physical injury to the same victim, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than six months nor more than one year, by both that fine and imprisonment, or by imprisonment in the state prison. However, if the person is imprisoned in a county jail for at least 30 days, the court may, in the interests of justice and for reasons stated in the record, reduce or eliminate the six-month minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling. (f) The prosecuting agency of each county shall have the primary responsibility for the enforcement of orders issued pursuant to subdivisions (a), (b), (d), and (e). (g) The court may order a person convicted under this section to undergo counseling, and, if appropriate, to complete a batterer's treatment program. (h) If probation is granted upon conviction of a violation of subdivision (a), (b), or (c), the conditions of probation may include, in lieu of a fine, one or both of the following requirements: (1) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097. (2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. (i) For any order to pay a fine, make payments to a battered women' s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court ordered child support. (j) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 148. Section 278 of the Penal Code is amended to read: 278. (a) Every person who does not have a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 149. Section 278.5 of the Penal Code is amended to read: 278.5. (a) Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) Nothing contained in this section limits the court's contempt power. (d) A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a defense to a crime charged under this section. SEC. 150. Section 280 of the Penal Code is amended to read: 280. Every person who willfully causes or permits the removal or concealment of any child in violation of Section 8713, 8803, or 8910 of the Family Code shall be punished as follows: (a) By imprisonment in a county jail for not more than one year if the child is concealed within the county in which the adoption proceeding is pending or in which the child has been placed for adoption, or is removed from that county to a place within this state. (b) By imprisonment in the state prison, or by imprisonment in a county jail for not more than one year, if the child is removed from that county to a place outside of this state. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, as provided in the applicable sentencing rules. SEC. 151. Section 285 of the Penal Code is amended to read: 285. (a) Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 152. Section 286 of the Penal Code is amended to read: 286. (a) Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. (b) (1) Except as provided in Section 288, any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year. (2) Except as provided in Section 288, any person over the age of 21 years who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony. (c) (1) Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years. (2) Any person who commits an act of sodomy when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (3) Any person who commits an act of sodomy where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years. (d) Any person who, while voluntarily acting in concert with another person, either personally or aiding and abetting that other person, commits an act of sodomy when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person or where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for five, seven, or nine years. (e) Any person who participates in an act of sodomy with any person of any age while confined in any state prison, as defined in Section 4504, or in any local detention facility, as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for not more than one year. (f) Any person who commits an act of sodomy, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (1) Was unconscious or asleep. (2) Was not aware, knowing, perceiving, or cognizant that the act occurred. (3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (g) Except as provided in subdivision (h), a person who commits an act of sodomy, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. (h) Any person who commits an act of sodomy, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for not more than one year. Notwithstanding the existence of a conservatorship pursuant to the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (i) Any person who commits an act of sodomy, where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for three, six, or eight years. (j) Any person who commits an act of sodomy, where the victim submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for three, six, or eight years. (k) Any person who commits an act of sodomy, where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. () As used in subdivisions (c) and (d), "threatening to retaliate" means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury, or death. (m) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23. The court, however, shall take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (n) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 153. Section 286.5 of the Penal Code is amended to read: 286.5. Any person who sexually assaults any animal protected by Section 597f for the purpose of arousing or gratifying the sexual desire of the person is guilty of a misdemeanor or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, shall be punished as provided in the applicable sentencing rules. SEC. 154. Section 288 of the Penal Code is amended to read: 288. (a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (b) (1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (2) Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. (c) (1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child. (2) Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) In any arrest or prosecution under this section or Section 288.5, the peace officer, district attorney, and the court shall consider the needs of the child victim or dependent person and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or to prevent psychological harm to the dependent person victim resulting from participation in the court process. (f) Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section 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 pursuant to Section 13837. If the court orders a fine 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. (g) For purposes of paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c), the following definitions apply: (1) "Caretaker" means an owner, operator, administrator, employee, independent contractor, agent, or volunteer of any of the following public or private facilities when the facilities provide care for elder or dependent persons: (A) Twenty-four hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code. (B) Clinics. (C) Home health agencies. (D) Adult day health care centers. (E) Secondary schools that serve dependent persons and postsecondary educational institutions that serve dependent persons or elders. (F) Sheltered workshops. (G) Camps. (H) Community care facilities, as defined by Section 1402 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code. (I) Respite care facilities. (J) Foster homes. (K) Regional centers for persons with developmental disabilities. (L) A home health agency licensed in accordance with Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code. (M) An agency that supplies in-home supportive services. (N) Board and care facilities. (O) Any other protective or public assistance agency that provides health services or social services to elder or dependent persons, including, but not limited to, in-home supportive services, as defined in Section 14005.14 of the Welfare and Institutions Code. (P) Private residences. (2) "Board and care facilities" means licensed or unlicensed facilities that provide assistance with one or more of the following activities: (A) Bathing. (B) Dressing. (C) Grooming. (D) Medication storage. (E) Medical dispensation. (F) Money management. (3) "Dependent person" means any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. "Dependent person" includes any person who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code. (h) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) apply to the owners, operators, administrators, employees, independent contractors, agents, or volunteers working at these public or private facilities and only to the extent that the individuals personally commit, conspire, aid, abet, or facilitate any act prohibited by paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c). (i) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) do not apply to a caretaker who is a spouse of, or who is in an equivalent domestic relationship with, the dependent person under care. SEC. 155. Section 288a of the Penal Code is amended to read: 288a. (a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. (b) (1) Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. (2) Except as provided in Section 288, any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony. (c) (1) Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years. (2) Any person who commits an act of oral copulation when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (3) Any person who commits an act of oral copulation where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years. (d) Any person who, while voluntarily acting in concert with another person, either personally or by aiding and abetting that other person, commits an act of oral copulation (1) when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, or (2) where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, or (3) where the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison for five, seven, or nine years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime described under paragraph (3), that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (e) Any person who participates in an act of oral copulation while confined in any state prison, as defined in Section 4504 or in any local detention facility as defined in Section 6031.4, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. (f) Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (1) Was unconscious or asleep. (2) Was not aware, knowing, perceiving, or cognizant that the act occurred. (3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the oral copulation served a professional purpose when it served no professional purpose. (g) Except as provided in subdivision (h), any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in the state prison, for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. (h) Any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (i) Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. (j) Any person who commits an act of oral copulation, where the victim submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. (k) Any person who commits an act of oral copulation, where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. () Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (m) As used in subdivisions (c) and (d), "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (n) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. SEC. 156. Section 288.2 of the Penal Code is amended to read: 288.2. (a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony. (b) Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet, as defined in Section 17538 of the Business and Professions Code, or a commercial online service, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) It shall be a defense to any prosecution under this section that a parent or guardian committed the act charged in aid of legitimate sex education. (e) It shall be a defense in any prosecution under this section that the act charged was committed in aid of legitimate scientific or educational purposes. (f) It does not constitute a violation of this section for a telephone corporation, as defined in Section 234 of the Public Utilities Code, a cable television company franchised pursuant to Section 53066 of the Government Code, or any of its affiliates, an Internet service provider, or commercial online service provider, to carry, broadcast, or transmit messages described in this section or perform related activities in providing telephone, cable television, Internet, or commercial online services. SEC. 157. Section 288.3 of the Penal Code, as added by Section 7 of Chapter 337 of the Statutes of 2006, is amended 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) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) Nothing in this section shall preclude or prohibit prosecution under any other provision of law. SEC. 158. 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. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 159. Section 288.7 of the Penal Code is amended 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. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 160. Section 289 of the Penal Code is amended to read: 289. (a) (1) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (2) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years. (b) Except as provided in subdivision (c), any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (c) Any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act or causing the act to be committed and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent. (d) Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (1) Was unconscious or asleep. (2) Was not aware, knowing, perceiving, or cognizant that the act occurred. (3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (e) Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. (f) Any person who commits an act of sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. (g) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (h) Except as provided in Section 288, any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished by imprisonment in the state prison or in the county jail for a period of not more than one year. (i) Except as provided in Section 288, any person over the age of 21 years who participates in an act of sexual penetration with another person who is under 16 years of age shall be guilty of a felony. (j) Any person who participates in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years. (k) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (l) As used in this section: (1) "Sexual penetration" is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object. (2) "Foreign object, substance, instrument, or device" shall include any part of the body, except a sexual organ. (3) "Unknown object" shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body. (m) As used in subdivision (a), "threatening to retaliate" means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury or death. (n) As used in this section, "victim" includes any person who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or another person and who otherwise qualifies as a victim under the requirements of this section. SEC. 161. Section 289.5 of the Penal Code is amended to read: 289.5. (a) Every person who flees to this state with the intent to avoid prosecution for an offense which, if committed or attempted in this state, would have been punishable as one or more of the offenses described in subparagraph (A) of paragraph (2) of subdivision (a) of Section 290, and who has been charged with that offense under the laws of the jurisdiction from which the person fled, is guilty of a misdemeanor. (b) Every person who flees to this state with the intent to avoid custody or confinement imposed for conviction of an offense under the laws of the jurisdiction from which the person fled, which offense, if committed or attempted in this state, would have been punishable as one or more of the offenses described in subparagraph (A) of paragraph (2) of subdivision (a) of Section 290, is guilty of a misdemeanor. (c) No person shall be charged and prosecuted for an offense under this section unless the prosecutor has requested the other jurisdiction to extradite the person and the other jurisdiction has refused to do so. (d) Any person who is convicted of any felony sex offense described in subparagraph (A) of paragraph (2) of subdivision (a) of Section 290, that is committed after fleeing to this state under the circumstances described in subdivision (a) or (b) of this section, shall, in addition and consecutive to the punishment for that conviction, receive an additional term of two years' imprisonment. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 162. Section 289.6 of the Penal Code is amended to read: 289.6. (a) (1) An employee or officer of a public entity health facility, or an employee, officer, or agent of a private person or entity that provides a health facility or staff for a health facility under contract with a public entity, who engages in sexual activity with a consenting adult who is confined in a health facility is guilty of a public offense. As used in this paragraph, "health facility" means a health facility as defined in subdivisions (b), (e), (g), (h), and (j), and subparagraph (C) of paragraph (2) of subdivision (i) of Section 1250 of the Health and Safety Code, in which the victim has been confined involuntarily. (2) An employee or officer of a public entity detention facility, or an employee, officer, or agent of a private person or entity that provides a detention facility or staff for a detention facility, or person or agent of a public or private entity under contract with a detention facility, or a volunteer of a private or public entity detention facility, who engages in sexual activity with a consenting adult who is confined in a detention facility, is guilty of a public offense. (3) An employee with the Department of Corrections and Rehabilitation or a facility under contract with the department, who, during the course of his or her employment directly provides treatment, care, control, or supervision of inmates, wards, or parolees, and who engages in sexual activity with a consenting adult who is an inmate, ward, or parolee, is guilty of a public offense. (b) As used in this section, the term "public entity" means the state, federal government, a city, a county, a city and county, a joint county jail district, or any entity created as a result of a joint powers agreement between two or more public entities. (c) As used in this section, the term "detention facility" means: (1) A prison, jail, camp, or other correctional facility used for the confinement of adults or both adults and minors. (2) A building or facility used for the confinement of adults or adults and minors pursuant to a contract with a public entity. (3) A room that is used for holding persons for interviews, interrogations, or investigations and that is separate from a jail or located in the administrative area of a law enforcement facility. (4) A vehicle used to transport confined persons during their period of confinement. (5) A court holding facility located within or adjacent to a court building that is used for the confinement of persons for the purpose of court appearances. (d) As used in this section, "sexual activity" means: (1) Sexual intercourse. (2) Sodomy, as defined in subdivision (a) of Section 286. (3) Oral copulation, as defined in subdivision (a) of Section 288a. (4) Sexual penetration, as defined in subdivision (k) of Section 289. (5) The rubbing or touching of the breasts or sexual organs of another, or of oneself in the presence of and with knowledge of another, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of oneself or another. (e) Consent by a confined person or parolee to sexual activity proscribed by this section is not a defense to a criminal prosecution for violation of this section. (f) This section does not apply to sexual activity between consenting adults that occurs during an overnight conjugal visit that takes place pursuant to a court order or with the written approval of an authorized representative of the public entity that operates or contracts for the operation of the detention facility where the conjugal visit takes place, to physical contact or penetration made pursuant to a lawful search, or bona fide medical examinations or treatments, including clinical treatments. (g) Any violation of paragraph (1) of subdivision (a), or a violation of paragraph (2) or (3) of subdivision (a) as described in paragraph (5) of subdivision (d), is a misdemeanor. (h) Any violation of paragraph (2) or (3) of subdivision (a), as described in paragraph (1), (2), (3), or (4) of subdivision (d), shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison, or by a fine of not more than ten thousand dollars ($10,000) or by both that fine and imprisonment. (i) Any person previously convicted of a violation of this section shall, upon a subsequent violation, be guilty of a felony. (j) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (k) Anyone who is convicted of a felony violation of this section who is employed by a department, board, or authority within the department shall be terminated in accordance with the State Civil Service Act (Part 2 (commencing with Section 18500) of Title 2 of Division 5 of the Government Code). Anyone who has been convicted of a felony violation of this section shall not be eligible to be hired or reinstated by the department. SEC. 163. Section 311.1 of the Penal Code is amended to read: 311.1. (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, 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, or who offers to distribute, distributes, or exhibits to, or exchanges with, others, 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, shall be punished either by imprisonment in the county jail for up to one year, by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment, or by imprisonment in the state prison, by a fine not to exceed ten thousand dollars ($10,000), or by the fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) This section does not apply to the activities of law enforcement and prosecuting agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses. (d) This section does not apply to matter which depicts a child under the age of 18, which child is legally emancipated, including lawful conduct between spouses when one or both are under the age of 18. (e) 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 perform related activities in providing telephone services. SEC. 164. 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) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) 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. (g) 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. (h) 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. 165. Section 311.3 of the Penal Code is amended to read: 311.3. (a) A person is guilty of sexual exploitation of a child if he or she knowingly develops, duplicates, prints, or exchanges 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 that depicts a person under the age of 18 years engaged in an act of sexual conduct. (b) As used in this section, "sexual conduct" means any of the following: (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals. (2) Penetration of the vagina or rectum by any object. (3) Masturbation for the purpose of sexual stimulation of the viewer. (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer. (5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer. (6) Defecation or urination for the purpose of sexual stimulation of the viewer. (c) Subdivision (a) does not apply to the activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to lawful conduct between spouses. (d) Every person who violates subdivision (a) shall be punished by a fine of not more than two thousand dollars ($2,000) or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment. If the person has been previously convicted of a violation of subdivision (a) or any section of this chapter, he or she shall be punished by imprisonment in the state prison. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) The provisions of this section do not apply to an employee of a commercial film developer who is acting within the scope of his or her employment and in accordance with the instructions of his or her employer, provided that the employee has no financial interest in the commercial developer by which he or she is employed. (g) Subdivision (a) does not apply to matter that is unsolicited and is received without knowledge or consent through a facility, system, or network over which the person or entity has no control. SEC. 166. 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) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) (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. (f) 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. (g) 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. 167. Section 311.5 of the Penal Code is amended to read: 311.5. (a) Every person who writes, creates, or solicits the publication or distribution of advertising or other promotional material, or who in any manner promotes, the sale, distribution, or exhibition of matter represented or held out by him to be obscene, is guilty of a misdemeanor. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 168. Section 311.6 of the Penal Code is amended to read: 311.6. (a) Every person who knowingly engages or participates in, manages, produces, sponsors, presents or exhibits obscene live conduct to or before an assembly or audience consisting of at least one person or spectator in any public place or in any place exposed to public view, or in any place open to the public or to a segment thereof, whether or not an admission fee is charged, or whether or not attendance is conditioned upon the presentation of a membership card or other token, is guilty of a misdemeanor. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 169. Section 311.7 of the Penal Code is amended to read: 311.7. (a) Every person who, knowingly, as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, publication or other merchandise, requires that the purchaser or consignee receive any obscene matter or who denies or threatens to deny a franchise, revokes or threatens to revoke, or imposes any penalty, financial or otherwise, by reason of the failure of any person to accept obscene matter, or by reason of the return of such obscene matter, is guilty of a misdemeanor. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 170. 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. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 171. Section 311.10 of the Penal Code is amended to read: 311.10. (a) Any person who advertises for sale or distribution any obscene matter knowing that it 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 is punishable by imprisonment in the state prison for two, three, or four years, or in a county jail not exceeding one year, or by a fine not exceeding fifty thousand dollars ($50,000), or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) Subdivision (a) shall not apply to the activities of law enforcement and prosecution agencies in the investigation and prosecution of criminal offenses. SEC. 172. 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 felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment. (b) Every person who commits a violation of subdivision (a), and who has been previously convicted of a violation of this section, an offense described in subparagraph (A) of paragraph (2) of subdivision (a) of Section 290, or an attempt to commit any of the above-mentioned offenses, is guilty of a felony and shall be punished by imprisonment in the state prison 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) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. (e) 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. 173. Section 313.4 of the Penal Code is amended to read: 313.4. (a) Every person who violates Section 313.1, other than subdivision (e), is punishable by fine of not more than two thousand dollars ($2,000), by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. However, if the person has been previously convicted of a violation of Section 313.1, other than subdivision (e), or of any section of Chapter 7.5 (commencing with Section 311) of Title 9 of Part 1, the person shall be punished by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 174. Section 314 of the Penal Code is amended to read: 314. (a) Every person who willfully and lewdly does either of the following is guilty of a misdemeanor: (1) Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby. (2) Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts. (b) Every person who violates paragraph (1) of subdivision (a) 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, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year. (c) Upon the second and each subsequent conviction under paragraph (1) of subdivision (a), or upon a first conviction of that paragraph after a previous conviction under Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 175. Section 368 of the Penal Code is amended to read: 368. (a) The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf. (b) (1) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years. (2) If in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows: (A) Three years if the victim is under 70 years of age. (B) Five years if the victim is 70 years of age or older. (3) If in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows: (A) Five years if the victim is under 70 years of age. (B) Seven years if the victim is 70 years of age or older. (c) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. (d) Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding four hundred dollars ($400). (e) Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400), and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding four hundred dollars ($400). (f) Any person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment in the state prison for two, three, or four years. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (h) As used in this section, "elder" means any person who is 65 years of age or older. (i) As used in this section, "dependent adult" means any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. "Dependent adult" includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code. (j) As used in this section, "caretaker" means any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult. (k) Nothing in this section shall preclude prosecution under both this section and Section 187 or 12022.7 or any other provision of law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for any single offense, nor shall a person receive an additional term of imprisonment under both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for any single offense. (l) In any case in which a person is convicted of violating these provisions, the court may require him or her to receive appropriate counseling as a condition of probation. Any defendant ordered to be placed in a counseling program shall be responsible for paying the expense of his or her participation in the counseling program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of his or her inability to pay. SEC. 176. Section 380 of the Penal Code is amended to read: 380. (a) Every person who sells, dispenses or distributes toluene, or any substance or material containing toluene, to any person who is less than 18 years of age shall be guilty of a misdemeanor, and upon conviction shall be fined in a sum of not less than one thousand dollars ($1,000), nor more than two thousand five hundred dollars ($2,500), or by imprisonment for not less than six months nor more than one year. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) The court shall order the suspension of the business license, for a period of one year, of a person who knowingly violates any of the provisions of this section after having been previously convicted of a violation of this section unless the owner of such business license can demonstrate a good faith attempt to prevent illegal sales or deliveries by employees. The provisions of this subdivision shall become operative on July 1, 1980. (d) The provisions of this section shall apply to, but are not limited to, the sale or distribution of glue, cement, dope, paint thinners, paint, and any combination of hydrocarbons either alone or in combination with any substance or material including, but not limited to, paint, paint thinners, shellac thinners, and solvents which, when inhaled, ingested or breathed, can cause a person to be under the influence of, or intoxicated from, any such combination of hydrocarbons. This section shall not prohibit the sale of gasoline or other motor vehicle fuels to persons less than 18 years of age. (e) This section shall not apply to any glue or cement which has been certified by the State Department of Health Services as containing a substance which makes such glue or cement malodorous or causes such glue or cement to induce sneezing, nor shall this section apply where the glue or cement is sold, delivered, or given away simultaneously with or as part of a kit used for the construction of model airplanes, model boats, model automobiles, model trains, or other similar models or used for the assembly or creation of hobby craft items using such components as beads, tiles, tiffany glass, ceramics, clay, or other craft-related components. SEC. 177. Section 381 of the Penal Code is amended to read: 381. (a) Any person who possesses toluene or any substance or material containing toluene, including, but not limited to, glue, cement, dope, paint thinner, paint and any combination of hydrocarbons, either alone or in combination with any substance or material including but not limited to paint, paint thinner, shellac thinner, and solvents, with the intent to breathe, inhale or ingest for the purpose of causing a condition of intoxication, elation, euphoria, dizziness, stupefaction, or dulling of the senses or for the purpose of, in any manner, changing, distorting or disturbing the audio, visual, or mental processes, or who knowingly and with the intent to do so is under the influence of toluene or any material containing toluene, or any combination of hydrocarbons is guilty of a misdemeanor. (b) Any person who possesses any substance or material, which the State Department of Health Services has determined by regulations adopted pursuant to the Administrative Procedures Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) has toxic qualities similar to toluene, with the intent to breathe, inhale, or ingest for the purpose of causing a condition of intoxication, elation, euphoria, dizziness, excitement, irrational behavior, exhilaration, satisfaction, stupefaction, or dulling of the senses or for the purpose of, in any manner, changing, distorting or disturbing the audio, visual, or mental processes, or who is under the influence of such substance or material is guilty of a misdemeanor. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 178. Section 381b of the Penal Code is amended to read: 381b. (a) Any person who possesses nitrous oxide or any substance containing nitrous oxide, with the intent to breathe, inhale, or ingest for the purpose of causing a condition of intoxication, elation, euphoria, dizziness, stupefaction, or dulling of the senses or for the purpose of, in any manner, changing, distorting, or disturbing the audio, visual, or mental processes, or who knowingly and with the intent to do so is under the influence of nitrous oxide or any material containing nitrous oxide is guilty of a misdemeanor. This section shall not apply to any person who is under the influence of nitrous oxide or any material containing nitrous oxide pursuant to an administration for the purpose of medical, surgical, or dental care by a person duly licensed to administer such an agent. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 179. Section 422 of the Penal Code is amended to read: 422. (a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) (1) For the purposes of this section, "immediate family" means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household. (2) "Electronic communication device" includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code. SEC. 180. Section 422.75 of the Penal Code is amended to read: 422.75. (a) Except in the case of a person punished under Section 422.7, a person who commits a felony that is a hate crime or attempts to commit a felony that is a hate crime, shall receive an additional term of one, two, or three years in the state prison, at the court's discretion. (b) Except in the case of a person punished under Section 422.7 or subdivision (a) of this section, any person who commits a felony that is a hate crime, or attempts to commit a felony that is a hate crime, and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person, shall receive an additional two, three, or four years in the state prison, at the court's discretion. (c) For the purpose of imposing an additional term under subdivision (a) or (b), it shall be a factor in aggravation that the defendant personally used a firearm in the commission of the offense. Nothing in this subdivision shall preclude a court from also imposing a sentence enhancement pursuant to Section 12022.5, 12022.53, or 12022.55, or any other law. (d) A person who is punished pursuant to this section also shall receive an additional term of one year in the state prison for each prior felony conviction on charges brought and tried separately in which it was found by the trier of fact or admitted by the defendant that the crime was a hate crime. This additional term shall only apply where a sentence enhancement is not imposed pursuant to Section 667 or 667.5. (e) Any additional term authorized by this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (f) Any additional term imposed pursuant to this section shall be in addition to any other punishment provided by law. (g) Notwithstanding any other provision of law, the court may strike any additional term imposed by this section if the court determines that there are mitigating circumstances and states on the record the reasons for striking the additional punishment. (h) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 181. Section 451 of the Penal Code is amended to read: 451. A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. (a) Arson that causes great bodily injury is a felony punishable by imprisonment in the state prison for five, seven, or nine years. (b) Arson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years. (c) Arson of a structure or forest land is a felony punishable by imprisonment in the state prison for two, four, or six years. (d) Arson of property is a felony punishable by imprisonment in the state prison for 16 months, two, or three years. For purposes of thisparagraphsubdivision , arson of property does not include one burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person's structure, forest land, or property. (e) In the case of any person convicted of violating this section while confined in a state prison, prison road camp, prison forestry camp, or other prison camp or prison farm, or while confined in a county jail while serving a term of imprisonment for a felony or misdemeanor conviction, any sentence imposed shall be consecutive to the sentence for which the person was then confined. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 182. Section 451.1 of the Penal Code is amended to read: 451.1. (a) Notwithstanding any other law, any person who is convicted of a felony violation of Section 451 shall be punished by a three-, four-, or five-year enhancement if one or more of the following circumstances is found to be true: (1) The defendant has been previously convicted of a felony violation of Section 451 or 452. (2) A firefighter, peace officer, or other emergency personnel suffered great bodily injury as a result of the offense. The additional term provided by this subdivision shall be imposed whenever applicable, including any instance in which there is a violation of subdivision (a) of Section 451. (3) The defendant proximately caused great bodily injury to more than one victim in any single violation of Section 451. The additional term provided by this subdivision shall be imposed whenever applicable, including any instance in which there is a violation of subdivision (a) of Section 451. (4) The defendant proximately caused multiple structures to burn in any single violation of Section 451. (5) The defendant committed arson as described in subdivision (a), (b), or (c) of Section 451 and the arson was caused by use of a device designed to accelerate the fire or delay ignition. (b) The additional term specified in subdivision (a) shall not be imposed unless the existence of any fact required under this section 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. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 183. Section 451.5 of the Penal Code is amended to read: 451.5. (a) Any person who willfully, maliciously, deliberately, with premeditation, and with intent to cause injury to one or more persons or to cause damage to property under circumstances likely to produce injury to one or more persons or to cause damage to one or more structures or inhabited dwellings, sets fire to, burns, or causes to be burned, or aids, counsels, or procures the burning of any residence, structure, forest land, or property is guilty of aggravated arson if one or more of the following aggravating factors exists: (1) The defendant has been previously convicted of arson on one or more occasions within the past 10 years. (2) (A) The fire caused property damage and other losses in excess of five million six hundred fifty thousand dollars ($5,650,000). (B) In calculating the total amount of property damage and other losses under subparagraph (A), the court shall consider the cost of fire suppression. It is the intent of the Legislature that this paragraph be reviewed within five years to consider the effects of inflation on the dollar amount stated herein. For that reason, this paragraph shall remain in effect until January 1, 2010, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 2010, deletes or extends that date. (3) The fire caused damage to, or the destruction of, five or more inhabited structures. (b) Any person who is convicted under subdivision (a) shall be punished by imprisonment in the state prison for 10 years to life. (c) Any person who is sentenced under subdivision (b) shall not be eligible for release on parole until 10 calendar years have elapsed. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 184. Section 452 of the Penal Code is amended to read: 452. A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property. (a) Unlawfully causing a fire that causes great bodily injury is a felony punishable by imprisonment in the state prison for two, four or six years, or by imprisonment in the county jail for not more than one year, or by a fine, or by both that imprisonment and fine. (b) Unlawfully causing a fire that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for two, three or four years, or by imprisonment in the county jail for not more than one year, or by a fine, or by both that imprisonment and fine. (c) Unlawfully causing a fire of a structure or forest land is a felony punishable by imprisonment in the state prison for 16 months, two or three years, or by imprisonment in the county jail for not more than six months, or by a fine, or by both that imprisonment and fine. (d) Unlawfully causing a fire of property is a misdemeanor. For purposes of this paragraph, unlawfully causing a fire of property does not include one burning or causing to be burned his own personal property unless there is injury to another person or to another person's structure, forest land or property. (e) In the case of any person convicted of violating this section while confined in a state prison, prison road camp, prison forestry camp, or other prison camp or prison farm, or while confined in a county jail while serving a term of imprisonment for a felony or misdemeanor conviction, any sentence imposed shall be consecutive to the sentence for which the person was then confined. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 185. Section 452.1 of the Penal Code is amended to read: 452.1. (a) Notwithstanding any other law, any person who is convicted of a felony violation of Section 452 shall be punished by a one-, two-, or three-year enhancement for each of the following circumstances that is found to be true: (1) The defendant has been previously convicted of a felony violation of Section 451 or 452. (2) A firefighter, peace officer, or other emergency personnel suffered great bodily injury as a result of the offense. The additional term provided by this subdivision shall be imposed whenever applicable, including any instance in which there is a violation of subdivision (a) of Section 452. (3) The defendant proximately caused great bodily injury to more than one victim in any single violation of Section 452. The additional term provided by this subdivision shall be imposed whenever applicable, including any instance in which there is a violation of subdivision (a) of Section 452. (4) The defendant proximately caused multiple structures to burn in any single violation of Section 452. (b) The additional term specified in subdivision (a) of Section 452.1 shall not be imposed unless the existence of any fact required under this section 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. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 186. Section 453 of the Penal Code is amended to read: 453. (a) Every person who possesses, manufactures, or disposes of any flammable, or combustible material or substance, or any incendiary device in an arrangement or preparation, with intent to willfully and maliciously use this material, substance, or device to set fire to or burn any structure, forest land, or property, shall be punished by imprisonment in the state prison, or in a county jail, not exceeding one year. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) For the purposes of this section: (1) "Disposes of" means to give, give away, loan, offer, offer for sale, sell, or transfer. (2) "Incendiary device" means a device that is constructed or designed to start an incendiary fire by remote, delayed, or instant means, but no device commercially manufactured primarily for the purpose of illumination shall be deemed to be an incendiary device for the purposes of this section. (3) "Incendiary fire" means a fire that is deliberately ignited under circumstances in which a person knows that the fire should not be ignited. (d) Subdivision (a) does not prohibit the authorized use or possession of any material, substance or device described therein by a member of the armed forces of the United States or by firemen, police officers, peace officers, or law enforcement officers authorized by the properly constituted authorities; nor does that subdivision prohibit the use or possession of any material, substance or device described therein when used solely for scientific research or educational purposes, or for disposal of brush under permit as provided for in Section 4494 of the Public Resources Code, or for any other lawful burning. Subdivision (a) does not prohibit the manufacture or disposal of an incendiary device for the parties or purposes described in this subdivision. SEC. 187. Section 454 of the Penal Code is amended to read: 454. (a) Every person who violates Section 451 or 452 during and within an area of any of the following, when proclaimed by the Governor, shall be punished by imprisonment in the state prison, as specified in subdivision (b): (1) A state of insurrection pursuant to Section 143 of the Military and Veterans Code. (2) A state of emergency pursuant to Section 8625 of the Government Code. (b) Any person who is described in subdivision (a) and who violates subdivision (a), (b), or (c) of Section 451 shall be punished by imprisonment in the state prison for five, seven, or nine years. All other persons who are described in subdivision (a) shall be punished by imprisonment in the state prison for three, five, or seven years. (c) Probation shall not be granted to any person who is convicted of violating this section, except in unusual cases where the interest of justice would best be served. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 188. Section 455 of the Penal Code is amended to read: 455. (a) Any person who willfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the burning of any structure, forest land or property, or who commits any act preliminary thereto, or in furtherance thereof, is punishable by imprisonment in the state prison for 16 months, two or three years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) The placing or distributing of any flammable, explosive or combustible material or substance, or any device in or about any structure, forest land or property in an arrangement or preparation with intent to eventually willfully and maliciously set fire to or burn same, or to procure the setting fire to or burning of the same shall constitute an attempt to burn that structure, forest land or property, for purposes of this section. SEC. 189. Section 456 of the Penal Code is amended to read: 456. (a) Upon conviction for any felony violation of this chapter, in addition to the penalty prescribed, the court may impose a fine not to exceed fifty thousand dollars ($50,000) unless a greater amount is provided by law. (b) When any person is convicted of a violation of any provision of this chapter and the reason he committed the violation was for pecuniary gain, in addition to the penalty prescribed and instead of the fine provided in subdivision (a), the court may impose a fine of twice the anticipated or actual gross gain. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, the court may impose a fine as provided in the applicable sentencing rules. SEC. 190. Section 461 of the Penal Code is amended to read: 461. (a) Burglary is punishable as follows: (1) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. (2) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, burglary shall be punished as provided in the applicable sentencing rules. SEC. 191. Section 462 of the Penal Code is amended to read: 462. (a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach as defined in Section 635 of the Vehicle Code, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or the inhabited portion of any other building. (b) If the court grants probation under subdivision (a), it shall specify the reason or reasons for that order on the court record. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 192. Section 462.5 of the Penal Code is amended to read: 462.5. (a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a felony custodial institution burglary. In any case in which a person is convicted of a misdemeanor custodial institution burglary, such person shall be confined in the county jail for not less than 90 days nor more than one year except in unusual cases where the interests of justice would best be served by the granting of probation. (b) As used in this section, "custodial institution burglary" shall mean a violation of Section 459 on the grounds of any jail or correctional institution with the intent to steal items to use or convert for use as weapons, escape tools, or intoxicating drugs. (c) If the court grants probation under subdivision (a), it shall specify the reason or reasons for such order on the court record. (d) Any person convicted of custodial institution burglary shall serve his or her sentence, including enhancements, consecutive to any other sentence in effect or pending. The felony sentence shall be calculated under Section 1170.1. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 193. Section 463 of the Penal Code is amended to read: 463. (a) Every person who violates Section 459, punishable as a second-degree burglary pursuant tosubdivision 2paragraph (2) of subdivision (a) of Section 461, during and within an affected county in a "state of emergency" or a "local emergency" resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of the crime of looting, punishable by imprisonment in a county jail for one year or in the state prison. Any person convicted under this subdivision who is eligible for probation and who is granted probation shall, as a condition thereof, be confined in a county jail for at least 180 days, except that the court may, in the case where the interest of justice would best be served, reduce or eliminate that mandatory jail sentence, if the court specifies on the record and enters into the minutes the circumstances indicating that the interest of justice would best be served by that disposition. In addition to whatever custody is ordered, the court, in its discretion, may require any person granted probation following conviction under this subdivision to serve up to 240 hours of community service in any program deemed appropriate by the court, including any program created to rebuild the community. For purposes of this section, the fact that the structure entered has been damaged by the earthquake, fire, flood, or other natural or manmade disaster shall not, in and of itself, preclude conviction. (b) Every person who commits the crime of grand theft, as defined in Section 487, except grand theft of a firearm, during and within an affected county in a "state of emergency" or a "local emergency" resulting from an earthquake, fire, flood, riot, or other natural or unnatural disaster shall be guilty of the crime of looting, punishable by imprisonment in a county jail for one year or in the state prison. Every person who commits the crime of grand theft of a firearm, as defined in Section 487, during and within an affected county in a "state of emergency" or a "local emergency" resulting from an earthquake, fire, flood, riot, or other natural or unnatural disaster shall be guilty of the crime of looting, punishable by imprisonment in the state prison, as set forth in subdivision (a) of Section 489. Any person convicted under this subdivision who is eligible for probation and who is granted probation shall, as a condition thereof, be confined in a county jail for at least 180 days, except that the court may, in the case where the interest of justice would best be served, reduce or eliminate that mandatory jail sentence, if the court specifies on the record and enters into the minutes the circumstances indicating that the interest of justice would best be served by that disposition. In addition to whatever custody is ordered, the court, in its discretion, may require any person granted probation following conviction under this subdivision to serve up to 160 hours of community service in any program deemed appropriate by the court, including any program created to rebuild the community. (c) Every person who commits the crime of petty theft, as defined in Section 488, during and within an affected county in a "state of emergency" or a "local emergency" resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of a misdemeanor, punishable by imprisonment in a county jail for six months. Any person convicted under this subdivision who is eligible for probation and who is granted probation shall, as a condition thereof, be confined in a county jail for at least 90 days, except that the court may, in the case where the interest of justice would best be served, reduce or eliminate that mandatory minimum jail sentence, if the court specifies on the record and enters into the minutes the circumstances indicating that the interest of justice would best be served by that disposition. In addition to whatever custody is ordered, the court, in its discretion, may require any person granted probation following conviction under this subdivision to serve up to 80 hours of community service in any program deemed appropriate by the court, including any program created to rebuild the community. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) (1) For purposes of this section, "state of emergency" means conditions which, by reason of their magnitude, are, or are likely to be, beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat. (2) For purposes of this section, "local emergency" means conditions which, by reason of their magnitude, are, or are likely to be, beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat. (3) For purposes of this section, a "state of emergency" shall exist from the time of the proclamation of the condition of the emergency until terminated pursuant to Section 8629 of the Government Code. For purposes of this section only, a "local emergency" shall exist from the time of the proclamation of the condition of the emergency by the local governing body until terminated pursuant to Section 8630 of the Government Code. (4) Consensual entry into a commercial structure with the intent to commit a violation of Section 470, 476, 476a, 484f, or 484g of the Penal Code, shall not be charged as a violation under this section. SEC. 194. Section 473 of the Penal Code is amended to read: 473. Forgery is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, is punishable as provided in the applicable sentencing rules. SEC. 195. Section 474 of the Penal Code is amended to read: 474. (a) Every person who knowingly and willfully sends by telegraph or telephone to any person a false or forged message, purporting to be from a telegraph or telephone office, or from any other person, or who willfully delivers or causes to be delivered to any person a message falsely purporting to have been received by telegraph or telephone, or who furnishes, or conspires to furnish, or causes to be furnished to any agent, operator, or employee, to be sent by telegraph or telephone, or to be delivered, a message, knowing the same to be false or forged, with the intent to deceive, injure, or defraud another, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year, or by fine not exceeding ten thousand dollars ($10,000), or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 196. Section 476a of the Penal Code is amended to read: 476a. (a) Any person who for himself or as the agent or representative of another or as an officer of a corporation, willfully, with intent to defraud, makes or draws or utters or delivers any check, or draft or order upon any bank or depositary, or person, or firm, or corporation, for the payment of money, knowing at the time of that making, drawing, uttering, or delivering that the maker or drawer or the corporation has not sufficient funds in, or credit with the bank or depositary, or person, or firm, or corporation, for the payment of that check, draft, or order and all other checks, drafts, or orders upon funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in the county jail for not more than one year, or in the state prison. (b) However, if the total amount of all the checks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed two hundred dollars ($200), the offense is punishable only by imprisonment in the county jail for not more than one year. This subdivision shall not apply if the defendant has previously been convicted of a violation of Section 470, 475, or 476, or of this section, or of the crime of petty theft where the defendant's offense was also a violation of Section 470, 475, or 476 or of this section, or if the defendant has previously been convicted of any offense under the laws of any other state or of the United States which, if committed in this state, would have been punishable as a violation of Section 470, 475 or 476 or of this section, or if he has been convicted of the crime of petty theft in a case in which, if defendant's offense had been committed in this state, it would have been a violation also of Section 470, 475, or 476, or of this section. (c) Where the check, draft, or order is protested on the ground of insufficiency of funds or credit, the notice of protest shall be admissible as proof of presentation, nonpayment and protest and shall be presumptive evidence of knowledge of insufficiency of funds or credit with the bank or depositary, or person, or firm, or corporation. (d) In any prosecution under this section involving two or more checks, drafts, or orders, it shall constitute prima facie evidence of the identity of the drawer of a check, draft, or order if both of the following occur: (1) When the payee accepts the check, draft or order from the drawer he or she obtains from the drawer the following information: name and residence of the drawer, business or mailing address, either a valid driver's license number or Department of Motor Vehicles identification card number, and the drawer's home or work phone number or place of employment. That information may be recorded on the check, draft, or order itself or may be retained on file by the payee and referred to on the check, draft, or order by identifying number or other similar means. (2) The person receiving the check, draft, or order witnesses the drawer's signature or endorsement, and, as evidence of that, initials the check, draft, or order at the time of receipt. (e) The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank or depositary or person or firm or corporation for the payment of such check, draft or order. (f) If any of the preceding paragraphs, or parts thereof, shall be found unconstitutional or invalid, the remainder of this section shall not thereby be invalidated, but shall remain in full force and effect. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (h) A sheriff's department, police department, or other law enforcement agency may collect a fee from the defendant for investigation, collection, and processing of checks referred to their agency for investigation of alleged violations of this section or Section 476. The amount of the fee shall not exceed twenty-five dollars ($25) for each bad check in addition to the amount of any bank charges incurred by the victim as a result of the alleged offense. If the sheriff's department, police department, or other law enforcement agency collects any fee for bank charges incurred by the victim pursuant to this section, that fee shall be paid to the victim for any bank fees the victim may have been assessed. In no event shall reimbursement of the bank charge to the victim pursuant to this section exceed ten dollars ($10) per check. SEC. 197. Section 478 of the Penal Code is amended to read: 478. Counterfeiting is punishable by imprisonment in the state prison for two, three or four years or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, is punishable as provided in the applicable sentencing rules. SEC. 198. Section 479 of the Penal Code is amended to read: 479. (a) Every person who has in his possession, or receives for any other person, any counterfeit gold or silver coin of the species current in this state, or any counterfeit gold dust, gold or silver bullion or bars, lumps, pieces or nuggets, with the intention to sell, utter, put off or pass the same, or permits, causes or procures the same to be sold, uttered or passed, with intention to defraud any person, knowing the same to be counterfeit, is punishable by imprisonment in the state prison for two, three or four years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 199. Section 487 of the Penal Code is amended to read: 487. Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400), except as provided in subdivision (b). (b) Notwithstanding subdivision (a), grand theft is committed in any of the following cases: (1) (A) When domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops are taken of a value exceeding one hundred dollars ($100). (B) For the purposes of establishing that the value of avocados or citrus fruit under this paragraph exceeds one hundred dollars ($100), that value may be shown by the presentation of credible evidence which establishes that on the day of the theft avocados or citrus fruit of the same variety and weight exceeded one hundred dollars ($100) in wholesale value. (2) When fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products are taken from a commercial or research operation which is producing that product, of a value exceeding one hundred dollars ($100). (3) Where the money, labor, or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates four hundred dollars ($400) or more in any 12 consecutive month period. (c) When the property is taken from the person of another. (d) When the property taken is any of the following: (1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig. (2) A firearm. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 200. Section 487a of the Penal Code is amended to read: 487a. (a) Every person who feloniously steals, takes, transports, or carries the carcass of any bovine, caprine, equine, ovine, or suine animal or of any mule, jack or jenny, which is the personal property of another, or who fraudulently appropriates property which has been entrusted to him, is guilty of grand theft. (b) Every person who shall feloniously steal, take, transport, or carry any portion of the carcass of any bovine, caprine, equine, ovine, or suine animal or of any mule, jack, or jenny, which has been killed without the consent of the owner thereof, is guilty of grand theft. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 201. Section 487b of the Penal Code is amended to read: 487b. (a) Every person who converts real estate of the value of one hundred dollars ($100) or more into personal property by severance from the realty of another, and with felonious intent to do so, steals, takes, and carries away that property is guilty of grand theft and is punishable by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 202. Section 487c of the Penal Code is amended to read: 487c. (a) Every person who converts real estate of the value of less than one hundred dollars ($100) into personal property by severance from the realty of another, and with felonious intent to do so steals, takes, and carries away that property is guilty of petty theft and is punishable by imprisonment in the county jail for not more than one year, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 203. Section 487d of the Penal Code is amended to read: 487d. (a) Every person who feloniously steals, takes, and carries away, or attempts to take, steal, and carry from any mining claim, tunnel, sluice, undercurrent, riffle box, or sulfurate machine, another's gold dust, amalgam, or quicksilver is guilty of grand theft and is punishable by imprisonment in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 204. Section 487e of the Penal Code is amended to read: 487e. (a) Every person who feloniously steals, takes, or carries away a dog of another which is of a value exceeding four hundred dollars ($400) is guilty of grand theft. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 205. Section 487f of the Penal Code is amended to read: 487f. (a) Every person who feloniously steals, takes, or carries away a dog of another which is of a value not exceeding four hundred dollars ($400) is guilty of petty theft. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 206. Section 487g of the Penal Code is amended to read: 487g. (a) Every person who steals or maliciously takes or carries away any animal of another for purposes of sale, medical research, slaughter, or other commercial use, or who knowingly, by any false representation or pretense, defrauds another person of any animal for purposes of sale, medical research, slaughter, or other commercial use is guilty of a public offense punishable by imprisonment in a county jail not exceeding one year or in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 207. Section 487h of the Penal Code is amended to read: 487h. (a) Every person who steals, takes, or carries away cargo of another, when the cargo taken is of a value exceeding four hundred dollars ($400), except as provided in Sections 487, 487a, and 487d, is guilty of grand theft. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) For the purposes of this section, "cargo" means any goods, wares, products, or manufactured merchandise that has been loaded into a trailer, railcar, or cargo container, awaiting or in transit. (d) This section shall remain in effect only until January 1, 2010, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2010, deletes or extends that date. SEC. 208. Section 488 of the Penal Code is amended to read: 488. Theft in other cases is petty theft, unless the California Sentencing Commission adopts a sentencing rule that provides otherwise, in which case theft shall be punished as provided in the proposed applicable sentencing rule, upon the operative date of that rule. SEC. 209. Section 489 of the Penal Code is amended to read: 489. Grand theft is punishable as follows: (a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, 2, or 3 years. (b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, grand theft shall be punished as provided in the applicable sentencing rules. SEC. 210. Section 490 of the Penal Code is amended to read: 490. Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, petty theft shall be punished as provided in the applicable sentencing rules. SEC. 211. Section 490.1 of the Penal Code is amended to read: 490.1. (a) Petty theft, where the value of the money, labor, real or personal property taken is of a value which does not exceed fifty dollars ($50), may be charged as a misdemeanor or an infraction, at the discretion of the prosecutor, provided that the person charged with the offense has no other theft or theft-related conviction. (b) Any offense charged as an infraction under this section shall be subject to the provisions of subdivision (d) of Section 17 and Sections 19.6 and 19.7. (c) A violation which is an infraction under this section is punishable by a fine not exceeding two hundred fifty dollars ($250). (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, petty theft may be charged and shall be punished as provided in the applicable sentencing rules. SEC. 212. Section 490.5 of the Penal Code is amended to read: 490.5. (a) (1) Upon a first conviction for petty theft involving merchandise taken from a merchant's premises or a book or other library materials taken from a library facility, a person shall be punished by a mandatory fine of not less than fifty dollars ($50) and not more than one thousand dollars ($1,000) for each violation; and may also be punished by imprisonment in the county jail, not exceeding six months, or both that fine and imprisonment. (2) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (b) When an unemancipated minor's willful conduct would constitute petty theft involving merchandise taken from a merchant's premises or a book or other library materials taken from a library facility, any merchant or library facility who has been injured by that conduct may bring a civil action against the parent or legal guardian having control and custody of the minor. For the purposes of those actions, the misconduct of the unemancipated minor shall be imputed to the parent or legal guardian having control and custody of the minor. The parent or legal guardian having control or custody of an unemancipated minor whose conduct violates this subdivision shall be jointly and severally liable with the minor to a merchant or to a library facility for damages of not less than fifty dollars ($50) nor more than five hundred dollars ($500), plus costs. In addition to the foregoing damages, the parent or legal guardian shall be jointly and severally liable with the minor to the merchant for the retail value of the merchandise if it is not recovered in a merchantable condition, or to a library facility for the fair market value of its book or other library materials. Recovery of these damages may be had in addition to, and is not limited by, any other provision of law which limits the liability of a parent or legal guardian for the tortious conduct of a minor. An action for recovery of damages, pursuant to this subdivision, may be brought in small claims court if the total damages do not exceed the jurisdictional limit of that court, or in any other appropriate court; however, total damages, including the value of the merchandise or book or other library materials, shall not exceed five hundred dollars ($500) for each action brought under this section. The provisions of this subdivision are in addition to other civil remedies and do not limit merchants or other persons to elect to pursue other civil remedies, except that the provisions of Section 1714.1 of the Civil Code shall not apply herein. (c) When an adult or emancipated minor has unlawfully taken merchandise from a merchant's premises, or a book or other library materials from a library facility, the adult or emancipated minor shall be liable to the merchant or library facility for damages of not less than fifty dollars ($50) nor more than five hundred dollars ($500), plus costs. In addition to the foregoing damages, the adult or emancipated minor shall be liable to the merchant for the retail value of the merchandise if it is not recovered in merchantable condition, or to a library facility for the fair market value of its book or other library materials. An action for recovery of damages, pursuant to this subdivision, may be brought in small claims court if the total damages do not exceed the jurisdictional limit of that court, or in any other appropriate court. The provisions of this subdivision are in addition to other civil remedies and do not limit merchants or other persons to elect to pursue other civil remedies. (d) In lieu of the fines prescribed by subdivision (a), any person may be required to perform public services designated by the court, however, no person shall be required to perform less than the number of hours of public service necessary to satisfy the fine assessed by the court as provided by subdivision (a) at the minimum wage prevailing in the state at the time of sentencing. (e) All fines collected under this section shall be collected and distributed in accordance with Sections 1463 and 1463.1 of the Penal Code. However, a county may, by a majority vote of the members of its board of supervisors, allocate any amount up to, but not exceeding 50 percent of such fines to the county superintendent of schools for allocation to local school districts. The fines allocated shall be administered by the county superintendent of schools to finance public school programs which provide counseling or other educational services designed to discourage shoplifting, theft, and burglary. Subject to rules and regulations as may be adopted by the Superintendent of Public Instruction, each county superintendent of schools shall allocate those funds to school districts within the county which submit project applications designed to further the educational purposes of this section. The costs of administration of this section by each county superintendent of schools shall be paid from the funds allocated to the county superintendent of schools. (f) (1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises. A theater owner may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the theater owner has probable cause to believe the person to be detained is attempting to operate a video recording device within the premises of a motion picture theater without the authority of the owner of the theater. A person employed by a library facility may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the person employed by a library facility has probable cause to believe the person to be detained is attempting to unlawfully remove or has unlawfully removed books or library materials from the premises of the library facility. (2) In making the detention, a merchant, theater owner, or person employed by a library facility may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property. (3) During the period of detention, any items which a merchant or theater owner, or any items which a person employed by a library facility has probable cause to believe are unlawfully taken from the premises of the merchant or library facility, or recorded on theater premises, and which are in plain view may be examined by the merchant, theater owner, or person employed by a library facility for the purposes of ascertaining the ownership thereof. (4) A merchant, theater owner, a person employed by a library facility, or an agent thereof, having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises, or was attempting to operate a video recording device within the premises of a motion picture theater without the authority of the owner of the theater, may request the person detained to voluntarily surrender the item or recording. If the person detained refuses to surrender the recording or item of which there is probable cause to believe has been recorded on or unlawfully taken from the premises, or attempted to be recorded or unlawfully taken from the premises, a limited and reasonable search may be conducted by those authorized to make the detention in order to recover the item. Only packages, shopping bags, handbags or other property in the immediate possession of the person detained, but not including any clothing worn by the person, may be searched pursuant to this subdivision. Upon surrender or discovery of the item, the person detained may also be requested, but may not be required, to provide adequate proof of his or her true identity. (5) If any person admitted to a theater in which a motion picture is to be or is being exhibited, refuses or fails to give or surrender possession or to cease operation of any video recording device that the person has brought into or attempts to bring into that theater, then a theater owner has the right to refuse admission to that person or request that the person leave the premises and shall thereupon offer to refund and, unless that offer is refused, refund to that person the price paid by that person for admission to that theater. If the person thereafter refuses to leave the theater or cease operation of the video recording device, then the person shall be deemed to be intentionally interfering with and obstructing those attempting to carry on a lawful business within the meaning of Section 602.1. (6) A peace officer who accepts custody of a person arrested for an offense contained in this section may, subsequent to the arrest, search the person arrested and his or her immediate possessions for any item or items alleged to have been taken. (7) In any civil action brought by any person resulting from a detention or arrest by a merchant, it shall be a defense to such action that the merchant detaining or arresting such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances. In any civil action brought by any person resulting from a detention or arrest by a theater owner or person employed by a library facility, it shall be a defense to that action that the theater owner or person employed by a library facility detaining or arresting that person had probable cause to believe that the person was attempting to operate a video recording device within the premises of a motion picture theater without the authority of the owner of the theater or had stolen or attempted to steal books or library materials and that the person employed by a library facility acted reasonably under all the circumstances. (g) As used in this section: (1) "Merchandise" means any personal property, capable of manual delivery, displayed, held or offered for retail sale by a merchant. (2) "Merchant" means an owner or operator, and the agent, consignee, employee, lessee, or officer of an owner or operator, of any premises used for the retail purchase or sale of any personal property capable of manual delivery. (3) "Theater owner" means an owner or operator, and the agent, employee, consignee, lessee, or officer of an owner or operator, of any premises used for the exhibition or performance of motion pictures to the general public. (4) The terms "book or other library materials" include any book, plate, picture, photograph, engraving, painting, drawing, map, newspaper, magazine, pamphlet, broadside, manuscript, document, letter, public record, microform, sound recording, audiovisual material in any format, magnetic or other tape, electronic data-processing record, artifact, or other documentary, written or printed material regardless of physical form or characteristics, or any part thereof, belonging to, on loan to, or otherwise in the custody of a library facility. (5) The term "library facility" includes any public library; any library of an educational, historical or eleemosynary institution, organization or society; any museum; any repository of public records. (h) Any library facility shall post at its entrance and exit a conspicuous sign to read as follows: "IN ORDER TO PREVENT THE THEFT OF BOOKS AND LIBRARY MATERIALS, STATE LAW AUTHORIZES THE DETENTION FOR A REASONABLE PERIOD OF ANY PERSON USING THESE FACILITIES SUSPECTED OF COMMITTING "LIBRARY THEFT" (PENAL CODE SECTION 490.5)." SEC. 213. Section 490.7 of the Penal Code is amended to read: 490.7. (a) The Legislature finds that free newspapers provide a key source of information to the public, in many cases providing an important alternative to the news and ideas expressed in other local media sources. The Legislature further finds that the unauthorized taking of multiple copies of free newspapers, whether done to sell them to recycling centers, to injure a business competitor, to deprive others of the opportunity to read them, or for any other reason, injures the rights of readers, writers, publishers, and advertisers, and impoverishes the marketplace of ideas in California. (b) No person shall take more than twenty-five (25) copies of the current issue of a free or complimentary newspaper if done with the intent to do one or more of the following: (1) Recycle the newspapers for cash or other payment. (2) Sell or barter the newspaper. (3) Deprive others of the opportunity to read or enjoy the newspaper. (4) Harm a business competitor. (c) This section does not apply to the owner or operator of the newsrack in which the copies are placed, the owner or operator of the property on which the newsrack is placed, the publisher, the printer, the distributor, the deliverer of the newspaper, or to any advertiser in that issue, or to any other person who has the express permission to do so from any of these entities. (d) Any newspaper publisher may provide express permission to take more than twenty-five (25) copies of the current issue of a free or complimentary newspaper by indicating on the newsrack or in the newspaper itself, that people may take a greater number of copies if they wish. (e) A first violation of subdivision (b) shall be an infraction punishable by a fine not exceeding two hundred fifty dollars ($250). A second or subsequent violation shall be punishable as an infraction or a misdemeanor. A misdemeanor conviction under this section is punishable by a fine not exceeding five hundred dollars ($500), imprisonment of up to 10 days in a county jail, or by both that fine and imprisonment. The court may order community service in lieu of the punishment otherwise provided for an infraction or misdemeanor in the amount of 20 hours for an infraction, and 40 hours for a misdemeanor. A misdemeanor conviction under this section shall not constitute a conviction for petty theft. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (g) This section shall not be construed to repeal, modify, or weaken any existing legal prohibitions against the taking of private property. (h) For purposes of this section, an issue is current if no more than half of the period of time until the distribution of the next issue has passed. SEC. 214. Section 496 of the Penal Code is amended to read: 496. (a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. However, if the district attorney or the grand jury determines that this action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed four hundred dollars ($400), specify in the accusatory pleading that the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year. A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property. (b) Every swap meet vendor, as defined in Section 21661 of the Business and Professions Code, and every person whose principal business is dealing in, or collecting, merchandise or personal property, and every agent, employee, or representative of that person, who buys or receives any property of a value in excess of four hundred dollars ($400) that has been stolen or obtained in any manner constituting theft or extortion, under circumstances that should cause the person, agent, employee, or representative to make reasonable inquiry to ascertain that the person from whom the property was bought or received had the legal right to sell or deliver it, without making a reasonable inquiry, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year. Every swap meet vendor, as defined in Section 21661 of the Business and Professions Code, and every person whose principal business is dealing in, or collecting, merchandise or personal property, and every agent, employee, or representative of that person, who buys or receives any property of a value of four hundred dollars ($400) or less that has been stolen or obtained in any manner constituting theft or extortion, under circumstances that should cause the person, agent, employee, or representative to make reasonable inquiry to ascertain that the person from whom the property was bought or received had the legal right to sell or deliver it, without making a reasonable inquiry, shall be guilty of a misdemeanor. (c) Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees. (d) Notwithstanding Section 664, any attempt to commit any act prohibited by this section, except an offense specified in the accusatory pleading as a misdemeanor, is punishable by imprisonment in the state prison, or in a county jail for not more than one year. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 215. Section 498 of the Penal Code is amended to read: 498. (a) The following definitions govern the construction of this section: (1) "Person" means any individual, or any partnership, firm, association, corporation, limited liability company, or other legal entity. (2) "Utility" means any electrical, gas, or water corporation as those terms are defined in the Public Utilities Code, and electrical, gas, or water systems operated by any political subdivision. (3) "Customer" means the person in whose name utility service is provided. (4) "Utility service" means the provision of electricity, gas, water, or any other service provided by the utility for compensation. (5) "Divert" means to change the intended course or path of electricity, gas, or water without the authorization or consent of the utility. (6) "Tamper" means to rearrange, injure, alter, interfere with, or otherwise prevent from performing a normal or customary function. (7) "Reconnection" means the reconnection of utility service by a customer or other person after service has been lawfully disconnected by the utility. (b) Any person who, with intent to obtain for himself or herself utility services without paying the full lawful charge therefor, or with intent to enable another person to do so, or with intent to deprive any utility of any part of the full lawful charge for utility services it provides, commits, authorizes, solicits, aids, or abets any of the following shall be guilty of a misdemeanor: (1) Diverts or causes to be diverted utility services, by any means. (2) Prevents any utility meter, or other device used in determining the charge for utility services, from accurately performing its measuring function by tampering or by any other means. (3) Tampers with any property owned by or used by the utility to provide utility services. (4) Makes or causes to be made any connection with or reconnection with property owned or used by the utility to provide utility services without the authorization or consent of the utility. (5) Uses or receives the direct benefit of all or a portion of utility services with knowledge or reason to believe that the diversion, tampering, or unauthorized connection existed at the time of that use, or that the use or receipt was otherwise without the authorization or consent of the utility. (c) In any prosecution under this section, the presence of any of the following objects, circumstances, or conditions on premises controlled by the customer or by the person using or receiving the direct benefit of all or a portion of utility services obtained in violation of this section shall permit an inference that the customer or person intended to and did violate this section: (1) Any instrument, apparatus, or device primarily designed to be used to obtain utility services without paying the full lawful charge therefor. (2) Any meter that has been altered, tampered with, or bypassed so as to cause no measurement or inaccurate measurement of utility services. (d) If the value of all utility services obtained in violation of this section totals more than four hundred dollars ($400) or if the defendant has previously been convicted of an offense under this section or any former section which would be an offense under this section, or of an offense under the laws of another state or of the United States which would have been an offense under this section if committed in this state, then the violation is punishable by imprisonment in the county jail for not more than one year, or in the state prison. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) This section shall not be construed to preclude the applicability of any other provision of the criminal law of this state. SEC. 216. Section 499 of the Penal Code is amended to read: 499. (a) Any person who, having been convicted of a previous violation of Section 10851 of the Vehicle Code, or of subdivision (d) of Section 487, involving a vehicle or vessel, and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for the offense, is subsequently convicted of a violation of Section 499b, involving a vehicle or vessel, is punishable for the subsequent offense by imprisonment in the county jail not exceeding one year or the state prison for 16 months, two, or three years. (b) Any person convicted of a violation of Section 499b, who has been previously convicted under charges separately brought and tried two or more times of a violation of Section 499b, all such violations involving a vehicle or vessel, and who has been imprisonedthereforetherefor as a condition of probation or otherwise at least once, is punishable by imprisonment in the county jail for not more than one year or in the state prison for 16 months, two, or three years. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 217. Section 499b of the Penal Code is amended to read: 499b. (a) Any person who, without the permission of the owner thereof, takes any bicycle for the purpose of temporarily using or operating the same, is guilty of a misdemeanor, and shall be punished by a fine not exceeding four hundred dollars ($400), or by imprisonment in a county jail not exceeding three months, or by both that fine and imprisonment. (b) Any person who, without the permission of the owner thereof, takes any vessel for the purpose of temporarily using or operating the same, is guilty of a misdemeanor, and shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 218. Section 499c of the Penal Code is amended to read: 499c. (a) As used in this section: (1) "Access" means to approach, a way or means of approaching, nearing, admittance to, including to instruct, communicate with, store information in, or retrieve information from a computer system or computer network. (2) "Article" means any object, material, device, or substance or copy thereof, including any writing, record, recording, drawing, sample, specimen, prototype, model, photograph, micro-organism, blueprint, map, or tangible representation of a computer program or information, including both human and computer readable information and information while in transit. (3) "Benefit" means gain or advantage, or anything regarded by the beneficiary as gain or advantage, including benefit to any other person or entity in whose welfare he or she is interested. (4) "Computer system" means a machine or collection of machines, one or more of which contain computer programs and information, that performs functions, including, but not limited to, logic, arithmetic, information storage and retrieval, communications, and control. (5) "Computer network" means an interconnection of two or more computer systems. (6) "Computer program" means an ordered set of instructions or statements, and related information that, when automatically executed in actual or modified form in a computer system, causes it to perform specified functions. (7) "Copy" means any facsimile, replica, photograph or other reproduction of an article, and any note, drawing or sketch made of or from an article. (8) "Representing" means describing, depicting, containing, constituting, reflecting or recording. (9) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (A) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (b) Every person is guilty of theft who, with intent to deprive or withhold the control of a trade secret from its owner, or with an intent to appropriate a trade secret to his or her own use or to the use of another, does any of the following: (1) Steals, takes, carries away, or uses without authorization, a trade secret. (2) Fraudulently appropriates any article representing a trade secret entrusted to him or her. (3) Having unlawfully obtained access to the article, without authority makes or causes to be made a copy of any article representing a trade secret. (4) Having obtained access to the article through a relationship of trust and confidence, without authority and in breach of the obligations created by that relationship, makes or causes to be made, directly from and in the presence of the article, a copy of any article representing a trade secret. (c) Every person who promises, offers or gives, or conspires to promise or offer to give, to any present or former agent, employee or servant of another, a benefit as an inducement, bribe or reward for conveying, delivering or otherwise making available an article representing a trade secret owned by his or her present or former principal, employer or master, to any person not authorized by the owner to receive or acquire the trade secret and every present or former agent, employee, or servant, who solicits, accepts, receives or takes a benefit as an inducement, bribe or reward for conveying, delivering or otherwise making available an article representing a trade secret owned by his or her present or former principal, employer or master, to any person not authorized by the owner to receive or acquire the trade secret, shall be punished by imprisonment in the state prison, or in a county jail not exceeding one year, or by a fine not exceeding five thousand dollars ($5,000), or by both that fine and imprisonment. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) In a prosecution for a violation of this section, it shall be no defense that the person returned or intended to return the article. SEC. 219. Section 499d of the Penal Code is amended to read: 499d. (a) Any person who operates or takes an aircraft not his own, without the consent of the owner thereof, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of that vehicle, whether with or without intent to steal the same, or any person who is a party or accessory to or an accomplice in any operation or unauthorized taking or stealing is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison, or in the county jail for not more than one year or by a fine of not more than ten thousand dollars ($10,000) or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 220. Section 520 of the Penal Code is amended to read: 520. (a) Every person who extorts any money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, such as is mentioned in Section 519, shall be punished by imprisonment in the state prison for two, three or four years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 221. Section 524 of the Penal Code is amended to read: 524. (a) Every person who attempts, by means of any threat, such as is specified in Section 519, to extort money or other property from another is punishable by imprisonment in the county jail not longer than one year or in the state prison or by fine not exceeding ten thousand dollars ($10,000), or by both that fine and imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 222. Section 530.5 of the Penal Code is amended to read: 530.5. (a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment in the state prison. (b) In any case in which a person willfully obtains personal identifying information of another person, uses that information to commit a crime in addition to a violation of subdivision (a), and is convicted of that crime, the court records shall reflect that the person whose identity was falsely used to commit the crime did not commit the crime. (c) (1) Every person who, with the intent to defraud, acquires, or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or both a fine and imprisonment. (2) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and who has previously been convicted of a violation of this section upon conviction therefor shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment in the state prison. (3) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of 10 or more other persons is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment in the state prison. (d) (1) Every person who, with the intent to defraud, sells, transfers, or conveys the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment in the state prison. (2) Every person who, with actual knowledge that the personal identifying information, as defined in subdivision (b) of Section 530.55, of a specific person will be used to commit a violation of subdivision (a), sells, transfers, or conveys that same personal identifying information is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in the state prison, or by both fine and imprisonment. (e) Every person who commits mail theft, as defined in Section 1705 of Title 18 of the United States Code, is guilty of a public offense, and upon conviction therefor shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment. Prosecution under this subdivision shall not limit or preclude prosecution under any other provision of law, including, but not limited to subdivisions (a) to (c), inclusive. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (g) An interactive computer service or access software provider, as defined in subsection (f) of Section 230 of Title 47 of the United States Code, shall not be liable under this section unless the service or provider acquires, transfers, sells, conveys, or retains possession of personal information with the intent to defraud. SEC. 223. Section 646.9 of the Penal Code is amended to read: 646.9. (a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. (b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years. (c) (1) Every person who, after having been convicted of a felony under Section 273.5, 273.6, or 422, commits a violation of subdivision (a) shall be punished by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or five years. (2) Every person who, after having been convicted of a felony under subdivision (a), commits a violation of this section shall be punished by imprisonment in the state prison for two, three, or five years. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) In addition to the penalties provided in this section, the sentencing court may order a person convicted of a felony under this section to register as a sex offender pursuant to Section 290.006. (f) (1) For the purposes of this section, "harasses" means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. (2) For the purposes of this section, "course of conduct" means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct." (3) For the purposes of this section, "credible threat" means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section. Constitutionally protected activity is not included within the meaning of "credible threat." (4) For purposes of this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code. (5) For purposes of this section, "immediate family" means any spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household. (g) This section shall not apply to conduct that occurs during labor picketing. (h) If probation is granted, or the execution or imposition of a sentence is suspended, for any person convicted under this section, it shall be a condition of probation that the person participate in counseling, as designated by the court. However, the court, upon a showing of good cause, may find that the counseling requirement shall not be imposed. (i) The sentencing court also shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. (j) The court shall consider whether the defendant would benefit from treatment pursuant to Section 2684. If it is determined to be appropriate, the court shall recommend that the Department of Corrections and Rehabilitation make a certification as provided in Section 2684. Upon the certification, the defendant shall be evaluated and transferred to the appropriate hospital for treatment pursuant to Section 2684. SEC. 224. Section 664 of the Penal Code is amended to read: 664. Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (b) If the crime attempted is punishable by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (c) If the offense so attempted is punishable by a fine, the offender convicted of that attempt shall be punished by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense attempted. (d) If a crime is divided into degrees, an attempt to commit the crime may be of any of those degrees, and the punishment for the attempt shall be determined as provided by this section. (e) Notwithstanding subdivision (a), if attempted murder is committed upon a peace officer or firefighter, as those terms are defined in paragraphs (7) and (9) of subdivision (a) of Section 190.2, a custodial officer, as that term is defined in subdivision (a) of Section 831 or subdivision (a) of Section 831.5, a custody assistant, as that term is defined in subdivision (a) of Section 831.7, or a nonsworn uniformed employee of a sheriff's department whose job entails the care or control of inmates in a detention facility, as defined in subdivision (c) of Section 289.6, and the person who commits the offense knows or reasonably should know that the victim is a peace officer, firefighter, custodial officer, custody assistant, or nonsworn uniformed employee of a sheriff's department engaged in the performance of his or her duties, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. This subdivision shall apply if it is proven that a direct but ineffectual act was committed by one person toward killing another human being and the person committing the act harbored express malice aforethought, namely, a specific intent to unlawfully kill another human being. The Legislature finds and declares that this paragraph is declaratory of existing law. (f) Notwithstanding subdivision (a), if the elements of subdivision (e) are proven in an attempted murder and it is also charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated, the person guilty of the attempt shall be punished by imprisonment in the state prison for 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce this minimum term of 15 years in state prison, and the person shall not be released prior to serving 15 years' confinement. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 225. Section 666 of the Penal Code is amended to read: 666. (a) Every person who, having been convicted of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 226. Section 666.5 of the Penal Code is amended to read: 666.5. (a) Every person who, having been previously convicted of a felony violation of Section 10851 of the Vehicle Code, or felony grand theft involving an automobile in violation of subdivision (d) of Section 487 or former subdivision (3) of Section 487, as that section read prior to being amended by Section 4 of Chapter 1125 of the Statutes of 1993, or felony grand theft involving a motor vehicle, as defined in Section 415 of the Vehicle Code, any trailer, as defined in Section 630 of the Vehicle Code, any special construction equipment, as defined in Section 565 of the Vehicle Code, or any vessel, as defined in Section 21 of the Harbors and Navigation Code in violation of former Section 487h, or a felony violation of Section 496d regardless of whether or not the person actually served a prior prison term for those offenses, is subsequently convicted of any of these offenses shall be punished by imprisonment in the state prison for two, three, or four years, or a fine of ten thousand dollars ($10,000), or both the fine and the imprisonment. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) For the purposes of this section, the terms "special construction equipment" and "vessel" are limited to motorized vehicles and vessels. (d) The existence of any fact which would bring a person under subdivision (a) shall be alleged in the information or indictment and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury. SEC. 227. Section 667.10 of the Penal Code is amended to read: 667.10. (a) Any person who has a prior conviction of the offense set forth in Section 289 and who commits that crime against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, as defined in subdivision (d) of Section 667.9, a paraplegic, or a quadriplegic, or against a person who is under the age of 14 years, and that disability or condition is known or reasonably should be known to the person committing the crime, shall receive a two-year enhancement for each violation in addition to the sentence provided under Section 289. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) The existence of any fact which would bring a person under subdivision (a) shall be alleged in the information or indictment and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury. SEC. 228. Section 667.15 of the Penal Code is amended to read: 667.15. Any adult who, prior to or during the commission or attempted commission of a violation of Section 288 or 288.5, exhibits to the minor any matter, as defined in subdivision (d) of Section 311.11, the production of which involves the use of a person under the age of 14 years, knowing that the matter depicts a person under the age of 14 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or of the minor, or with the intent, or for the purpose, of seducing the minor, shall be punished for a violation of this section as follows: (a) If convicted of the commission or attempted commission of a violation of Section 288, the adult shall receive an additional term of one year, which punishment shall be imposed in addition and consecutive to the punishment imposed for the commission or attempted commission of a violation of Section 288. (b) If convicted of the commission or attempted commission of a violation of Section 288.5, the adult shall receive an additional term of two years, which punishment shall be imposed in addition and consecutive to the punishment imposed for the commission or attempted commission of a violation of Section 288.5. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 229. Section 667.16 of the Penal Code is amended to read: 667.16. (a) Any person convicted of a felony violation of Section 470, 487, or 532 as part of a plan or scheme to defraud an owner of a residential or nonresidential structure, including a mobilehome or manufactured home, in connection with the offer or performance of repairs to the structure for damage caused by a natural disaster, shall receive a one-year enhancement in addition and consecutive to the penalty prescribed. The additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (b) This enhancement applies to natural disasters for which a state of emergency is proclaimed by the Governor pursuant to Section 8625 of the Government Code or for which an emergency or major disaster is declared by the President of the United States. (c) Notwithstanding any other law, the court may strike the additional term provided in subdivision (a) if the court determines that there are mitigating circumstances and states on the record the reasons for striking the additional punishment. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 230. Section 667.17 of the Penal Code is amended to read: 667.17. (a) Any person who violates the provisions of Section 538d during the commission of a felony shall receive an additional one-year term of imprisonment to be imposed consecutive to the term imposed for the felony, in lieu of the penalty that would have been imposed under Section 538d. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 231. Section 667.5 of the Penal Code is amended to read: 667.5. Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: (a) Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. (b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. (c) For the purpose of this section, "violent felony" shall mean any of the following: (1) Murder or voluntary manslaughter. (2) Mayhem. (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262. (4) Sodomy as defined in subdivision (c) or (d) of Section 286. (5) Oral copulation as defined in subdivision (c) or (d) of Section 288a. (6) Lewd or lascivious 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 Department of Corrections and Rehabilitation at a facility operated by the department, 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. (l) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 232. 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. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 233. 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) Lewd or lascivious act, in violation of subdivision (b) of Section 288. (6) Continuous sexual abuse of a child, in violation of Section 288.5. (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 288a. (8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289. (9) As a present offense under subdivision (c) or (d), assault with intent to commit a specified sexual offense, in violation of Section 220. (10) As a prior conviction under subdivision (a) or (b), an offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision. (f) In addition to any enhancement imposed pursuant to subdivision (a) or (b), the court may also impose a fine not to exceed twenty thousand dollars ($20,000) for anyone sentenced under those provisions. The fine imposed and collected pursuant to this subdivision shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs established pursuant to Section 13837. 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. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 234. 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) 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) 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 can 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 is either admitted by the defendant in open court or found to be true by the trier of fact. (k) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 235. Section 667.7 of the Penal Code is amended to read: 667.7. (a) Any person convicted of a felony in which the person inflicted great bodily injury as provided in Section 12022.53 or 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in Section 667.5 for the crime of murder; attempted murder; voluntary manslaughter; mayhem; rape by force, violence, or fear of immediate and unlawful bodily injury on the victim or another person; oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; sodomy by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; lewd acts on a child under the age of 14 years by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; a violation of subdivision (a) of Section 289 where the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; kidnapping as punished in former subdivision (d) of Section 208, or for ransom, extortion, or robbery; robbery involving the use of force or a deadly weapon; carjacking involving the use of a deadly weapon; assault with intent to commit murder; assault with a deadly weapon; assault with a force likely to produce great bodily injury; assault with intent to commit rape, sodomy, oral copulation, sexual penetration in violation of Section 289, or lewd and lascivious acts on a child; arson of a structure; escape or attempted escape by an inmate with force or violence in violation of subdivision (a) of Section 4530, or of Section 4532; exploding a destructive device with intent to murder in violation of Section 12308; exploding a destructive device which causes bodily injury in violation of Section 12309, or mayhem or great bodily injury in violation of Section 12310; exploding a destructive device with intent to injure, intimidate, or terrify, in violation of Section 12303.3; any felony in which the person inflicted great bodily injury as provided in Section 12022.53 or 12022.7; or any felony punishable by death or life imprisonment with or without the possibility of parole is a habitual offender and shall be punished as follows: (1) A person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046, whichever is greatest. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term in a state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time. (2) Any person convicted of a felony specified in this subdivision who has served three or more prior separate prison terms, as defined in Section 667.5, for the crimes specified in subdivision (a) of this section shall be punished by imprisonment in the state prison for life without the possibility of parole. (b) This section shall not prevent the imposition of the punishment of death or imprisonment for life without the possibility of parole. No prior prison term shall be used for this determination which was served prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction. As used in this section, a commitment to the former Department of the Youth Authority after conviction for a felony shall constitute a prior prison term. The term imposed under this section shall be imposed only if the prior prison terms are alleged under this section in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by a trial by the court sitting without a jury. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 236. 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) Lewd or lascivious act, in violation of subdivision (a) or (b) of Section 288. (5) Sexual penetration, in violation of subdivision (a) or (j) of Section 289. (6) Continuous sexual abuse of a child, in violation of Section 288.5. (7) Sodomy, in violation of subdivision (c) or (d) of Section 286. (8) Oral copulation, in violation of subdivision (c) or (d) of Section 288a. (9) Kidnapping, in violation of subdivision (b) of Section 207. (10) Kidnapping, in violation of former subdivision (d) of Section 208 (kidnapping to commit specified sex offenses). (11) Kidnapping, in violation of subdivision (b) of Section 209 with the intent to commit a specified sexual offense. (12) Aggravated sexual assault of a child, in violation of Section 269. (13) An offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision. (d) Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any prior conviction specified in subdivision (c) for any person who is subject to punishment under this section. (e) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section. (f) This section shall apply only if the defendant's status as a habitual sexual offender is alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the trier of fact. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 237. Section 667.75 of the Penal Code is amended to read: 667.75. (a) Any person convicted of a violation of Section 11353, 11353.5, 11361, 11380, or 11380.5 of the Health and Safety Code who has previously served two or more prior separate prison terms, as defined in Section 667.5, for a violation of Section 11353, 11353.5, 11361, 11380, or 11380.5 of the Health and Safety Code, may be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 17 years, or the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, whichever is greatest. The provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term in a state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time. No prior prison term shall be used for this determination which was served prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction. As used in this section, a commitment to the former Department of the Youth Authority after conviction for a felony shall constitute a prior prison term. The term imposed under this section shall be imposed only if the prior prison terms are alleged under this section in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by a trial by the court sitting without a jury. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 238. Section 667.8 of the Penal Code is amended to read: 667.8. (a) Except as provided in subdivision (b), any person convicted of a felony violation of Section 261, 262, 264.1, 286, 288a, or 289 who, for the purpose of committing that sexual offense, kidnapped the victim in violation of Section 207 or 209, shall be punished by an additional term of nine years. (b) Any person convicted of a felony violation of subdivision (c) of Section 286, Section 288, or subdivision (c) of Section 288a who, for the purpose of committing that sexual offense, kidnapped the victim, who was under the age of 14 years at the time of the offense, in violation of Section 207 or 209, shall be punished by an additional term of 15 years. This subdivision is not applicable to conduct proscribed by Section 277, 278, or 278.5. (c) The following shall govern the imposition of an enhancement pursuant to this section: (1) Only one enhancement shall be imposed for a victim per incident. (2) If there are two or more victims, one enhancement can be imposed for each victim per incident. (3) The enhancement may be in addition to the punishment for either, but not both, of the following: (A) A violation of Section 207 or 209. (B) A violation of the sexual offenses enumerated in this section. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 239. Section 667.85 of the Penal Code is amended to read: 667.85. (a) Any person convicted of a violation of Section 207 or 209, who kidnapped or carried away any child under the age of 14 years with the intent to permanently deprive the parent or legal guardian custody of that child, shall be punished by imprisonment in the state prison for an additional five years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 240. Section 667.9 of the Penal Code is amended to read: 667.9. (a) Any person who commits one or more of the crimes specified in subdivision (c) against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under the age of 14 years, and that disability or condition is known or reasonably should be known to the person committing the crime, shall receive a one-year enhancement for each violation. (b) Any person who commits a violation of subdivision (a) and who has a prior conviction for any of the offenses specified in subdivision (c), shall receive a two-year enhancement for each violation in addition to the sentence provided under Section 667. (c) Subdivisions (a) and (b) apply to the following crimes: (1) Mayhem, in violation of Section 203 or 205. (2) Kidnapping, in violation of Section 207, 209, or 209.5. (3) Robbery, in violation of Section 211. (4) Carjacking, in violation of Section 215. (5) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. (6) Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Section 262. (7) Rape, spousal rape, or sexual penetration in concert, in violation of Section 264.1. (8) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. (9) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. (10) Sexual penetration, in violation of subdivision (a) of Section 289. (11) Burglary of the first degree, as defined in Section 460, in violation of Section 459. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (e) As used in this section, "developmentally disabled" means a severe, chronic disability of a person, which is all of the following: (1) Attributable to a mental or physical impairment or a combination of mental and physical impairments. (2) Likely to continue indefinitely. (3) Results in substantial functional limitation in three or more of the following areas of life activity: (A) Self-care. (B) Receptive and expressive language. (C) Learning. (D) Mobility. (E) Self-direction. (F) Capacity for independent living. (G) Economic self-sufficiency. SEC. 241. Section 668 of the Penal Code is amended to read: 668. (a) Every person who has been convicted in any other state, government, country, or jurisdiction of an offense for which, if committed within this state, that person could have been punished under the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if that prior conviction had taken place in a court of this state. The application of this section includes, but is not limited to, all statutes that provide for an enhancement or a term of imprisonment based on a prior conviction or a prior prison term. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 242. Section 674 of the Penal Code is amended to read: 674. (a) Any person who is a primary care provider in a day care facility and who is convicted of a felony violation of Section 261, 285, 286, 288, 288a, or 289, where the victim of the crime was a minor entrusted to his or her care by the minor's parent or guardian, a court, any public agency charged with the provision of social services, or a probation department, may be punished by an additional term of two years. (b) If the crime described in subdivision (a) was committed while voluntarily acting in concert with another, the person so convicted may be punished by an additional term of three years. (c) The enhancements authorized by this section may be imposed in addition to any other required or authorized enhancement. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 243. Section 675 of the Penal Code is amended to read: 675. (a) Any person suffering a felony conviction for a violation of subdivision (c) or (d) of Section 261.5, paragraph (1) or (2) of subdivision (b) or paragraph (1) of subdivision (c) of Section 286, subdivision (a) or paragraph (1) of subdivision (c) of Section 288, or paragraph (1) or (2) of subdivision (b) or paragraph (1) of subdivision (c) of Section 288a, where the offense was committed with a minor for money or other consideration, is punishable by an additional term of imprisonment in the state prison of one year. (b) The enhancements authorized by this section may be imposed in addition to any other required or authorized enhancement. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 244. Section 2931 of the Penal Code is amended to read: 2931. (a) In any case in which a prisoner was sentenced to the state prison pursuant to Section 1170, or if he committed a felony before July 1, 1977, and he would have been sentenced under Section 1170 if the felony had been committed after July 1, 1977, the Department of Corrections and Rehabilitation shall have the authority to reduce the term prescribed under such section by one-third for good behavior and participation consistent with subdivision (d) of Section 1170.2. A document shall be signed by a prison official and given to the prisoner, at the time of compliance with Section 2930, outlining the conditions which the prisoner shall meet to receive the credit. The conditions specified in such document may be modified upon any of the following: (1) Mutual consent of the prisoner and the department. (2) The transfer of the prisoner from one institution to another. (3) The department's determination of the prisoner's lack of adaptability or success in a specific program or assignment. In such case the prisoner shall be entitled to a hearing regarding the department's decision. (4) A change in custodial status. (b) Total possible good behavior and participation credit shall result in a four-month reduction for each eight months served in prison or in a reduction based on this ratio for any lesser period of time. Three months of this four-month reduction, or a reduction based on this ratio for any lesser period, shall be based upon forbearance from any act for which the prisoner could be prosecuted in a court of law, either as a misdemeanor or a felony, or any act of misconduct described as a serious disciplinary infraction by the department. (c) One month of this four-month reduction, or a reduction based on this ratio for a lesser period, shall be based solely upon participation in work, educational, vocational, therapeutic or other prison activities. Failure to succeed after demonstrating a reasonable effort in the specified activity shall not result in loss of participation credit. Failure to participate in the specified activities can result in a maximum loss of credit of 30 days for each failure to participate. However, those confined for other than behavior problems shall be given specified activities commensurate with the custodial status. (d) This section shall not apply to any person whose crime was committed on or after January 1, 1983. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall have his or her term reduced as provided in the applicable sentencing rules. SEC. 245. Section 2932 of the Penal Code is amended to read: 2932. (a) (1) For any time credit accumulated pursuant to Section 2931 or to Section 2933, not more than 360 days of credit may be denied or lost for a single act of murder, attempted murder, solicitation of murder, manslaughter, rape, sodomy, or oral copulation accomplished against the victim's will, attempted rape, attempted sodomy, or attempted oral copulation accomplished against the victim's will, assault or battery causing serious bodily injury, assault with a deadly weapon or caustic substance, taking of a hostage, escape with force or violence, or possession or manufacture of a deadly weapon or explosive device, whether or not prosecution is undertaken for purposes of this paragraph. Solicitation of murder shall be proved by the testimony of two witnesses, or of one witness and corroborating circumstances. (2) Not more than 180 days of credit may be denied or lost for a single act of misconduct, except as specified in paragraph (1), which could be prosecuted as a felony whether or not prosecution is undertaken. (3) Not more than 90 days of credit may be denied or lost for a single act of misconduct which could be prosecuted as a misdemeanor, whether or not prosecution is undertaken. (4) Not more than 30 days of credit may be denied or lost for a single act of misconduct defined by regulation as a serious disciplinary offense by the Department of Corrections and Rehabilitation. Any person confined due to a change in custodial classification following the commission of any serious disciplinary infraction shall, in addition to any loss of time credits, be ineligible to receive participation or worktime credit for a period not to exceed the number of days of credit which have been lost for the act of misconduct or 180 days, whichever is less. Any person confined in a secure housing unit for having committed any misconduct specified in paragraph (1) in which great bodily injury is inflicted upon a nonprisoner shall, in addition to any loss of time credits, be ineligible to receive participation or worktime credit for a period not to exceed the number of days of credit which have been lost for that act of misconduct, or for the period that the prisoner is confined in a secure housing unit, whichever is less. In unusual cases, an inmate may be denied the opportunity to participate in a credit qualifying assignment for up to six months beyond the period specified in this subdivision if the Secretary of the Department of Corrections and Rehabilitation finds, after a hearing, that no credit qualifying program may be assigned to the inmate without creating a substantial risk of physical harm to staff or other inmates. At the end of the six-month period and of successive six-month periods, the denial of the opportunity to participate in a credit qualifying assignment may be renewed upon a hearing and finding by the director. The prisoner may appeal the decision through the department's review procedure, which shall include a review by an individual independent of the institution who has supervisorial authority over the institution. (b) For any credit accumulated pursuant to Section 2931, not more than 30 days of participation credit may be denied or lost for a single failure or refusal to participate. Any act of misconduct described by the department as a serious disciplinary infraction if committed while participating in work, educational, vocational, therapeutic, or other prison activity shall be deemed a failure to participate. (c) Any procedure not provided for by this section, but necessary to carry out the purposes of this section, shall be those procedures provided for by the department for serious disciplinary infractions if those procedures are not in conflict with this section. (1) (A) The department shall, using reasonable diligence to investigate, provide written notice to the prisoner. The written notice shall be given within 15 days after the discovery of information leading to charges that may result in a possible denial of credit, except that if the prisoner has escaped, the notice shall be given within 15 days of the prisoner's return to the custody of the department. The written notice shall include the specific charge, the date, the time, the place that the alleged misbehavior took place, the evidence relied upon, a written explanation of the procedures that will be employed at the proceedings and the prisoner' s rights at the hearing. The hearing shall be conducted by an individual who shall be independent of the case and shall take place within 30 days of the written notice. (B) The department may delay written notice beyond 15 days when all of the following factors are true: (i) An act of misconduct is involved which could be prosecuted as murder, attempted murder, or assault on a prison employee, whether or not prosecution is undertaken. (ii) Further investigation is being undertaken for the purpose of identifying other prisoners involved in the misconduct. (iii) Within 15 days after the discovery of information leading to charges that may result in a possible denial of credit, the investigating officer makes a written request to delay notifying that prisoner and states the reasons for the delay. (iv) The warden of the institution approves of the delay in writing. The period of delay under this paragraph shall not exceed 30 days. The prisoner's hearing shall take place within 30 days of the written notice. (2) The prisoner may elect to be assigned an employee to assist in the investigation, preparation, or presentation of a defense at the disciplinary hearing if it is determined by the department that: (i) the prisoner is illiterate; or (ii) the complexity of the issues or the prisoner's confinement status makes it unlikely that the prisoner can collect and present the evidence necessary for an adequate comprehension of the case. (3) The prisoner may request witnesses to attend the hearing and they shall be called unless the person conducting the hearing has specific reasons to deny this request. The specific reasons shall be set forth in writing and a copy of the document shall be presented to the prisoner. (4) The prisoner has the right, under the direction of the person conducting the hearing, to question all witnesses. (5) At the conclusion of the hearing the charge shall be dismissed if the facts do not support the charge, or the prisoner may be found guilty on the basis of a preponderance of the evidence. (d) If found guilty the prisoner shall be advised in writing of the guilty finding and the specific evidence relied upon to reach this conclusion and the amount of time-credit loss. The prisoner may appeal the decision through the department's review procedure, and may, upon final notification of appeal denial, within 15 days of the notification demand review of the department's denial of credit to the Board of Parole Hearings, and the board may affirm, reverse, or modify the department's decision or grant a hearing before the board at which hearing the prisoner shall have the rights specified in Section 3041. (e) Each prisoner subject to Section 2931 shall be notified of the total amount of good behavior and participation credit which may be credited pursuant to Section 2931, and his or her anticipated time-credit release date. The prisoner shall be notified of any change in the anticipated release date due to denial or loss of credits, award of worktime credit, under Section 2933, or the restoration of any credits previously forfeited. (f) If the conduct the prisoner is charged with also constitutes a crime, the department may refer the case to criminal authorities for possible prosecution. The department shall notify the prisoner, who may request postponement of the disciplinary proceedings pending the referral. The prisoner may revoke his or her request for postponement of the disciplinary proceedings up until the filing of the accusatory pleading. In the event of the revocation of the request for postponement of the proceeding, the department shall hold the hearing within 30 days of the revocation. Notwithstanding the notification requirements in this paragraph and subparagraphs (A) and (B) of paragraph (1) of subdivision (c), in the event the case is referred to criminal authorities for prosecution and the authority requests that the prisoner not be notified so as to protect the confidentiality of its investigation, no notice to the prisoner shall be required until an accusatory pleading is filed with the court, or the authority notifies the warden, in writing, that it will not prosecute or it authorizes the notification of the prisoner. The notice exceptions provided for in this paragraph shall only apply if the criminal authority requests of the warden, in writing, and within the 15 days provided in subparagraph (A) of paragraph (1) of subdivision (c), that the prisoner not be notified. Any period of delay of notice to the prisoner shall not exceed 30 days beyond the 15 days referred to in subdivision (c). In the event that no prosecution is undertaken, the procedures in subdivision (c) shall apply, and the time periods set forth in that subdivision shall commence to run from the date the warden is notified in writing of the decision not to prosecute. In the event the authority either cancels its requests that the prisoner not be notified before it makes a decision on prosecution or files an accusatory pleading, the provisions of this paragraph shall apply as if no request had been received, beginning from the date of the cancellation or filing. In the case where the prisoner is prosecuted by the district attorney, the department shall not deny time credit where the prisoner is found not guilty and may deny credit if the prisoner is found guilty, in which case the procedures in subdivision (c) shall not apply. (g) If time credit denial proceedings or criminal prosecution prohibit the release of a prisoner who would have otherwise been released, and the prisoner is found not guilty of the alleged misconduct, the amount of time spent incarcerated, in excess of what the period of incarceration would have been absent the alleged misbehavior, shall be deducted from the prisoner's parole period. (h) Nothing in the amendments to this section made at the 1981-82 Regular Session of the Legislature shall affect the granting or revocation of credits attributable to that portion of the prisoner's sentence served prior to January 1, 1983. (i) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall have his or her credit modified as provided in the applicable sentencing rules. SEC. 246. Section 2932.5 of the Penal Code is amended to read: 2932.5. (a) A prisoner who is found by a trial court to be a vexatious litigant as defined by Section 391 of the Code of Civil Procedure, shall be denied or lose 30 days of work time credit awarded under Section 2933. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall have his or her credit modified as provided in the applicable sentencing rules. SEC. 247. Section 2933 of the Penal Code is amended to read: 2933. (a) It is the intent of the Legislature that persons convicted of a crime and sentenced to the state prison under Section 1170 serve the entire sentence imposed by the court, except for a reduction in the time served in the custody of the Department of Corrections and Rehabilitation for performance in work, training or education programs established by the department. Worktime credits shall apply for performance in work assignments and performance in elementary, high school, or vocational education programs. Enrollment in a two- or four-year college program leading to a degree shall result in the application of time credits equal to that provided in Section 2931. For every six months of full-time performance in a credit qualifying program, as designated by the director, a prisoner shall be awarded worktime credit reductions from his or her term of confinement of six months. A lesser amount of credit based on this ratio shall be awarded for any lesser period of continuous performance. Less than maximum credit should be awarded pursuant to regulations adopted by the director for prisoners not assigned to a full-time credit qualifying program. Every prisoner who refuses to accept a full-time credit qualifying assignment or who is denied the opportunity to earn worktime credits pursuant to subdivision (a) of Section 2932 shall be awarded no worktime credit reduction. Every prisoner who voluntarily accepts a half-time credit qualifying assignment in lieu of a full-time assignment shall be awarded worktime credit reductions from his or her term of confinement of three months for each six-month period of continued performance. Except as provided in subdivision (a) of Section 2932, every prisoner willing to participate in a full-time credit qualifying assignment but who is either not assigned to a full-time assignment or is assigned to a program for less than full time, shall receive no less credit than is provided under Section 2931. Under no circumstances shall any prisoner receive more than six months' credit reduction for any six-month period under this section. (b) Worktime credit is a privilege, not a right. Worktime credit must be earned and may be forfeited pursuant to the provisions of Section 2932. The application of credit to reduce the sentence of a prisoner who committed a crime on or after January 1, 1997, is subject to the provisions of Section 3067. Except as provided in subdivision (a) of Section 2932, every prisoner shall have a reasonable opportunity to participate in a full-time credit qualifying assignment in a manner consistent with institutional security and available resources. (c) Under regulations adopted by the department, which shall require a period of not more than one year free of disciplinary infractions, worktime credit which has been previously forfeited may be restored by the secretary. The regulations shall provide for separate classifications of serious disciplinary infractions as they relate to restoration of credits, the time period required before forfeited credits or a portion thereof may be restored, and the percentage of forfeited credits that may be restored for these time periods. For credits forfeited for commission of a felony specified in paragraph (1) of subdivision (a) of Section 2932, the department may provide that up to 180 days of lost credit shall not be restored and up to 90 days of credit shall not be restored for a forfeiture resulting from conspiracy or attempts to commit one of those acts. No credits may be restored if they were forfeited for a serious disciplinary infraction in which the victim died or was permanently disabled. Upon application of the prisoner and following completion of the required time period free of disciplinary offenses, forfeited credits eligible for restoration under the regulations for disciplinary offenses other than serious disciplinary infractions punishable by a credit loss of more than 90 days shall be restored unless, at a hearing, it is found that the prisoner refused to accept or failed to perform in a credit qualifying assignment, or extraordinary circumstances are present that require that credits not be restored. "Extraordinary circumstances" shall be defined in the regulations adopted by thedirectorsecret ary . However, in any case in which worktime credit was forfeited for a serious disciplinary infraction punishable by a credit loss of more than 90 days, restoration of credit shall be at the discretion of thedirectorsecretary . The prisoner may appeal the finding through the department's review procedure, which shall include a review by an individual independent of the institution who has supervisorial authority over the institution. (d) The provisions of subdivision (c) shall also apply in cases of credit forfeited under Section 2931 for offenses and serious disciplinary infractions occurring on or after January 1, 1983. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall earn, have restored, or be denied, credit as provided in the applicable sentencing rules. SEC. 248. Section 2933.1 of the Penal Code is amended to read: 2933.1. (a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. (b) The 15-percent limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law. However, nothing in subdivision (a) shall affect the requirement of any statute that the defendant serve a specified period of time prior to minimum parole eligibility, nor shall any offender otherwise statutorily ineligible for credit be eligible for credit pursuant to this section. (c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of theDirector of Correctionsdepartment , shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a). (d) This section shall only apply to offenses listed in subdivision (a) that are committed on or after the date on which this section becomes operative. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall accrue credit as provided in the applicable sentencing rules. SEC. 249. Section 2933.2 of the Penal Code is amended to read: 2933.2. (a) Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933. (b) The limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law. (c) Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest for any person specified in subdivision (a). (d) This section shall only apply to murder that is committed on or after the date on which this section becomes operative. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall accrue credit as provided in the applicable sentencing rules. SEC. 250. Section 2933.3 of the Penal Code is amended to read: 2933.3. (a) Notwithstanding any other provision of law, any inmate assigned to a conservation camp by the Department of Corrections and Rehabilitation who is eligible to earn one day of worktime credit for every one day of service pursuant to Section 2933 shall instead earn two days of worktime credit for every one day of service. This enhanced worktime credit shall only apply to service performed after January 1, 2003. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall accrue credit as provided in the applicable sentencing rules. SEC. 251. Section 2933.4 of the Penal Code is amended to read: 2933.4. (a) Notwithstanding any other provision of law, any inmate under the custody of the Department of Corrections and Rehabilitation who is not currently serving and has not served a prior indeterminate sentence or a sentence for a violent felony, a serious felony, or a crime that requires him or her to register as a sex offender pursuant to Section 290, who has successfully completed an inprison drug treatment program, upon release from state prison, shall, whenever possible, be entered into a 150-day residential aftercare drug treatment program sanctioned by the department. (b) As a condition of parole, if the inmate successfully completes 150 days of residential aftercare treatment, as determined by the Department of Corrections and Rehabilitation and the aftercare provider, the parolee shall be discharged from parole supervision at that time. (c) Commencing with 2008, the department shall report annually to the Joint Legislative Budget Committee and the State Auditor on the effectiveness of these provisions, including recidivism rates. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who to whom this section applies shall serve a parole term as provided in the applicable sentencing rules. SEC. 252. Section 2933.5 of the Penal Code is amended to read: 2933.5. (a) (1) Notwithstanding any other provision of law, every person who is convicted of any felony offense listed in paragraph (2), and who previously has been convicted two or more times, on charges separately brought and tried, and who previously has served two or more separate prior prison terms, as defined in subdivision (g) of Section 667.5, of any offense or offenses listed in paragraph (2), shall be ineligible to earn credit on his or her term of imprisonment pursuant to this chapter. (2) As used in this subdivision, "felony offense" includes any of the following: (A) Murder, as defined in Sections 187 and 189. (B) Voluntary manslaughter, as defined in subdivision (a) of Section 192. (C) Mayhem as defined in Section 203. (D) Aggravated mayhem, as defined in Section 205. (E) Kidnapping, as defined in Section 207, 209, or 209.5. (F) Assault with vitriol, corrosive acid, or caustic chemical of any nature, as described in Section 244. (G) 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. (H) Sodomy by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person, as described in subdivision (c) of Section 286. (I) Sodomy while voluntarily acting in concert, as described in subdivision (d) of Section 286. (J) Lewd or lascivious acts on a child under the age of 14 years, as described in subdivision (b) of Section 288. (K) Oral copulation by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, as described in subdivision (c) of Section 288a. (L) Continuous sexual abuse of a child, as described in Section 288.5. (M) Sexual penetration, as described in subdivision (a) of Section 289. (N) Exploding a destructive device or explosive with intent to injure, as described in Section 12303.3, with intent to murder, as described in Section 12308, or resulting in great bodily injury or mayhem, as described in Section 12309. (O) Any felony in which the defendant personally inflicted great bodily injury, as provided in Section 12022.53 or 12022.7. (b) A prior conviction of an offense listed in subdivision (a) 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. (c) This section shall apply whenever the present felony is committed on or after the effective date of this section, regardless of the date of commission of the prior offense or offenses resulting in credit-earning ineligibility. (d) This section shall be in addition to, and shall not preclude the imposition of, any applicable sentence enhancement terms, or probation ineligibility and habitual offender provisions authorized under any other section. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall accrue credit as provided in the applicable sentencing rules. SEC. 253. Section 2933.6 of the Penal Code is amended to read: 2933.6. (a) Notwithstanding any other law, a person who is placed in a Security Housing Unit or an Administrative Segregation Unit for misconduct described in subdivision (b) is ineligible to earn work credits or good behavior credits during the time he or she is in the Security Housing Unit or the Administrative Segregation Unit for that misconduct. (b) This section applies to the following offenses: (1) Murder, attempted murder, and solicitation of murder. For purposes of this paragraph, solicitation of murder shall be proven by the testimony of two witnesses, or of one witness and corroborating circumstances. (2) Manslaughter. (3) Assault or battery causing serious bodily injury. (4) Assault or battery on a peace officer or other nonprisoner which results in physical injury. (5) Assault with a deadly weapon or caustic substance. (6) Rape, attempted rape, sodomy, attempted sodomy, oral copulation, or attempted oral copulation accomplished against the victim's will. (7) Taking a hostage. (8) Escape or attempted escape with force or violence. (9) Escape from any departmental prison or institution other than a camp or reentry facility. (10) Possession or manufacture of a deadly weapon or explosive device. (11) Arson involving damage to a structure. (12) Possession of flammable, explosive material with intent to burn any structure or property. (13) Solicitation of assault with a deadly weapon or assault by means of force likely to produce great bodily injury, arson, or a forcible sex act. (14) Intentional destruction of state property in excess of four hundred dollars ($400) during a riot or disturbance. (c) This section does not apply if the administrative finding of the misconduct is overturned or if the person is criminally prosecuted for the misconduct and is found not guilty. (d) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall accrue credit as provided in the applicable sentencing rules. SEC. 254. Section 3000 of the Penal Code is amended to read: 3000. (a) (1) The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. It is in the interest of public safety for the state to provide for the supervision of and surveillance of parolees, including the judicious use of revocation actions, and to provide educational, vocational, family and personal counseling necessary to assist parolees in the transition between imprisonment and discharge. A sentence pursuant to Section 1168 or 1170 shall include a period of parole, unless waived, as provided in this section. (2) The Legislature finds and declares that it is not the intent of this section to diminish resources allocated to the Department of Corrections and Rehabilitation for parole functions for which the department is responsible. It is also not the intent of this section to diminish the resources allocated to the Board of Parole Hearings to execute its duties with respect to parole functions for which the board is responsible. (3) The Legislature finds and declares that diligent effort must be made to ensure that parolees are held accountable for their criminal behavior, including, but not limited to, the satisfaction of restitution fines and orders. (4) The parole period of any person found to be a sexually violent predator shall be tolled until that person is found to no longer be a sexually violent predator, at which time the period of parole, or any remaining portion thereof, shall begin to run. (b) Notwithstanding any provision to the contrary in Article 3 (commencing with Section 3040) of this chapter, the following shall apply: (1) At the expiration of a term of imprisonment of one year and one day, or a term of imprisonment imposed pursuant to Section 1170 or at the expiration of a term reduced pursuant to Section 2931 or 2933, if applicable, the inmate shall be released on parole for a period not exceeding three years, except that any inmate sentenced for an offense specified in paragraph (3), (4), (5), (6), (11), (16), or (18) of subdivision (c) of Section 667.5 shall be released on parole for a period not exceeding five years, unless in either case the parole authority for good cause waives parole and discharges the inmate from the custody of the department. (2) In the case of any inmate sentenced under Section 1168, the period of parole shall not exceed five years in the case of an inmate imprisoned for any offense other than first or second degree murder for which the inmate has received a life sentence, and shall not exceed three years in the case of any other inmate, unless in either case the parole authority for good cause waives parole and discharges the inmate from custody of the department. This subdivision shall also be applicable to inmates who committed crimes prior to July 1, 1977, to the extent specified in Section 1170.2. (3) Notwithstanding paragraphs (1) and (2), in the case of any offense for which the inmate has received a life sentence pursuant to Section 667.61 or 667.71, the period of parole shall be 10 years. (4) The parole authority shall consider the request of any inmate regarding the length of his or her parole and the conditions thereof. (5) Upon successful completion of parole, or at the end of the maximum statutory period of parole specified for the inmate under paragraph (1), (2), or (3), as the case may be, whichever is earlier, the inmate shall be discharged from custody. The date of the maximum statutory period of parole under this subdivision and paragraphs (1), (2), and (3) shall be computed from the date of initial parole and shall be a period chronologically determined. Time during which parole is suspended because the prisoner has absconded or has been returned to custody as a parole violator shall not be credited toward any period of parole unless the prisoner is found not guilty of the parole violation. However, the period of parole is subject to the following: (A) Except as provided in Section 3064, in no case may a prisoner subject to three years on parole 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, in no case may a prisoner subject to five years on parole 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, in no case may a prisoner subject to 10 years on parole be retained under parole supervision or in custody for a period longer than 15 years from the date of his or her initial parole. (6) The Department of Corrections and Rehabilitation shall meet with each inmate at least 30 days prior to his or her good time release date and shall provide, under guidelines specified by the parole authority, the conditions of parole and the length of parole up to the maximum period of time provided by law. The inmate has the right to reconsideration of the length of parole and conditions thereof by the parole authority. The department or the Board of Parole Hearings may impose as a condition of parole that a prisoner make payments on the prisoner'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 state prisoner released on parole rests with the Board of Parole Hearings, except for any escaped state prisoner or any state prisoner released prior to his or her scheduled release date who should be returned to custody, and Section 3060 shall apply. (9) It is the intent of the Legislature that efforts be made with respect to persons subject to Section 290.011 who are on parole to engage them in treatment. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a term of parole shall be as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 255. Section 3000.1 of the Penal Code is amended to read: 3000.1. (a) In the case of any inmate sentenced under Section 1168 for any offense of first or second degree murder with a maximum term of life imprisonment, the period of parole, if parole is granted, shall be the remainder of the inmate's life or, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, the term of parole shall be as provided in the applicable rule or rules. (b) Notwithstanding any other provision of law, when any person referred to in subdivision (a) has been released on parole from the state prison, and has been on parole continuously for seven years in the case of any person imprisoned for first degree murder, and five years in the case of any person imprisoned for second degree murder, since release from confinement, the board shall, within 30 days, discharge that 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 transmit a copy of it to the parolee. (c) In the event of a retention on parole, the parolee shall be entitled to a review by the board each year thereafter. (d) There shall be a hearing as provided in Sections 3041.5 and 304l.7 within 12 months of the date of any revocation of parole to consider the release of the inmate on parole, and notwithstanding the provisions of paragraph (2) of subdivision (b) of Section 3041.5, there shall be annual parole consideration hearings thereafter, unless the person is released or otherwise ineligible for parole release. The panel or board shall release the person within one year of the date of the revocation unless it determines that the circumstances and gravity of the parole violation are such that consideration of the public safety requires a more lengthy period of incarceration or unless there is a new prison commitment following a conviction. (e) The provisions of Section 3042 shall not apply to any hearing held pursuant to this section. SEC. 256. Section 3001 of the Penal Code is amended to read: 3001. (a) Notwithstanding any other provision of law, when any person referred to in paragraph (1) of subdivision (b) of Section 3000 who was not imprisoned for committing a violent felony, as defined in subdivision (c) of Section 667.5, has been released on parole from the state prison, and has been on parole continuously for one year since release from confinement, within 30 days, that person shall be discharged from parole, unless the Department of Corrections and Rehabilitation recommends to the Board of Parole Hearings that the person be retained on parole and the board, for good cause, determines that the person will be retained. Notwithstanding any other provision of law, when any person referred to in paragraph (1) of subdivision (b) of Section 3000 who was imprisoned for committing a violent felony, as defined in subdivision (c) of Section 667.5, has been released on parole from the state prison for a period not exceeding three years and has been on parole continuously for two years since release from confinement, or has been released on parole from the state prison for a period not exceeding five years and has been on parole continuously for three years since release from confinement, the department shall discharge, within 30 days, that person from parole, unless the department recommends to the board that the person be retained on parole and the board, for good cause, determines that the person will be retained. The board shall make a written record of its determination and the department shall transmit a copy thereof to the parolee. (b) Notwithstanding any other provision of law, when any person referred to in paragraph (2) of subdivision (b) of Section 3000 has been released on parole from the state prison, and has been on parole continuously for three years since release from confinement, the board shall discharge, within 30 days, the person from parole, unless the board, for good cause, determines that the person will be retained on parole. The board shall make a written record of its determination and the department shall transmit a copy thereof to the parolee. (c) Notwithstanding any other provision of law, when any person referred to in paragraph (3) of subdivision (b) of Section 3000 has been released on parole from the state prison, and has been on parole continuously for six years since release from confinement, the board shall discharge, within 30 days, the person from parole, unless the board, for good cause, determines that the person will be retained on parole. The board shall make a written record of its determination and the department shall transmit a copy thereof to the parolee. (d) In the event of a retention on parole, the parolee shall be entitled to a review by the parole authority each year thereafter until the maximum statutory period of parole has expired. (e) The amendments to this section made during the 1987-88 Regular Session of the Legislature shall only be applied prospectively and shall not extend the parole period for any person whose eligibility for discharge from parole was fixed as of the effective date of those amendments. (f) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a term of parole shall be as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 257. Section 3046 of the Penal Code is amended to read: 3046. (a) No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following: (1) A term of at least seven calendar years. (2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole. (3) A term proposed by the California Sentencing Commission, upon the operative date of the applicable rule or rules. (b) If two or more life sentences are ordered to run consecutively to each other pursuant to Section 669, no prisoner so imprisoned may be paroled until he or she has served the term specified in subdivision (a) on each of the life sentences that are ordered to run consecutively. (c) The Board of Parole Hearings shall, in considering a parole for a prisoner, consider all statements and recommendations which may have been submitted by the judge, district attorney, and sheriff, pursuant to Section 1203.01, or in response to notices given under Section 3042, and recommendations of other persons interested in the granting or denying of the parole. The board shall enter on its order granting or denying parole to these prisoners, the fact that the statements and recommendations have been considered by it. SEC. 258. Section 3049 of the Penal Code is amended to read: 3049. (a) In all other cases not heretofore provided for, no prisoner sentenced prior to July 1, 1977 may be paroled until he has served the minimum term of imprisonment provided by law for the offense of which he was convicted, except that in cases where the prisoner was serving a sentence on December 31, 1947, and in which the minimum term of imprisonment is more than one year, he may be paroled at any time after the expiration of one-half of the minimum term, with benefit of credits, but in no case shall he be paroled until he has served one calendar year; provided, that any prisoner, received on or after January 1, 1948, at any state prison or institution under the jurisdiction of the Department of Corrections and Rehabilitation, whose minimum term of imprisonment is more than one year, may be paroled at any time after the expiration of one-third of the minimum term. In all other cases he may be paroled at any time after he has served the minimum term prescribed by law. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person to whom this section applies shall have a parole term as provided in the applicable sentencing rules. SEC. 259. Section 3057 of the Penal Code is amended to read: 3057. (a) Confinement pursuant to a revocation of parole in the absence of a new conviction and commitment to prison under other provisions of law, shall not exceed 12 months, except as provided in subdivision (c) or (e). (b) Upon completion of confinement pursuant to parole revocation without a new commitment to prison, the inmate shall be released on parole for a period which shall not extend beyond that portion of the maximum statutory period of parole specified by Section 3000 which was unexpired at the time of each revocation. (c) Notwithstanding the limitations in subdivision (a) and in Section 3060.5 upon confinement pursuant to a parole revocation, the parole authority may extend the confinement pursuant to parole revocation for a maximum of an additional 12 months for subsequent acts of misconduct committed by the parolee while confined pursuant to that parole revocation. Upon a finding of good cause to believe that a parolee has committed a subsequent act of misconduct and utilizing procedures governing parole revocation proceedings, the parole authority may extend the period of confinement pursuant to parole revocation as follows: (1) not more than 180 days for an act punishable as a felony, whether or not prosecution is undertaken, (2) not more than 90 days for an act punishable as a misdemeanor, whether or not prosecution is undertaken, and (3) not more than 30 days for an act defined as a serious disciplinary offense pursuant to subdivision (a) of Section 2932. (d) (1) Except for parolees specified in paragraph (2), any revocation period imposed under subdivision (a) may be reduced in the same manner and to the same extent as a term of imprisonment may be reduced by worktime credits under Section 2933. Worktime credit must be earned and may be forfeited pursuant to the provisions of Section 2932.(e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person to whom this section applies shall be recommitted as provided in the applicable sentencing rules.Worktime credit forfeited shall not be restored. (2) The following parolees shall not be eligible for credit under this subdivision: (A) Parolees who are sentenced under Section 1168 with a maximum term of life imprisonment. (B) Parolees who violated a condition of parole relating to association with specified persons, entering prohibited areas, attendance at parole outpatient clinics, or psychiatric attention. (C) Parolees who were revoked for conduct described in, or that could be prosecuted under any of the following sections, whether or not prosecution is undertaken: Section 189, Section 191.5, subdivision (a) or paragraph (3) of subdivision (c) of Section 192, Section 203, 207, 211, 215, 217.1, or 220, subdivision (b) of Section 241, Section 244, paragraph (1) or (2) of subdivision (a) of Section 245, paragraph (2) or (6) of subdivision (a) of Section 261, paragraph (1) or (4) of subdivision (a) of Section 262, Section 264.1, subdivision (c) or (d) of Section 286, Section 288, subdivision (c) or (d) of Section 288a, subdivision (a) of Section 289, 347, or 404, subdivision (a) of Section 451, Section 12020, 12021, 12022, 12022.5, 12022.53, 12022.7, 12022.8, 12025, or 12560, or Section 664 for any attempt to engage in conduct described in or that could be prosecuted under any of the above-mentioned sections. (D) Parolees who were revoked for any reason if they had been granted parole after conviction of any of the offenses specified in subparagraph (C). (E) Parolees who the parole authority finds at a revocation hearing to be unsuitable for reduction of the period of confinement because of the circumstances and gravity of the parole violation, or because of prior criminal history. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person to whom this section applies shall be recommitted as provided in the applicable sentencing rules. SEC. 260. Section 4019 of the Penal Code is amended to read: 4019. (a) The provisions of this section shall apply in all of the following cases: (1) When a prisoner is confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding. (2) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp as a condition of probation after suspension of imposition of a sentence or suspension of execution of sentence, in a criminal action or proceeding. (3) When a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp for a definite period of time for contempt pursuant to a proceeding, other than a criminal action or proceeding. (4) When a prisoner is confined in a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp following arrest and prior to the imposition of sentence for a felony conviction. (b) Subject to the provisions of subdivision (d), for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. (c) For each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp. (d) Nothing in this section shall be construed to require the sheriff, chief of police, or superintendent of an industrial farm or road camp to assign labor to a prisoner if it appears from the record that the prisoner has refused to satisfactorily perform labor as assigned or that the prisoner has not satisfactorily complied with the reasonable rules and regulations of the sheriff, chief of police, or superintendent of any industrial farm or road camp. (e) No deduction may be made under this section unless the person is committed for a period of six days or longer. (f) It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, an inmate to whom this section applies shall accrue credit as provided in the applicable sentencing rules. SEC. 261. Title 6.5 (commencing with Section 4950) is added to Part 3 of the Penal Code, to read: TITLE 6.5. SENTENCING COMMISSION 4950. The Legislature hereby finds and declares all of the following: (a) There are more than 1,000 felony sentencing laws and more than 100 felony sentence enhancements across the California codes. (b) California courts have characterized California's sentencing laws as "labyrinthine procedures," "mind-numbing, complicated, and, by virtue of continued legislative tinkering, not likely to soon become any easier to apply," and a "legislative monstrosity, which is bewildering in its complexity." The condition of California's sentencing laws has lead to an unacceptably high rate of reversal on appeal due to sentencing errors.(b)(c) Although determinate sentencing was designed to create uniformity, today sentences for similar crimes can vary significantly by county and courtroom depending on the charges and enhancements filed by the district attorneys and the sentencing choices made by judges regarding probation, jail, or prison. Outcomes for offenders also vary depending upon availability of correctional resources at the local level, creating inequities along county lines.(c)(d) States with sentencing commissions have reduced overall crime rates by increasing penalties for the most dangerous offenders and expanding options for community-based sanctions for certain low-level, nonviolent offenders.(d)(e) California currently lacks a reliable and comprehensive system for collecting and analyzing data related to current and historical sentencing practices. 4951. (a) In enacting this title, it is the intent of the Legislature to enhance public safety, promote effective crime reduction strategies, base California's sentencing practices on principles of fairness, justice, and accountability, and ensure that public resources and taxpayer dollars are expended in a way that most successfully protects the public from crime and reduces criminal recidivism. (b) It is the further intent of the Legislature to create the California Sentencing Commission comprised of individuals who will provide a reasoned, balanced, and independent perspective to achieve sentencing practices that are grounded in data and based on sound policy. (c) The general purposes of rules that become operative pursuant to this title are the following: (1) In decisions affecting the sentencing or paroling of individual offenders, all of the following: (A) To render sentences in all cases within a range of severity proportionate to the gravity of offenses, the harms done to crime victims, and the blameworthiness of offenders. (B) When reasonably feasible, to achieve offender rehabilitation, general deterrence, incapacitation of dangerous offenders, restoration of crime victims and communities, and reintegration of offenders into the law-abiding community, provided these goals are pursued within the boundaries of proportionality in subparagraph (A). (C) To render sentences no more severe than necessary to achieve the applicable purposes in subparagraphs (A) and (B). (2) In matters affecting the administration of the sentencing system, all of the following: (A) To preserve judicial discretion to individualize sentences within a framework of law. (B) To produce sentences that are uniform in their reasoned pursuit of the purposes in paragraph (1). (C) To eliminate inequities in sentencing across population groups, including geographic regions. (D) To encourage the use of intermediate sanctions consistent with the protection of public safety. (E) To ensure that adequate resources are available for carrying out sentences imposed, and that rational priorities are established for the use of those resources. (F) To ensure that all criminal sanctions are administered effectively and that incarcerated offenders are provided constitutionally sufficient levels of subsistence, personal safety, medical and mental health care, and opportunities to rehabilitate themselves. (G) To promote research on sentencing policy and practices, including assessments of the effectiveness of criminal sanctions as measured against their purposes, and the effects of criminal sanctions upon families and communities. (H) To increase the transparency of the sentencing and corrections system, its accountability to thepubicpublic , and the legitimacy of its operations as perceived by all affected communities. 4952. (a) There is hereby established the California Sentencing Commission, a permanent, independent agency in state government. (b) The sentencing commission shall do all of the following: (1) Develop rules as provided in Sections 4954 and 4955. (2) Collaborate over time with the trial and appellate courts in the development of a common law of sentencing within the legislative framework. (3) Provide a balanced forum for statewide policy development, information development, research, and planning concerning criminal sentences and their effects. (4) Assemble and draw upon sources of knowledge, experience, and community values from all sectors of the criminal justice system, from the public at large, and from other jurisdictions. (5) Perform its work and provide explanations for its actions consistent with the purposes of the sentencing system as set forth in subdivision (c) of Section 4951. (6) Ensure that all these efforts take place on a permanent and ongoing basis, with the expectation that the sentencing system strives continually to evaluate itself, evolve, and improve. (7) Create a sentencing structure that is readily understood by the courts, the parties, and the public. 4953. (a) The commission shall be composed of 20 members, one of whom shall be the Secretary of the Department of Corrections and Rehabilitation, or his or her designee. One member shall be the Chief Justice of the California Supreme Court, or his or her designee, who shall chair the commission. One member shall be a sitting or retired appellate court justice appointed by the Chief Justice of the California Supreme Court. Two members shall be sitting or retired trial court judges appointed by the Chief Justice of the California Supreme Court. One member shall be the Attorney General. One member shall be a California district attorney appointed by the Senate Committee on Rules. One member shall be a county sheriff appointed by the Speaker of the Assembly. One member shall be a county mental health director appointed by the Speaker of the Assembly. One member shall be an attorney with legal expertise in litigating conditions of confinement on behalf of inmates, appointed by the Senate Committee on Rules. One member shall be a legal scholar with expertise in sentencing law and policy, appointed by the Senate Committee on Rules. One member shall be an academic expert in criminal justice policy appointed by the Speaker of the Assembly. Four members, a public defender, a chief probation officer, a rank and file representative with a minimum of five years experience working in a state adult correctional facility, and a representative of crime victims, shall be appointed by the Governor. (b) The President pro Tempore of the Senate, the Minority Floor Leader of the Senate, the Speaker of the Assembly, and the Minority Floor Leader of the Assembly shall serve on the commission as ex officio, nonvoting members. (c) On July 1, 2011, the terms of one sitting or retired trial court judge, the probation officer, the public defender, the district attorney, and the sheriff shall expire. On July 1, 2012, the terms of the sitting or retired appellate court justice, crime victims' representative, the attorney with expertise in litigating terms of confinement on behalf of inmates, and the county mental health director shall expire. On July 1, 2013, the terms of the other sitting retired trial court judge, the rank and file representative, the legal scholar, and the expert in criminal justice shall expire. Successor members shall hold office for terms of three years, each term to commence on the expiration date of the predecessor. Any appointment to a vacancy that occurs for any reason other than the expiration of the term shall be for the remainder of the unexpired term. Members are eligible for reappointment. (d) The members of the commission shall serve without compensation, but shall be reimbursed for all necessary expenses actually incurred in the performance of their duties. (e) The commission shall establish the following standing committees: (1) Community corrections. (2) Sentencing policy and practices. (3) Post custodial corrections, including parole policies and practices. (4) Data collection and analysis. (5) Victims' interests. (f) The commission shall establish ad hoc committees, as it deems necessary. 4954. (a) The California Sentencing Commission shall perform the following initial duties: (1) No later than June 1, 2011, the commission shall promulgate and present to the Legislature an initial set of sentencing and parole rules pursuant to Section 4955. If the Legislature does not reject the rules presented to it by the commission before January 1 of the following year by a statute passed by atwo-thirdsmajority vote of the Legislature and signed by the Governor, the rules shall become operative on that date. (2) No later than December 31, 2012, the commission shall prepare a report to the Legislature and the Governor setting forth recommended statutory changes in statutory provisions added or affected by initiative measures necessary to conform those provisions to the requirements of this article. (b) The California Sentencing Commission shall perform the following ongoing duties: (1) Promulgate and periodically revise sentencing rules for those crimes and penalties that the Legislature has delegated authority to the commission. (2) Promulgate and periodically revise parole rules in those areas for which the Legislature has delegated authority to the commission. (3) Make recommendations to the Legislature for additional statutory changes to criminal laws established by voter initiative. (4) Make recommendations to the Legislature for additional authority to make changes to other criminal laws established by the Legislature, or to make additional recommendations regarding criminal laws established by voter initiative subsequent to the enactment of this act. (5) Prepare population projections for the correctional system whenever new sentencing or parole rules, laws, or initiatives affecting criminal law and punishment are proposed. (6) Serve as a resource and information center with respect to state and local sentencing policy. (7) Develop information systems to track criminal cases entering the court system; the effects of offense, offender, victim, and case-processing characteristics upon sentences imposed and served; sentencing patterns for the state as a whole and for geographic regions within the state; data on the incidence of and reasons for sentence revocations; and other matters found by the commission to have important bearing on the operation of the sentencing and corrections system. (8) Collect information on, and, where necessary, conduct periodic surveys of, the correctional populations and resources of the state. (9) Assemble information on the effectiveness of sentences imposed and served in meeting the purposes set forth in Section 4951. (10) Investigate the existence of discrimination or inequities in the sentencing and corrections system across geographic areas and population groups, including groups defined by race, ethnicity, and gender, and search for the means to eliminate such discrimination or inequities. (c) Any sentencing or parole rule or rules promulgated by the commission shall take effect as follows: (1) Rules shall take effect on January 1 of the year immediately following the year the rules are promulgated if the commission presents the rules to the Legislature on or before June 1, and the Legislature does not reject the rules by a statute passed by atwo-thirdsmajority vote of each house of the Legislature and signed by the Governor . (2) Rules shall take effect on January 1 of the year subsequent to the year following the year the rules are promulgated if the commission presents the rules to the Legislature after June 1, and the Legislature does not reject the rules by a statute passed by atwo-thirdsmajority vote of each house of the Legislature and signed by the Governor . (3) Rules rejected by the Legislature pursuant to this subdivision shall have no effect of law. (d) In discharging its responsibilities under this section the commission may do any of the following: (1) Collect information on all correctional populations in the state. (2) Survey correctional resources across state and local governments. (3) Conduct research into crime rates, criminal cases entering the court system, sentences imposed and served for particular offenses, and sentencing patterns for the state as a whole and for geographic regions within the state. (4) Consult available research and data on the current effectiveness of sentences imposed and served in the jurisdiction as measured against the purposes set forth in Section 4951. (5) Study the experiences of other jurisdictions with sentencing commissions. (6) Advise the Legislature of any needed reallocations or additions in correctional resources. (7) Recommend to the Legislature any statutory changes needed and recommend to the Judicial Council any changes needed in the rules of criminal procedure, to best effectuate the sentencing rules promulgated by the commission. (8) Identify and prioritize areas where necessary data and research are lacking concerning the operation of the sentencing system, and recommend to the Legislature means by which the commission or other state agencies may be empowered to address those needs. (e) The commission shall take steps to facilitate the implementation of rules promulgated and operational pursuant to this act. In performing this function, the commission may do any or all of the following: (1) Develop manuals, forms, and other controls to attain greater consistency in the contents and preparation of presentence reports and sentence reports. (2) Provide training and assistance to judges, prosecutors, defense attorneys, probation officers, parole officers, and other personnel. (3) Provide information to government officials, government agencies, the courts, the bar, and the public on sentencing rules, sentencing policies, and sentencing practices. (4) Produce as needed, manuals, users' guides, worksheets, summaries of case law, Internet resources, and other materials the commission deems useful to explain and ease the proper application of the rules. (f) On or before June 1, 2011 and annually thereafter, the commission shall publish a report to the Legislature and the public on the commission's activities, including data collection and research, reports of any special research undertaken by the commission, and other reports as directed by the Legislature. (g) The commission shall perform any other functions that may be required by law or that may be necessary to carry out the provisions of this section. (h) The commission shall develop a correctional population forecasting model to project future sentencing outcomes under existing or proposed legislation, voter initiatives, court orders, administrative actions, and sentencing and parole rules. The commission shall use the model to project sentencing outcomes under existing legislation, voter initiatives, court orders, administrative actions, and sentencing and parole rules. The commission shall also use the model whenever new legislation or voter initiatives affecting criminal punishment are introduced or new or amended sentencing rules are formally promulgated, and shall generate projections of sentencing outcomes if the proposed legislation or initiative or sentencing rule were to take effect. The commission shall make and publish a report to the Legislature and the public with each set of projections generated under this subdivision. Projections under this model shall include anticipated demands upon prisons, jails, and community corrections programs. Whenever the model projects correctional needs exceeding available resources at the state or local level, the commission's report shall include estimates of new facilities, personnel, and funding that would be required to accommodate those needs. The model shall be designed to project future demographic patterns in sentencing. The commission shall refine the model as needed in light of its past performance and the best available information. (i) In the event a court of competent jurisdiction orders a reduction in the inmate population, the commission shall develop recommendations on how to best comply with the court's order. Recommendations developed under this subdivision shall be promulgated as expeditiously as possible. (j) Nothing in this title limits the authority of the Legislature, or the people through the initiative process, to enact legislation that repeals or amends any rule promulgated by the commission that becomes operative. 4955. (a) The commission shall abide by the following standards in promulgating rules pursuant to Section 4954: (1) The commission shall establish categories of offenses within the bounds of the authority delegated to it by the Legislature. In establishing categories of offenses, the commission shall endeavor to place offenses with similar attributes in the same category. (2) Sentencing rules shall set forth presumptive sentences and nonexclusive lists of aggravating and mitigating factors that may be used as grounds for departure from presumptive sentences. Sentencing rules shall provide that a departure sentence may not be based on any factor necessarily comprehended in the elements of the offenses of which the offender has been convicted, and no finding of fact may be used more than once as a ground for departure. (3) (A) Sentencing rules shall reflect the principle that incarceration is appropriate for those who commit a violent offense and offenders who have a record indicating a pattern of regular or increasingly serious criminal conduct. (B) The commission shall consider the statutory penalties that existed as of December 31, 2007, prescribed for a similar offender committing a similar offense. (C) Presumptive sentences shall be proportionate to the gravity of offenses, the harms done to crime victims, the potential deterrent effect of the penalty, and the blameworthiness of offenders, based upon the commission's collective judgment of appropriate punishments for ordinary cases of the kind governed by each presumptive sentence. Ranges of incarceration terms should be sufficiently narrow to express meaningful distinctions across categories of cases on grounds of proportionality, to promote reasonable uniformity in sentences imposed and served. (4) The commission shall determine the best formats for expression of presumptive sentences and other rules, which may include one or more grids, narrative statements, or other means of expression. (5) Rules shall be as simple in their presentation and use as is feasible. (6) Rules shall include nonbinding commentary to explain the commission's reasoning underlying each rule, and to assist sentencing courts and other actors in the sentencing system in the use of the rules. (7) Rules shall address the use of prison, jail, probation, community sanctions, economic sanctions, parole, and other sanction types as found necessary by the commission. (b) Except as provided in this article, the commission shall give no weight to the following factors when promulgating sentencing rules: (1) An offender's race, ethnicity, sexual orientation, national origin, religion, and political affiliation or belief. (2) Alleged criminal conduct on the part of the offender other than the current offenses of conviction and, consistent with this article, prior convictions and juvenile adjudications. (c) The commission shall consider the following with respect to the use of criminal history in promulgating sentencing rules: (1) The commission shall consider whether to include the criminal histories of defendants as a factor in the determination of presumptive sentences, as an aggravating factor enumerated as a ground for departure from a presumptive sentence, or as a component of other presumptive provisions. (2) If the commission elects to include the criminal histories of defendants in promulgating sentencing rules, the commission shall fix limitations periods after which offenders' prior convictions and juvenile adjudications should not be taken into account to enhance sentence. (3) The commission shall monitor the effects of sentencing rules concerning criminal history, any legislation incorporating offenders' criminal history as a factor relevant to sentencing, and the consideration of criminal history by sentencing courts. The commission shall give particular attention to the question of whether the use of criminal history as a sentencing factor contributes to punishment disparities among racial and ethnic minorities, or other disadvantaged groups. (d) The Legislature hereby declares that the best effectuation of the purposes of sentencing will often turn upon the circumstances of individual cases. The rules shall permit sentencing courts to individualize sentencing decisions in light of the purposes in Section 4951, and the rules shall not foreclose the individualization of sentences in light of those considerations. 4956. (a) Upon request from the commission, each agency and department of state and local government shall make its services, equipment, personnel, facilities, and information available to the greatest practicable extent to the commission in theexecutiveexecution of its functions. Information that is privileged under state or federal law is exempted from this section. (b) Upon request from the commission, law enforcement agencies in the state, including parole officers, shall supply arrest and criminal history records to the commission. County probation departments shall provide copies of presentence reports to the commission.(c) Sentencing courts shall complete and supply a sentence report to the commission following the sentencing decision in every case. The form of the sentence report shall be as designed by the commission.(c) The commission shall make recommendations to the Legislature regarding additional data or information beyond what is obtained pursuant to subdivisions (a) and (b) that may be necessary or would assist in the execution of its functions. (d) Any information obtained by the commission pursuant to subdivision (a) is confidential, and shall be maintained in a manner that meets the highest standards of privacy and shall not be disclosed other than for the purpose for which it was acquired. (e) The commission shall have the authority to enter partnerships or joint agreements with organizations and agencies from this and other jurisdictions, including academic departments, private associations, and other sentencing commissions, to perform research needed to carry out its duties. 4957. Sentencing rules adopted by the commission, which become operative, shall be used by a sentencing court to determine the sentence to be imposed as provided in this title. The sentencing court's determination shall include all of the following: (a) A determination about whether to impose a sentence of probation, a fine, a term of incarceration, an intermediate sanction, or some combination thereof. (b) A determination as to the length of a term of probation, if any. (c) A determination as to the amount of fine, if any. (d) A determination as to the length of incarceration, if any. (e) If the sentence includes a term of incarceration, a determination as to whether to impose a term of post-release supervision and the length of the term of post-release supervision, if any. (f) A determination as to the type and length of intermediate sanction, if any. (g) A determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively. (h) Other conditions of sentence, such as community service, participation in treatment programs, or participation in community corrections programs, if permitted under the applicable sentencing rules. 4958. If an offense is subject to sentencing rules operative pursuant to this title, the following shall apply: (a) Sentences for that offense shall be imposed in accordance with the sentencing rules of the commission. (b) Sentencing rules shall prevail over Sections 1170, 1170.1, and 1170.11. (c) Any statutory provision that requires a sentencing court to consider a factor as a circumstance in aggravation shall not apply to a sentence imposed under this title. However, this section shall not prohibit the sentencing commission from providing that those facts or circumstances shall be taken into consideration in determining the sentence imposed. (d) Except as provided in subdivision (c), any statutory enhancement for which an additional or different term of imprisonment is authorized shall apply unless that provision has been made subordinate to this title. (e) Nothing in this title shall preclude the application of terms of imprisonment established by any statutory provisions added or amended by initiative acts. (f) A defendant shall be sentenced in accordance with the sentencing rules in effect on the date the charged offense was committed. 4959. (a) The commission shall appoint an executive director who shall be exempt from civil service. (b) The administrative duties of the commission shall be conducted by commission staff physically sited in the Administrative Office of the Courts (AOC). All its decisions, analyses, recommendations, and other duties shall be independent of the AOC and shall not reflect any position of the AOC or be represented as those of the AOC. (c) For the purposes of expenditures for the support of the commission, including the expenses of the members of the commission, the commission shall be deemed to be within the judicial branch of state government, but the commission shall not be subject to the control or direction of any officer or employee of the judicial branch except in connection with the appropriation of funds approved by the Legislature. (d) The commission is a criminal justice agency within the meaning of Section 13101. (e) The commission's proceedings shall be subject to the open meeting requirements of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code). 4960. (a) The commission may adopt rules and regulations to implement this title. (b) (1) All sentencing rules shall be adopted by atwo-thirdsmajority vote of the commission. (2) Sentencing rules are not subject to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code). SEC. 262. Section 12022 of the Penal Code is amended to read: 12022. (a) (1) Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm. (2) Except as provided in subdivision (c), and notwithstanding subdivision (d), if the firearm is an assault weapon, as defined in Section 12276 or Section 12276.1, or a machinegun, as defined in Section 12200, or a .50 BMG rifle, as defined in Section 12278, the additional and consecutive term described in this subdivision shall be three years whether or not the arming is an element of the offense of which the person was convicted. The additional term provided in this paragraph shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with an assault weapon or machinegun, or a .50 BMG rifle, whether or not the person is personally armed with an assault weapon or machinegun, or a .50 BMG rifle. (b) (1) Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense. (2) If the person described in paragraph (1) has been convicted of carjacking or attempted carjacking, the additional term shall be one, two, or three years. (3) When a person is found to have personally used a deadly or dangerous weapon in the commission of a felony or attempted felony as provided in this subdivision and the weapon is owned by that person, the court shall order that the weapon be deemed a nuisance and disposed of in the manner provided in Section 12028. (c) Notwithstanding the enhancement set forth in subdivision (a), any person who is personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. (d) Notwithstanding the enhancement set forth in subdivision (a), any person who is not personally armed with a firearm who, knowing that another principal is personally armed with a firearm, is a principal in the commission of an offense or attempted offense specified in subdivision (c), shall be punished by an additional and consecutive term of imprisonment in the state prison for one, two, or three years. (e) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one, single enhancement. (f) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in subdivision (c) or (d) in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 263. Section 12022.1 of the Penal Code is amended to read: 12022.1. (a) For the purposes of this section only: (1) "Primary offense" means a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked. In cases where the court has granted a stay of execution of a county jail commitment or state prison commitment, "primary offense" also means a felony offense for which a person is out of custody during the period of time between the pronouncement of judgment and the time the person actually surrenders into custody or is otherwise returned to custody. (2) "Secondary offense" means a felony offense alleged to have been committed while the person is released from custody for a primary offense. (b) Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court. (c) The enhancement allegation provided in subdivision (b) shall be pleaded in the information or indictment which alleges the secondary offense, or in the information or indictment of the primary offense if a conviction has already occurred in the secondary offense, and shall be proved as provided by law. The enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing or grand jury hearing. (d) Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent. (e) If the person is convicted of a felony for the primary offense, is sentenced to state prison for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be consecutive to the primary sentence. (f) If the person is convicted of a felony for the primary offense, is granted probation for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be enhanced as provided in subdivision (b). (g) If the primary offense conviction is reversed on appeal, the enhancement shall be suspended pending retrial of that felony. Upon retrial and reconviction, the enhancement shall be reimposed. If the person is no longer in custody for the secondary offense upon reconviction of the primary offense, the court may, at its discretion, reimpose the enhancement and order him or her recommitted to custody. (h) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 264. Section 12022.2 of the Penal Code is amended to read: 12022.2. (a) Any person who, while armed with a firearm in the commission or attempted commission of any felony, has in his or her immediate possession ammunition for the firearm designed primarily to penetrate metal or armor, shall upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony, be punished by an additional term of 3, 4, or 10 years. The court shall order the middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record at the time of the sentence. (b) Any person who wears a body vest in the commission or attempted commission of a violent offense, as defined in subdivision (b) of Section 12021.1, shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one, two, or five years. The court shall order the middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record at the time of the sentence. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) As used in this section, "body vest" means any bullet-resistant material intended to provide ballistic and trauma protection for the wearer. SEC. 265. Section 12022.3 of the Penal Code is amended to read: 12022.3. For each violation or attempted violation of Section 261, 262, 264.1, 286, 288, 288a, or 289, and in addition to the sentence provided, any person shall receive the following: (a) A 3-, 4-, or 10-year enhancement if the person uses a firearm or a deadly weapon in the commission of the violation. (b) A one-, two-, or five-year enhancement if the person is armed with a firearm or a deadly weapon. The court shall order the middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record at the time of the sentence. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 266. Section 12022.4 of the Penal Code is amended to read: 12022.4. (a) Any person who, during the commission or attempted commission of a felony, furnishes or offers to furnish a firearm to another for the purpose of aiding, abetting, or enabling that person or any other person to commit a felony shall, in addition and consecutive to the punishment prescribed by the felony or attempted felony of which the person has been convicted, be punished by an additional term of one, two, or three years in the state prison. The court shall order the middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record at the time of the sentence. The additional term provided in this section shall not be imposed unless the fact of the furnishing is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 267. Section 12022.5 of the Penal Code is amended to read: 12022.5. (a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense. (b) Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section 12276 or Section 12276.1, or a machinegun, as defined in Section 12200, in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years. (c) Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section. (d) Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used, or for murder if the killing is perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death. (e) When a person is found to have personally used a firearm, an assault weapon, a machinegun, or a .50 BMG rifle, in the commission of a felony or attempted felony as provided in this section and the firearm, assault weapon, machinegun, or a .50 BMG rifle, is owned by that person, the court shall order that the firearm be deemed a nuisance and disposed of in the manner provided in Section 12028. (f) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one, single enhancement. (g) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 268. Section 12022.53 of the Penal Code is amended to read: 12022.53. (a) This section applies to the following felonies: (1) Section 187 (murder). (2) Section 203 or 205 (mayhem). (3) Section 207, 209, or 209.5 (kidnapping). (4) Section 211 (robbery). (5) Section 215 (carjacking). (6) Section 220 (assault with intent to commit a specified felony). (7) Subdivision (d) of Section 245 (assault with a firearm on a peace officer or firefighter). (8) Section 261 or 262 (rape). (9) Section 264.1 (rape or sexual penetration in concert). (10) Section 286 (sodomy). (11) Section 288 or 288.5 (lewd act on a child). (12) Section 288a (oral copulation). (13) Section 289 (sexual penetration). (14) Section 4500 (assault by a life prisoner). (15) Section 4501 (assault by a prisoner). (16) Section 4503 (holding a hostage by a prisoner). (17) Any felony punishable by death or imprisonment in the state prison for life. (18) Any attempt to commit a crime listed in this subdivision other than an assault. (b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. (c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. (d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. (e) (1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of Section 186.22. (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d). (2) An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense. (f) Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d). (g) 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 found to come within the provisions of this section. (h) Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section. (i) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 or pursuant to Section 4019 or any other provision of law shall not exceed 15 percent of the total term of imprisonment imposed on a defendant upon whom a sentence is imposed pursuant to this section. (j) For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) 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. When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another enhancement provides for a greater penalty or a longer term of imprisonment. (k) When a person is found to have used or discharged a firearm in the commission of an offense that includes an allegation pursuant to this section and the firearm is owned by that person, a coparticipant, or a coconspirator, the court shall order that the firearm be deemed a nuisance and disposed of in the manner provided in Section 12028. () The enhancements specified in this section shall not apply to the lawful use or discharge of a firearm by a public officer, as provided in Section 196, or by any person in lawful self-defense, lawful defense of another, or lawful defense of property, as provided in Sections 197, 198, and 198.5. (m) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 269. Section 12022.55 of the Penal Code is amended to read: 12022.55. (a) Notwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 270. Section 12022.6 of the Penal Code is amended to read: 12022.6. (a) When any person takes, damages, or destroys any property in the commission or attempted commission of a felony, with the intent to cause that taking, damage, or destruction, the court shall impose an additional term as follows: (1) If the loss exceeds fifty thousand dollars ($50,000), the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of one year. (2) If the loss exceeds one hundred fifty thousand dollars ($150,000), the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of two years. (3) If the loss exceeds one million dollars ($1,000,000), the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of three years. (4) If the loss exceeds two million five hundred thousand dollars ($2,500,000), the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of four years. (b) In any accusatory pleading involving multiple charges of taking, damage, or destruction, the additional terms provided in this section may be imposed if the aggregate losses to the victims from all felonies exceed the amounts specified in this section and arise from a common scheme or plan. All pleadings under this section shall remain subject to the rules of joinder and severance stated in Section 954. (c) The additional terms provided in this section shall not be imposed unless the facts of the taking, damage, or destruction in excess of the amounts provided in this section are charged in the accusatory pleading and admitted or found to be true by the trier of fact. (d) This section applies to, but is not limited to, property taken, damaged, or destroyed in violation of Section 502 or subdivision (b) of Section 502.7. This section shall also apply to applicable prosecutions for a violation of Section 350, 653h, 653s, or 653w. (e) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (f) For the purposes of this section, the term "loss" has the following meanings: (1) When counterfeit items of computer software are manufactured or possessed for sale, the "loss" from the counterfeiting of those items shall be equivalent to the retail price or fair market value of the true items that are counterfeited. (2) When counterfeited but unassembled components of computer software packages are recovered, including, but not limited to, counterfeited computer diskettes, instruction manuals, or licensing envelopes, the "loss" from the counterfeiting of those components of computer software packages shall be equivalent to the retail price or fair market value of the number of completed computer software packages that could have been made from those components. (g) It is the intent of the Legislature that the provisions of this section be reviewed within 10 years to consider the effects of inflation on the additional terms imposed. For that reason, this section shall remain in effect only until January 1, 2008, and as of that date is repealed unless a later enacted statute, which is enacted before January 1, 2008, deletes or extends that date. SEC. 271. Section 12022.7 of the Penal Code is amended to read: 12022.7. (a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, "great bodily injury" means a significant or substantial physical injury. (g) This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense. (h) The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense. (i) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 272. 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. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules, except that no sentencing rule shall change any provision of this section that was specifically added by voter initiative. SEC. 273. Section 12022.8 of the Penal Code is amended to read: 12022.8. (a) Any person who inflicts great bodily injury, as defined in Section 12022.7, on any victim in a violation or attempted violation of paragraph (2), (3), or (6) of subdivision (a) of Section 261, paragraph (1) or (4) of subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288, subdivision (a) of Section 289, or sodomy or oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person as provided in Section 286 or 288a shall receive a five-year enhancement for each such violation in addition to the sentence provided for the felony conviction. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 274. Section 12022.85 of the Penal Code is amended to read: 12022.85. (a) Any person who violates one or more of the offenses listed in subdivision (b) with knowledge that he or she has acquired immune deficiency syndrome (AIDS) or with the knowledge that he or she carries antibodies of the human immunodeficiency virus at the time of the commission of those offenses, shall receive a three-year enhancement for each violation in addition to the sentence provided under those sections. (b) Subdivision (a) applies to the following crimes: (1) Rape in violation of Section 261. (2) Unlawful intercourse with a person under 18 years of age in violation of Section 261.5. (3) Rape of a spouse in violation of Section 262. (4) Sodomy in violation of Section 286. (5) Oral copulation in violation of Section 288a. (c) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (d) For purposes of proving the knowledge requirement of this section, the prosecuting attorney may use test results received under subdivision (c) of Section 1202.1 or subdivision (g) of Section 1202.6. SEC. 275. Section 12022.9 of the Penal Code is amended to read: 12022.9. (a) Any person who, during the commission of a felony or attempted felony, knows or reasonably should know that the victim is pregnant, and who, with intent to inflict injury, and without the consent of the woman, personally inflicts injury upon a pregnant woman that results in the termination of the pregnancy shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. The additional term provided in this subdivision shall not be imposed unless the fact of that injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. (c) Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187. SEC. 276. Section 12022.95 of the Penal Code is amended to read: 12022.95. (a) Any person convicted of a violation of Section 273a, who under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or injury that results in death, or having the care or custody of any child, under circumstances likely to produce great bodily harm or death, willfully causes or permits that child to be injured or harmed, and that injury or harm results in death, shall receive a four-year enhancement for each violation, in addition to the sentence provided for that conviction. Nothing in this paragraph shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 192. This section shall not apply unless the allegation is included within an accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (b) Alternatively, on or after the operative date of an applicable rule or rules proposed by the California Sentencing Commission, a person who violates this section shall be punished as provided in the applicable sentencing rules. SEC. 277. Any section of any act other than Assembly Bill 299 or Senate Bill 425 which is enacted by the Legislature during the 2007 calendar year that takes effect on or before January 1, 2008, and that amends, amends and renumbers, adds, repeals and adds, or repeals any one or more of the sections affected by this act, shall prevail over this act, whether this act is enacted prior to, or subsequent to, the enactment of that act. The repeal, or repeal and addition, of any article, chapter, part, title, or division of any code by this act shall not become operative if any section of any other act other than Assembly Bill 299 or Senate Bill 425 that is enacted by the Legislature during the 2007 calendar year and takes effect on or before January 1, 2008, amends, amends and renumbers, adds, repeals, or repeals and adds any section contained in that article, chapter, part, title, or division. SEC. 278. 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.