BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1844
                                                                  Page  1

          Date of Hearing:   April 20, 2010
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 1844 (Fletcher) - As Amended:  April 13, 2010
                       As Proposed to Be Amended in Committee
           

          SUMMARY  :  Enacts "Chelsea's Law", which increases penalties for  
          forcible sex acts against minors, creates a penalty of life  
          without the possibility of parole (LWOP) for specified sex acts  
          against minors, creates safe zones around parks, and mandates  
          lifetime parole for specified sex offenses.  Specifically,  this  
          bill  :  

          1)Provides for an increased penalty for assault of a person  
            under the age of 18 years of age with the intent to commit  
            lewd or lascivious acts, mayhem, rape, sodomy, oral  
            copulation, rape with a foreign object, or forcible acts of  
            sexual penetration from two, four, or six years to five, seven  
            or nine years in state prison.  

          2)Increases the punishment for rape by means of force, violence,  
            duress, menace, or fear of bodily injury of a child under the  
            age of 14 from three, six or eight years to 6, 12, or 16 years  
            in state prison.  

          3)Increases the punishment for rape by means of force, violence,  
            duress, menace, or fear of bodily injury of a minor between  
            the ages of 14 and 17 from three, six or eight years to 6, 9,  
            or 11 years in state prison.  

          4)Increases the punishment for an act of sodomy with another  
            person who is under 14 years of age 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  from three,  
            six, or eight years to 6, 12, or 16 years.

          5)Increases the punishment for any person who commits an act of  
            sodomy with another person who is a minor between the ages of  
            14 to 17 when the act is accomplished against the victim's  








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            will by means of force, violence, duress, menace, or fear of  
            immediate and unlawful bodily injury on the victim or another  
            person from three, six or eight years to 6, 9, or 11 years in  
            state prison. 

          6)Increases the penalty for 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 upon a victim who is under 14 years of age, 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 from five, seven, or nine years to 7,  
            13, or 17 years in state prison.

          7)Increases the penalty for 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 upon a victim who is between the ages of 14 and 17,  
            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, from five, seven or nine  
            years to 7, 10, or 12 years in state prison. 

          8)Increases the penalty for any person who willfully and lewdly  
            commits any lewd or lascivious act upon a child under the age  
            of 14 by use of force, violence, duress, menace, or fear of  
            immediate and unlawful bodily injury on the victim or another  
            person from three, six or eight years to 6, 12 or 16 years in  
            state prison.  

          9)Increases the penalty for any person who is a caretaker and  
            willfully and lewdly commits any lewd or lascivious act upon a  
            child under the age of 14 who is a dependent person by use of  
            force, violence, duress, menace, or fear of immediate and  
            unlawful bodily injury on the victim or another person from  
            three, six or eight years to 6, 9, or 11 years. 

          10)Increases the penalty for any person who commits an act of  
            oral copulation upon a person who is under 14 years of age,  
            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  
            from three, six, or eight years to 6, 12, or 16 years in state  
            prison.  









                                                                  AB 1844
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          11)Increases the penalty for any person who commits an act of  
            oral copulation upon a minor who is 14 years of age or older,  
            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  
            from three, six, or eight years to 6, 9, or 11 years.

          12)Increases the penalty of any person who, while voluntarily  
            acting in concert with another person, either personally or  
            aiding and abetting that other person, commits an act of oral  
            copulation upon a victim who is under 14 years of age, 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 from five, seven, or nine years to 7,  
            13, or 17 years in state prison.

          13)Increases the penalty of any person who, while voluntarily  
            acting in concert with another person, either personally or  
            aiding and abetting that other person, commits an act of oral  
            copulation upon a victim who is between the ages of 14 and 17,  
            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 from five, seven, or nine  
            years to 7, 10, or 12 years in state prison.

          14)Increases the penalty of any person who commits an act of  
            sexual penetration upon a child who is under 14 years of age,  
            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  
            from three, six, or eight years to 6, 12, or 16 years.

          15)Increases the penalty of any person who commits an act of  
            sexual penetration upon a minor who is between the ages of 14  
            to 17, 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 from three, six, or eight years to 6, 9, or 11 years in  
            state prison.

          16)States that any person who is required to register pursuant  
            to the Sex Offender Registration Act for a felony offense, who  
            enters any park where children regularly gather without  
            written permission, is guilty of a misdemeanor.









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             a)   If the person is on parole, written permission shall be  
               obtained from the person's parole officer.

             b)   If the person is not on parole, written permission shall  
               be obtained from the chief administrative official of the  
               park.

             c)   Punishment for a violation of this section shall be as  
               follows:

               i)     Upon a first conviction, by imprisonment in a county  
                 jail not exceeding six months, or by a fine not exceeding  
                 $500, or by both imprisonment and a fine.

               ii)    Upon a second conviction pursuant to this section,  
                 by imprisonment in a county jail for a period of not less  
                 than 10 days and not more than six months.  In addition  
                 to imprisonment, a violation of this section punishable  
                 pursuant to this paragraph may also be punished by a fine  
                 not exceeding $500.  A defendant sentenced pursuant to  
                 this paragraph shall not be released on probation,  
                 parole, or any other basis, until he or she has served at  
                 least 10 days imprisonment in a county jail.

               iii)   Upon a third or subsequent conviction pursuant to  
                 this section, by imprisonment in a county jail for a  
                 period of not less than 90 days and not more than six  
                 months and a fine not exceeding $500.  A defendant  
                 sentenced pursuant to this paragraph shall not be  
                 released on probation, parole, or any other basis, until  
                 he or she has served at least 90 days imprisonment in a  
                 county jail.

               iv)    This section does not preclude or prohibit  
                 prosecution under any other provision of law.

          17)States that any person who is convicted of rape, spousal  
            rape, rape in concert, lewd or lascivious acts, sexual  
            penetration, sodomy, oral copulation, or continuous sexual  
            abuse of a child upon a victim who is a child under 14 years  
            of age and who, in the commission of the offense, inflicted  
            physical injury resulting in a traumatic condition shall be  
            punished with imprisonment in state prison for LWOP.

          18)States that any person who is convicted of rape, spousal  








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            rape, rape in concert, lewd or lascivious acts, sexual  
            penetration, sodomy, oral copulation, or continuous sexual  
            abuse of a child, under one or more of the following  
            circumstances upon a victim who is a minor between the ages of  
            14 to 17 they shall be punished by imprisonment in state  
            prison for 25-years-to-life, if they commit the offense upon a  
            child under 14 years of age shall be punished by imprisonment  
            in the state prison for LWOP:

             a)   The defendant has been previously convicted of one of  
               the same offenses, including an offense committed in  
               another jurisdiction that includes all of the same  
               elements. 

             b)   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 commission  
               of the offense.

             c)   The defendant inflicted aggravated mayhem or torture on  
               the victim or another person in the commission of the  
               present offense.

             d)   The defendant committed the present offense during the  
               commission of a burglary of the first degree, with intent  
               to commit one of the sexual offenses listed.

             e)   The defendant committed the present offense in violation  
               of rape by a foreign object, sodomy in concert, or oral  
               copulation and, in the commission of that offense, any  
               person committed any act, as specified.

             f)   The defendant personally inflicted great bodily injury  
               on the victim or another person in the commission of the  
               present offense in violation of specified firearm  
               enhancements, or specified felony attempt enhancements.

             g)   The defendant personally used a dangerous or deadly  
               weapon or a firearm in the commission of the present  
               offense in violation of specified sections.

             h)   The defendant has been convicted in the present case or  
               cases of committing the sexual offenses against more than  
               one victim.








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             i)   The defendant engaged in the tying or binding of the  
               victim or another person in the commission of the present  
               offense.

             j)   The defendant administered a controlled substance to the  
               victim in the commission of the present offense, as  
               specified.

             aa)  The defendant committed rape by a foreign object, sodomy  
               in concert as specified, oral copulation in concert, as  
               specified, and commit specified factors.  

          19)States that any person who is convicted of rape by force or  
            fear, spousal rape, rape in concert, sexual penetration,  
            sodomy as specified, oral copulation as specified, under one  
            or more of the circumstances specified in the following "Group  
            1" or under two or more of the circumstances specified in the  
            following "Group 2" upon a victim who is a minor 14 years of  
            age or older shall be punished by imprisonment in the state  
            prison for LWOP.

             a)   Group 1 Circumstances (requires one of these factors to  
               receive LWOP):

               i)     The defendant has been previously convicted of one  
                 of the above specified sex offenses, including an offense  
                 committed in another jurisdiction that includes all of  
                 the elements.

               ii)    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 commission  
                 of the offense.


               iii)   The defendant inflicted aggravated mayhem or torture  
                 on the victim or another person in the commission of the  
                 present offense.

               iv)    The defendant committed the present offense during  
                 the commission of a burglary of the first degree, with  
                 intent to commit one of the sexual offenses listed.









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               v)     The defendant committed the present offense in  
                 violation of rape by a foreign object, sodomy in concert,  
                 or oral copulation and, in the commission of that  
                 offense, any person committed any act, as specified.

               vi)    The defendant personally inflicted great bodily  
                 injury on the victim or another person in the commission  
                 of the present offense in violation of specified firearm  
                 enhancements, or specified felony attempt enhancements.

             b)   Group 2 Circumstances (requiring two or more of these  
               factors to receive LWOP):  

               i)     The defendant kidnapped the victim of the present  
                 offense, as specified.

               ii)    The defendant committed the present offense during  
                 the commission of a burglary, as specified.

               iii)   The defendant personally used a dangerous or deadly  
                 weapon or a firearm in the commission of the present  
                 offense, as specified.

               iv)    The defendant has been convicted in the present case  
                 or cases of committing an offense specified against more  
                 than one victim.

               v)     The defendant engaged in the tying or binding of the  
                 victim or another person in the commission of the present  
                 offense.

               vi)    The defendant administered a controlled substance to  
                 the victim in the commission of the present offense, as  
                 specified.

               vii)   The defendant committed rape by a foreign object,  
                 sodomy in concert as specified, oral copulation in  
                 concert, as specified, and commit specified factors.  

          20)Any person who is convicted of rape by force or fear, spousal  
            rape, rape in concert, sexual penetration, sodomy, as  
            specified, oral copulation as specified under one of the  
            following circumstances against a minor 14 years of age or  
            older shall be punished by imprisonment in the state prison  
            for 25-years-to-life:  








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             a)   The defendant kidnapped the victim of the present  
               offense, as specified.

             b)   The defendant committed the present offense during the  
               commission of a burglary, as specified.

             c)   The defendant personally used a dangerous or deadly  
               weapon or a firearm in the commission of the present  
               offense, as specified.

             d)   The defendant has been convicted in the present case or  
               cases of committing an offense specified against more than  
               one victim.

             e)   The defendant engaged in the tying or binding of the  
               victim or another person in the commission of the present  
               offense.

             f)   The defendant administered a controlled substance to the  
               victim in the commission of the present offense, as  
               specified.

             g)   The defendant committed rape by a foreign object, sodomy  
               in concert as specified, oral copulation in concert, as  
               specified, and commit specified factors. 

          21)Increases the parole period for those convicted of rape,  
            sodomy, oral copulation, sexual penetration, rape in concert  
            from five years to 10 years unless a longer period of parole  
            is specified.  

          22)Increases the parole period in the case of any offense for  
            which an inmate has received a life sentence due to a  
            conviction of kidnapping (for rape, spousal rape, oral  
            copulation, sodomy, or other specified sexual offenses) from  
            five years to 10 years.  

          23)Increases parole to lifetime parole for the following  
            offenses:  

             a)   Lewd and lascivious acts on a child under the age of 14  
               years;

             b)   Lewd and lascivious acts on a child under the age of 14  








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               by means of force or fear;

             c)   Continuous sexual abuse of a child;

             d)   Sexual intercourse, oral copulation, or sodomy with a  
               child 10 years of age or younger;

             e)   A conviction under the habitual sexual offenders section  
               where the victim is under the age of 14 years;

             f)   Aggravated sexual assault of a child;

             g)   Lewd and lascivious acts with a child under the age of  
               14 with two or more of a specified prior;

             h)   Specified felony sex offense special circumstances;

             i)   Rape of a child under 14 years of age;

             j)   Spousal rape of a child under 14 years of age;

             aa)  Rape by a foreign object of a child under 14 years of  
               age;

             bb)  Sodomy of a child under 14 years of age;

             cc)  Oral copulation on a child under 14 years of age; and,

             dd)  Forcible acts of sexual penetration of a child under 14  
               years of age.

           EXISTING LAW  :

          1)Provides that persons who commit rape, spousal rape, rape in  
            concert, lewd and lascivious acts on a minor, sexual  
            penetration, sodomy, oral copulation, continuous sexual abuse  
            of a child, shall be punished by 25-years-to-life if [Penal  
            Code Section 667.61(a)]:

             a)   One or more of the following circumstances exist:  

               i)     The defendant has been previously convicted of a  
                 specified sex offense.  

               ii)    The defendant kidnapped the victim of the present  








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                 offense and the movement of the victim substantially  
                 increased the risk of harm to the victim.

               iii)   The defendant inflicted aggravated mayhem or torture  
                 on the victim or another person in the commission of the  
                 present offense.  

               iv)    The defendant committed the present offense during  
                 the commission of a burglary of the first degree.

               v)     The defendant committed rape by a foreign object,  
                 sodomy in concert, as specified, oral copulation in  
                 concert as specified, and commit specified factors.

             b)   Two or more of the following circumstances exist: 

               i)      The defendant kidnapped the victim of the present  
                 offense, as specified.

               ii)    The defendant committed the present offense during  
                 the commission of a burglary, as specified.

               iii)   The defendant personally used a dangerous or deadly  
                 weapon or a firearm in the commission of the present  
                 offense, as specified.

               iv)    The defendant has been convicted in the present case  
                 or cases of committing an offense specified against more  
                 than one victim.

               v)     The defendant engaged in the tying or binding of the  
                 victim or another person in the commission of the present  
                 offense.

               vi)    The defendant administered a controlled substance to  
                 the victim in the commission of the present offense, as  
                 specified.

               vii)   The defendant committed rape by a foreign object,  
                 sodomy in concert as specified, oral copulation in  
                 concert as specified, and commit specified factors.  

          2)Provides that persons who commit rape, spousal rape, rape in  
            concert, lewd and lascivious acts on a minor, sexual  
            penetration, sodomy, oral copulation, continuous sexual abuse  








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            of a child, shall be punished with 15-years-to-life with one  
            of the following circumstances [Penal Code Section 667.61(b)]:

               viii)  The defendant kidnapped the victim of the present  
                 offense, as specified.

               ix)    The defendant committed the present offense during  
                 the commission of a burglary, as specified.

               x)     The defendant personally used a dangerous or deadly  
                 weapon or a firearm in the commission of the present  
                 offense, as specified.

               xi)    The defendant has been convicted in the present case  
                 or cases of committing an offense specified against more  
                 than one victim;

               xii)   The defendant engaged in the tying or binding of the  
                 victim or another person in the commission of the present  
                 offense; or,

               xiii)  The defendant administered a controlled substance to  
                 the victim in the commission of the present offense, as  
                 specified.

             a)   The defendant committed rape by a foreign object, sodomy  
               in concert as specified, oral copulation in concert, as  
               specified, and commit specified factors.  

          3)Provides that the punishment for rape is three, six, or eight  
            years.  [Penal Code Section 264(a).]  

          4)States that 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 a rape or sexual  
            penetration, either personally or by aiding and abetting the  
            other person the defendant shall suffer confinement in the  
            state prison for five, seven, or nine years.  (Penal Code  
            Section 264.1.) 
                                                                       
          5)Provides that 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 and shall be punished by imprisonment in  
            the state prison for 15-years-to-life (Penal Code Section  








                                                                  AB 1844
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            269):

             a)   Rape;

             b)   Rape or sexual penetration, in concert;

             c)   Sodomy;

             d)   Oral copulation;

             e)   Sexual penetration; and,

             f)   Any person who violates this section is guilty of a  
               felony.

          6)States that 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.  [Penal Code Section 288.7(a).]  

          7)Any person 18 years of age or older who engages in oral  
            copulation or sexual penetration, 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.  [Penal Code Section 288.7(b).]  

          8)Defines 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.  [Penal Code Section 286(a).]

          9)Provides that 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.  [Penal Code Section 286(c)(2).]

          10)Provides that 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  








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            years.  [Penal Code Section 286(c)(3).]  

          11)Provides that 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.  [Penal Code Section 286(d).]

          12)States that 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 [Penal Code  
            Section 286(f)]:

             a)   Was unconscious or asleep.

             b)   Was not aware, knowing, perceiving, or cognizant that  
               the act occurred.

             c)   Was not aware, knowing, perceiving, or cognizant of the  
               essential characteristics of the act due to the  
               perpetrator's fraud in fact.

             d)   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.

          13)States that 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.  [Penal Code Section  
            286(i).]  








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          14)States that 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.  [Penal Code Section 286(j).]  

          15)States that 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.   
            [Penal Code Section 286(k).]

          16)States that any person who willfully and lewdly commits any  
            lewd or lascivious act, including any of the acts constituting  
            other specified crimes, 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.  [Penal Code  
            Section 288(a).]  

          17)Provides that any person who commits a lewd and lascivious  
            act upon a minor under the age of 14 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.  [Penal Code Section  
            288(b)(1).]  

          18)States that any person who is a caretaker and commits an act,  
            as specified, 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 a  
            specified intent, is guilty of a felony and shall be punished  








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            by imprisonment in the state prison for three, six, or eight  
            years.  [Penal Code Section 288(b)(2).]   

          19)Provides that any person who commits a lewd and lascivious  
            act upon a minor with the requisite intent, 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. [Penal Code Section 288(c)(1).]  

          20)States that any person who is a caretaker and commits a lewd  
            and lascivious act upon a dependent person with the requisite  
            intent 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.  [Penal Code Section 288(c)(2).]

          21)Defines oral copulation is the act of copulating the mouth of  
            one person with the sexual organ or anus of another person.   
            [Penal Code Section 288a(a).]  

          22)States that 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.  [Penal Code Section 288a(c)(1).]  

          23)States that 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.  [Penal Code Section 288a(c)(2).]   


          24)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  








                                                                  AB 1844
                                                                  Page  16

            years.  [Penal Code Section 288a(c)(3).]  

          25)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 [Penal Code Section 288a(d)]:  

             a)   Was unconscious or asleep.

             b)   Was not aware, knowing, perceiving, or cognizant that  
               the act occurred.

             c)   Was not aware, knowing, perceiving, or cognizant of the  
               essential characteristics of the act due to the  
               perpetrator's fraud in fact.

             d)   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.

          26)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.  [Penal Code Section 289(a).]  

          27)Defines "sexual penetration" as 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.  [Penal Code Section 289(k)(1).]  

          28)Defines "foreign object, substance, instrument, or device" as  
            any part of the body, except a sexual organ.  [Penal Code  
            Section 289(k)(2).]









                                                                  AB 1844
                                                                  Page  17

          29)Specifies that "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.   
            [Penal Code Section 289(k)(3).]  

          30)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.  [Penal Code Section 289(a)(2).]  

          31)States that 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.   [Penal Code  
            Section 289(b).]  

          32)Provides that 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.  [Penal  
            Code Section 289(c).]  

          33)States that 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  








                                                                  AB 1844
                                                                  Page  18

            meets one of the following conditions:  [Penal Code Section  
            289(d).]  

             a)   Was unconscious or asleep.

             b)   Was not aware, knowing, perceiving, or cognizant that  
               the act occurred.

             c)   Was not aware, knowing, perceiving, or cognizant of the  
               essential characteristics of the act due to the  
               perpetrator's fraud in fact.

             d)   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.

          34)States that 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.  [Penal Code Section 289(e).]  

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "[w]hile there  
            are seemingly tough laws on the books for sex offenders,  
            current California law does not acknowledge or adjust for the  
            true nature of the sexual violent predator that attacks  
            children.  Chelsea's law isolates this uniquely dangerous  
            predator and takes disciplined steps to keep them away from  
            our communities in a variety of ways.  

          "Beginning with sentencing, our office believes that those have  
            committed the most serious and heinous sex crimes against  
            children are not able to be rehabilitated.   Which is why  
            under our proposal, those who commit these crimes against  
            children will be locked up for LWOP.  

          "This will ensure that victims do not have to live in terror  








                                                                  AB 1844
                                                                  Page  19

            that their attacker will be freed one day, and potential  
            victims will not be needlessly harmed by those who we know to  
            be extremely dangerous.  

          "Also under our proposal, those offenders who have committed a  
            forcible sex crime against a child, signaling an appetite to  
            prey on children, will be locked up for much longer than in  
            current law.  In most cases, twice as long.  

          "We believe this is an important change because there currently  
            is no distinction between forcible and non-forcible sex crimes  
            on a child.  A forcible sex crime, such as forcible child  
            molestation, involves 'violence, duress, menace, or fear of  
            immediate and unlawful bodily injury.'  And while all sex  
            crimes are awful, these crimes are a red flag that the  
            perpetrator is capable of much, much worse.  And we should  
            acknowledge that.  

          "This is why, under Chelsea's Law, these offenders will serve a  
            lifetime on parole if released, including effective global  
            positioning system (GPS) monitoring of their whereabouts.  

          "Also, Chelsea's Law will create 'safe zones.'  Specifically, it  
            will now be a misdemeanor for a felony sex offender to loiter  
            in parks where children congregate - where they could  
            otherwise wait and target new victims.  

          "Testimony from corrections officials has stated that the  
            combination of these safe zones with GPS monitoring will allow  
            law enforcement officials to be immediately notified if the  
            most dangerous sex offenders have entered a park covered under  
            our law.  And steps can be taken to remove them.  

          "We believe this combination of increased sentencing, enhanced  
            oversight, and the creation of safe zones will provide safety  
            for children and comfort for parents. 

          "The violent sexual predator that attacks children is a  
            particular type of evil and should be treated as such.  AB  
            1844 ensures that those who commit a crime of this nature are  
            effectively kept from engaging in even more atrocious crimes  
            upon release, and that those who commit the worst violent sex  
            crimes against children are put away for life."  

           2)LWOP  :  The punishment for murder in the first degree in the  








                                                                  AB 1844
                                                                  Page  20

            State of California is 25-years-to-life in state prison.  If  
            special circumstances are proved, the punishment is death or,  
            in the alternative, LWOP.  This bill punishes incidents of  
            rape, spousal rape, rape in concert, lewd or lascivious acts,  
            sexual penetration, sodomy, oral copulation, or continuous  
            sexual abuse of a child, under specified circumstances with  
            LWOP.  For the most part, this bill takes one-strike sex  
            offenses, which are generally punished for 25-years-to-life,  
            and increases the penalty to LWOP if the victim is under the  
            age of 14.  

          Furthermore, any person convicted of specified offenses (namely  
            rape, spousal rape, rape in concert, lewd or lascivious acts,  
            sexual penetration, sodomy, oral copulation, or continuous  
            sexual abuse of a child) of a minor under the age of 14 where  
            the victim suffers a "traumatic injury" shall be punished with  
            LWOP.  Traumatic injury will be discussed further in the next  
            section.  

          Minors charged as adults would also face LWOP for a commission  
            of the specified sex acts against another minor where a  
            traumatic injury was inflicted.  Under this bill, a minor 16  
            years old could be charged with oral copulation of a  
            13-year-old as an adult.  If the jury finds that the act was  
            not consensual and the 13-year-old is bruised, the 16-year-old  
            will be sentenced to LWOP.  

            This bill will punish specified sex offenders more severely  
            than individuals convicted of first-degree, premeditated  
            murder.   
             
           3)Traumatic Injury  :  This bill punishes rape, spousal rape, rape  
            in concert, lewd or lascivious acts, sexual penetration,  
            sodomy, oral copulation, or continuous sexual abuse of a  
            child) of a minor under the age of 14 where the victim suffers  
            a "traumatic injury" with LWOP.  

          Traumatic injury, for purposes of this bill, is defined as "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."  [Penal Code Section 273.5(c).]  A bruise is  
            enough to constitute a "traumatic injury" under the definition  
            applied by this bill.  [People v. Beasley (2003) 105 Cal App  
            4th 1078.]  









                                                                  AB 1844
                                                                  Page  21

           4)One-Strike Sex Offenses  :  One-strike sex offenses are offenses  
            that trigger 25-years-to-life in prison for the commission of  
            a specified sex offense with one or more specified  
            circumstances proven in the case.  For instance, rape with  
            aggravated mayhem will trigger a 25-years-to-life sentence.   
            One-strike sex offenses were codified with the passage of SBx1  
            26 (Bergeson), Chapter 14, Statutes of 1994.  These penalties  
            currently apply to all individuals, regardless of the victim's  
            age.  This bill expands the punishment for one-strike sex  
            offenses to LWOP in most instances for minors under the age of  
            14 years.  

           5)Concerns for Prison Overcrowding  :  The California Policy  
            Research Center (CPRC) issued a report on the status of  
            California's prisons.  The report stated, "California has the  
            largest prison population of any state in the nation, with  
            more than 171,000 inmates in 33 adult prisons, and the state's  
            annual correctional spending, including jails and probation,  
            amounts to $8.92 billion.  Despite the high cost of  
            corrections, fewer California prisoners participate in  
            relevant treatment programs than comparable states, and its  
            inmate-to-officer ratio is considerably higher.  While the  
            nation's prisons average one correctional officer to every 4.5  
            inmates, the average California officer is responsible for 6.5  
            inmates.  Although officer salaries are higher than average,  
            their ranks are spread dangerously thin and there is a severe  
            vacancy rate."  [Petersilia, Understanding California  
                                                      Corrections, CPRC (May 2006).]  California's prison population  
            will likely exceed 180,000 by 2010.

          According to the Little Hoover Commission, "Lawsuits filed in  
            three federal courts alleging that the current level of  
            overcrowding constitutes cruel and unusual punishment ask that  
            the courts appoint a panel of federal judges to manage  
            California's prison population.  United States District Judge  
            Lawrence Karlton, the first judge to hear the motion, gave the  
            State until June 2007 to show progress in solving the  
            overpopulation crisis.  Judge Karlton clearly would prefer not  
            to manage California's prison population.  At a December 2006  
            hearing, Judge Karlton told lawyers representing the  
            Schwarzenegger administration that he is not inclined 'to  
            spend forever running the state prison system.'  However, he  
            also warned the attorneys, 'You tell your client June 4 may be  
            the end of the line.  It may really be the end of the line.'









                                                                  AB 1844
                                                                  Page  22

          "Despite the rhetoric, thirty years of 'tough on crime' politics  
            has not made the state safer.  Quite the opposite:  today  
            thousands of hardened, violent criminals are released without  
            regard to the danger they present to an unsuspecting public.   
            Years of political posturing have taken a good idea -  
            determinate sentencing - and warped it beyond recognition with  
            a series of laws passed with no thought to their cumulative  
            impact.  And these laws stripped away incentive s for  
            offenders to change or improve themselves while incarcerated.   


          "Inmates, who are willing to improve their education, learn a  
            job skill or kick a drug habit find that programs are few and  
            far between, a result of budget choices and overcrowding.   
            Consequently, offenders are released into California  
            communities with the criminal tendencies and addictions that  
            first led to their incarceration.  They are ill-prepared to do  
            more than commit new crimes and create new victims . . . . "   
            [Little Hoover Commission Report, Solving California's  
            Corrections Crisis:  Time is Running Out, pg. 1, 2 (2007).]  

          On January 12, 2010, the Three Judge Panel issued its final  
            ruling ordering the State of California to reduce its prison  
            population by approximately 50,000 inmates in the next two  
            years.  [Coleman/Plata vs. Schwarzenegger (2010) No. Civ  
            S-90-0520 LKK JFM P/NO. C01-1351 THE.]  Although this order is  
            stayed pending appeal to the United States Supreme Court,  
            careful consideration must be given to any proposal that  
            exacerbates prison overcrowding.  

          This bill creates substantial penalty increases.  In general,  
            most forcible sex acts are doubled if committed on a minor.   
            Additionally, the bill increases the penalty for one strike  
            sex offenses to LWOP if committed against specified minors.   
            According to numbers from DOJ there are about 63 thousand sex  
            offenders in the system.  There are 46,323 offenders in the  
            sex offender registry (currently either in the community, or  
            in prison) who committed either a felony child molest of a  
            child under 14 or a misdemeanor annoy or molest of a child  
            under 18, or both.  Breaking it down, there are 38,641  
            registrants who committed a lewd or lascivious offense against  
            a child under 14; there are 6,250 offenders who committed an  
            annoy/molest of a child under 18; and there are 1,432 who  
            committed at least one of each (both felony and misdemeanor  
            child molest). This is out of about 90,000 in the registry;  








                                                                  AB 1844
                                                                  Page  23

            about 68,000 registrants are in the community, and about  
            22,000 are in prison.  This bill would have a substantial  
            impact on California's prison population.

           6)Lifetime Parole  :  This bill increases parole to lifetime  
            parole for the following offenses:  lewd and lascivious acts  
            on a child under the age of 14 years; lewd and lascivious acts  
            on a child under the age of 14 by means of force or fear;  
            continuous sexual abuse of a child; sexual intercourse; oral  
            copulation; or sodomy with a child 10 years of age or younger;  
            conviction under the habitual sexual offenders section where  
            the victim is under the age of 14 years; aggravated sexual  
            assault of a child; lewd and lascivious acts with a child  
            under the age of 14 with two or more of a specified prior;  
            specified felony sex offense special circumstances; rape of a  
            child under 14 years of age; spousal rape of a child under 14  
            years of age; rape by a foreign object of a child under 14  
            years of age; sodomy of a child under 14 years of age; oral  
            copulation on a child under 14 years of age; or forcible acts  
            of sexual penetration of a child under 14 years of age.

          The status of parole is granted to any prisoner released from a  
            California prison after serving his or her sentence.  (Penal  
            Code Section 3000.)  Although no longer in physical custody, a  
            parolee is required to comply with specified restrictions to  
            his or her freedom.  [People v. Burgener (1986) 41 Cal 3d 505,  
            531.]  A prisoner on parole can be either a determinately  
            sentenced prisoner or an indeterminately sentenced prisoner  
            serving a sentence of LWOP.  

          The purpose of parole is to provide a transition period for  
            formerly incarcerated persons so that they may reintegrate  
            into the community.  In general, parole involved supervision  
            and surveillance.  The goals of parole include public safety,  
            reintegration of the parolee back into society, and making  
            parole decisions that are fiscally responsible on behalf of  
            California.  [Penal Code Section 3000(a).]  Parole is meant to  
            be reformatory in purpose; the object is to mitigate the rigor  
            of the prison system and to allow the prisoner to reenter  
            society by replacing continued incarceration with a  
            conditional freedom controlled by parole conditions.  [Penal  
            Code Section 3056; People v. Denne (1956) 141 Cal App 2d 499,  
            507.]  Parole provides a testing period for the reintegration  
            of a prisoner into society.  [In re Carabes (1983) 144 Cal App  
            3d 927, 931.]  








                                                                  AB 1844
                                                                  Page  24


          California has implemented a program to assess the risk of  
            re-offense posed by individuals convicted of crimes for which  
            they are required to register under the Sex Offender  
            Registration Act. (Penal Code Sections 290 to 290.023.)  Under  
            this program, all individuals required to register as sex  
            offenders are to be assessed using a risk assessment tool  
            known as the State-Authorized Risk Assessment Tool for Sex  
            Offenders (SARATSO).  (Penal Code Sections 290.04 to 290.06.)   
            Under Penal Code Section 3005(a), all sex offenders who are  
            deemed to pose a high risk of re-offense as determined by  
            their score on the SARATSO must be placed on intensive and  
            specialized parole supervision and required to report  
            frequently to designated parole officers.  Other sex offenders  
            may be placed on intensive parole supervision.  [Penal Code  
            Section 3005(a).]  Additionally the following mandatory parole  
            conditions apply for sex offenders:

             a)   Sex offenders who are required to register under the Sex  
               Offender Registration Act may not reside with other  
               registered sex offenders.  (Penal Code Section 3003.5.)

             b)   Sex offenders determined to be at a high risk for  
               committing violent sex crimes may be required to undergo  
               relapse prevention treatment as a condition of parole.   
               (Penal Code Section 3005.)  

             c)   Sex offenders determined by the Board of Parole Hearings  
               to be intoxicated at the time of the offense, or addicted  
               to the excessive use of alcohol at the time of or  
               immediately preceding the crime, must completely abstain  
               from the use of alcohol.  (Penal Code section 3053.5.)  

             d)   Sex offenders with a SARATSO rating of "high" are  
               subject to mandatory electronic monitoring while on parole.  
                [Penal Code Section 3004(b).]

           7)Safe Zone for Parks  :  This bill creates a new misdemeanor if a  
            person required to register pursuant to the Sex Offender  
            Registration Act for a felony offense enters any park where  
            children regularly gather without written permission.  If the  
            person is on parole, written permission shall be obtained from  
            the person's parole officer.  If the person is not on parole,  
            written permission shall be obtained from the chief  
            administrative official of the park.  








                                                                  AB 1844
                                                                  Page  25


          This bill is presumably modeled after Penal Code Section 626.81  
            which created a misdemeanor for registered sex offenders to  
            enter school grounds without lawful business and written  
            permission from the chief administrator of the school.  

          The portion of the bill stating "where children regularly  
            gather" could be challenged constitutionally for vagueness if  
            a person were prosecuted for violating this section.  What  
            constitutes a park where children regularly gather?  How  
            regularly must children gather there?  For instance, is all of  
            Golden Gate Park in San Francisco restricted because there is  
            a small portion of the park with a playground?  The author  
            should consider a more narrow definition to prevent possible  
            constitutional challenges.

           8)Argument in Support  :  According to the  Peace Officers Research  
            Association of California  , "Assembly Bill 1844 will institute  
            lifetime parole and GPS monitoring for serious sex offenders,  
            as well as other restrictions for anyone convicted of serious  
            and violent sexual offenses.  

          "In the wake of the recent tragedies in Southern California, we  
            feel that additional steps must be taken to keep these  
            dangerous offenders off the streets.  It is especially tragic  
            in the law enforcement community when you know a child could  
            have been protected and a life could have been saved, but  
            because of gaps in the law, a predator was able to remain on  
            the streets.  We must not let another offender fall through  
            the cracks. 

          "Thank you for your efforts to protect Californians from these  
            dangerous offenders.  We look forward to working with you and  
            your office on this critical measure." 

           9)Argument in Opposition  :  According to the  California Public  
            Defenders Association  , "[t]he death of Chelsea King is a  
            tragedy.  In her honor, it is incumbent upon California  
            legislators to use scarce resources wisely.  Locking up every  
            child molester for life without the possibility of parole will  
            not create a safer California.  To the contrary, we believe  
            that this measure will tie up already scarce resources thereby  
            preventing law enforcement from focusing on those individuals  
            who pose a risk to society.  









                                                                  AB 1844
                                                                  Page  26

            "Rape and sexual assault are a serious problem and deserve  
            critical and analytical attention.  Evidence based research  
            has shown that all sex offenders are not the same, accordingly  
            blanket approaches such as the one envisioned in this measure  
            do not achieve the desired effect of making society safer.   
            Sex offenders need to be treated, assessed, and where  
            appropriate re-integrated into the community so that they will  
            not re-offend.  

            "CDCR's current budget proposes to cut what few rehabilitation  
            programs are offered in state prison.  Yet sex offender  
            treatment and other programs are absolutely necessary in order  
            to stop criminals from re-offending."  
             
           10)Related Legislation:   AB 2295 (De La Torre) requires the  
            Department of Corrections and Rehabilitation to permanently  
            retain all files prepared by the Division of Adult Parole  
            Operations regarding any person who was paroled who has been  
            imprisoned for committing a serious felony or a violent felony  
            or who is required to register as a sex offender.  AB 2295  
            will be heard by this Committee today.  

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California State Sheriffs' Association 
          Crime Victims United of California 
          Peace Officers Research Association of California

           Opposition 
           
          California Public Defenders Association 
          Taxpayers for Improving Public Safety
           

          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744