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.
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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
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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
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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).]
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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
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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
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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
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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.]
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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
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"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
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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
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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.
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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.
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"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