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 AB 1844 Page 2 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 Page 3 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. AB 1844 Page 4 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 AB 1844 Page 5 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. AB 1844 Page 6 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. AB 1844 Page 7 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: AB 1844 Page 8 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 AB 1844 Page 9 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 AB 1844 Page 10 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 AB 1844 Page 11 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 Page 12 269): 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 AB 1844 Page 13 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).] AB 1844 Page 14 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 AB 1844 Page 15 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