BILL NUMBER: SB 1253	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Strickland

                        FEBRUARY 19, 2010

   An act to amend Section 1203.066 of the Penal Code, relating to
probation.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1253, as introduced, Strickland. Probation: sex offenders.
   Existing law provides that probation shall not be granted to
specified defendants who are convicted of lewd or lascivious acts
upon or with the body of a child, or defendants convicted of
continuous sexual abuse of a child, except as specified. Existing law
provides that if the defendant is not ineligible for probation, the
defendant may be granted probation only if certain terms and
conditions are met.
   This bill would include within those terms and conditions that the
court prohibit the defendant from being placed or residing, for the
duration of the probation term, within 1/2 mile of the child victim's
residence.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1203.066 of the Penal Code is amended to read:
   1203.066.  (a) Notwithstanding Section 1203 or any other law,
probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, nor shall a finding bringing
the defendant within the provisions of this section be stricken
pursuant to Section 1385 for, any of the following persons:
   (1) A person who is convicted of violating Section 288 or 288.5
when the act is committed by the use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim
or another person.
   (2) A person who caused bodily injury on the child victim in
committing a violation of Section 288 or 288.5.
   (3) A person who is convicted of a violation of Section 288 or
288.5 and who was a stranger to the child victim or befriended the
child victim for the purpose of committing an act in violation of
Section 288 or 288.5, unless the defendant honestly and reasonably
believed the victim was 14 years of age or older.
   (4) A person who used a weapon during the commission of a
violation of Section 288 or 288.5.
   (5) A person who is convicted of committing a violation of Section
288 or 288.5 and who has been previously convicted of a violation of
Section 261, 262, 264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a,
or 289, or of assaulting another person with intent to commit a
crime specified in this paragraph in violation of Section 220, or who
has been previously convicted in another state of an offense which,
if committed or attempted in this state, would constitute an offense
enumerated in this paragraph.
   (6) A person who violated Section 288 or 288.5 while kidnapping
the child victim in violation of Section 207, 209, or 209.5.
   (7) A person who is convicted of committing a violation of Section
288 or 288.5 against more than one victim.
   (8) A person who, in violating Section 288 or 288.5, has
substantial sexual conduct with a victim who is under 14 years of
age.
   (9) A person who, in violating Section 288 or 288.5, used obscene
matter, as defined in Section 311, or matter, as defined in Section
311, depicting sexual conduct, as defined in Section 311.3.
   (b) "Substantial sexual conduct" means penetration of the vagina
or rectum of either the victim or the offender by the penis of the
other or by any foreign object, oral copulation, or masturbation of
either the victim or the offender.
   (c) (1) Except for a violation of subdivision (b) of Section 288,
this section shall only apply if the existence of any fact required
in subdivision (a) is alleged in the accusatory pleading and is
either admitted by the defendant in open court, or found to be true
by the trier of fact.
   (2) For the existence of any fact under paragraph (7) of
subdivision (a), the allegation must be made pursuant to this
section.
   (d) (1) If a person is convicted of a violation of Section 288 or
288.5, and the factors listed in subdivision (a) are not pled or
proven, probation may be granted only if the following terms and
conditions are met:
   (A) If the defendant is a member of the victim's household, the
court finds that probation is in the best interest of the child
victim.
   (B) The court finds that rehabilitation of the defendant is
feasible and that the defendant is amenable to undergoing treatment,
and the defendant is placed in a recognized treatment program
designed to deal with child molestation immediately after the grant
of probation or the suspension of execution or imposition of
sentence.
   (C) If the defendant is a member of the victim's household,
probation shall not be granted unless the defendant is removed from
the household of the victim  until the court determines that
the best interests of the victim would be served by his or her return
 . While removed from the household, the court shall
prohibit contact by the defendant with the victim, with the exception
that the court may permit supervised contact, upon the request of
the director of the court-ordered supervised treatment program, and
with the agreement of the victim and the victim's parent or legal
guardian, other than the defendant. 
   (D) The court prohibits the defendant from being placed or
residing, for the duration of the probation term, within one-half
mile of the child victim's residence.  
   (D) 
    (E)  The court finds that there is no threat of physical
harm to the victim if probation is granted.
   (2) The court shall state its reasons on the record for whatever
sentence it imposes on the defendant.
   (3) The court shall order the psychiatrist or psychologist who is
appointed pursuant to Section 288.1 to include a consideration of the
factors specified in subparagraphs (A), (B), and (C) of paragraph
(1) in making his or her report to the court.
   (4) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon ability to pay.
   (5) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
   (e) As used in subdivision (d), the following definitions apply:
   (1) "Contact with the victim" includes all physical contact, being
in the presence of the victim, communicating by any means, including
by a third party acting on behalf of the defendant, or sending any
gifts.
   (2) "Recognized treatment program" means a program that consists
of the following components:
   (A) Substantial expertise in the treatment of child sexual abuse.
   (B) A treatment regimen designed to specifically address the
offense.
   (C) The ability to serve indigent clients.
   (D) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program, or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.