BILL NUMBER: AB 1243	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JULY 14, 2011

INTRODUCED BY   Assembly Member Fletcher

                        FEBRUARY 18, 2011

    An act to amend Section 6600 of the Welfare and
Institutions Code, relating to sexually violent predators, and
declaring the urgency thereof,   An act to amend Section
667.61 of the Penal Code,    relating to sex crimes, and
declaring the urgency thereof,  to take effect immediately.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1243, as amended, Fletcher.  Sexually violent
predators.   Sex crimes.  
   Existing law, as amended by Proposition 83, the Sexual Predator
Punishment and Control Act (Jessica's Law), approved by the voters at
the November 7, 2006, statewide general election provides that a
defendant shall be punished by imprisonment in the state prison for
25 years to life if convicted of rape, sodomy, or oral copulation and
if, among other things, in the commission of that offense any person
kidnapped the victim, tortured the victim, or committed the offense
during the commission of a burglary, as specified. Existing law
further provides that a defendant shall be punished by imprisonment
in the state prison for 15 years to life if convicted of rape,
sodomy, or oral copulation and if, among other things, in the
commission of that offense any person, except as specified in the
provisions above, kidnapped the victim, committed the offense during
the commission of a burglary, used a dangerous or deadly weapon in
the commission of the offense, or under other specified
circumstances. Proposition 83 provides that the Legislature may amend
the provisions of the act to expand the scope of their application
or increase the punishment or penalties by a statute passed by a
majority vote of each house.  
   This bill would additionally include the infliction of great
bodily injury on the victim or another person among that list of
circumstances that if committed by any person in the commission by
the defendant of rape, sodomy, or oral copulation would subject the
defendant to imprisonment in the state prison for 15 years to life.
The bill would include related findings and declarations. Because the
bill would change the penalty for a crime, it would impose a
state-mandated local program.  
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that no reimbursement is required by this
act for a specified reason.  
   Existing law defines "sexually violent predator" to mean a person
who has been convicted of a sexually violent offense against one or
more victims and who has a diagnosed mental disorder that makes the
person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal
behavior. Existing law defines a sexually violent offense to include,
among other offenses, a conviction for any of certain specified sex
offenses that was committed prior to July 1, 1977, and that resulted
in an indeterminate prison sentence.  
   This bill would make a technical, nonsubstantive change to these
provisions. 
   This bill would declare that it is to take effect immediately as
an urgency statute.
   Vote: 2/3. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program:  no
  yes  .


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

   SECTION 1.    The Legislature finds and declares all
of the following:  
   (a) One purpose of the Chelsea King Child Predator Prevention Act
of 2010 was to enhance the penalties upon a defendant who, in the
commission of certain sex crimes, personally inflicted great bodily
injury on the victim or another person, from a term of imprisonment
in the state prison for 15 years to life to a term of imprisonment in
the state prison for 25 years to life.  
   (b) It was also the intent of the Legislature that a defendant who
commits an act described in Section 264.1, subdivision (d) of
Section 286, or subdivision (d) of Section 288a of the Penal Code, be
punished by imprisonment in the state prison for 15 years to life
if, in the commission of that offense, any person inflicts great
bodily injury on the victim or another person.  
   (c) It is the intent of the Legislature by the enactment of this
act to address this oversight. 
   SEC.   2.    Section 667.61 of the 
 Penal Code   is amended to read: 
   667.61.  (a) Except as provided in subdivision (j), (l), or (m),
any person who is convicted of an offense specified in subdivision
(c) under one or more of the circumstances specified in subdivision
(d) or under two or more of the circumstances specified in
subdivision (e) shall be punished by imprisonment in the state prison
for 25 years to life.
   (b) Except as provided in subdivision (a), (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one of the circumstances specified in subdivision (e) shall be
punished by imprisonment in the state prison for 15 years to life.
   (c) This section shall apply to any of the following offenses:
   (1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
   (2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
   (3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
   (4) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
   (5) Sexual penetration, in violation of subdivision (a) of Section
289.
   (6) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
   (7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
   (8) Lewd or lascivious act, in violation of subdivision (a) of
Section 288.
   (9) Continuous sexual abuse of a child, in violation of Section
288.5.
   (d) The following circumstances shall apply to the offenses
specified in subdivision (c):
   (1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c).
   (2) The defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily inherent
in the underlying offense in subdivision (c).
   (3) The defendant inflicted aggravated mayhem or torture on the
victim or another person in the commission of the present offense in
violation of Section 205 or 206.
   (4) The defendant committed the present offense during the
commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460, with intent to commit an offense
specified in subdivision (c).
   (5) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (2), (3), or (4) of this
subdivision.
   (6) The defendant personally inflicted great bodily injury on the
victim or another person in the commission of the present offense in
violation of Section 12022.53, 12022.7, or 12022.8.
   (7) The defendant personally inflicted bodily harm on the victim
who was under 14 years of age.
   (e) The following circumstances shall apply to the offenses
specified in subdivision (c):
   (1) Except as provided in paragraph (2) of subdivision (d), the
defendant kidnapped the victim of the present offense in violation of
Section 207, 209, or 209.5.
   (2) Except as provided in paragraph (4) of subdivision (d), the
defendant committed the present offense during the commission of a
burglary in violation of Section 459.
   (3) The defendant personally used a dangerous or deadly weapon or
a firearm in the commission of the present offense in violation of
Section 12022, 12022.3, 12022.5, or 12022.53.
   (4) The defendant has been convicted in the present case or cases
of committing an offense specified in subdivision (c) against more
than one victim.
   (5) The defendant engaged in the tying or binding of the victim or
another person in the commission of the present offense.
   (6) The defendant administered a controlled substance to the
victim in the commission of the present offense in violation of
Section 12022.75.
   (7) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (1), (2), (3), (5), or (6)
of this subdivision  or paragraph (6) of subdivision (d)  .
   (f) If only the minimum number of circumstances specified in
subdivision (d) or (e) that are required for the punishment provided
in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
proved, that circumstance or those circumstances shall be used as
the basis for imposing the term provided in subdivision (a), (b),
(j), (l), or (m) whichever is greater, rather than being used to
impose the punishment authorized under any other provision of law,
unless another provision of law provides for a greater penalty or the
punishment under another provision of law can be imposed in addition
to the punishment provided by this section. However, if any
additional circumstance or circumstances specified in subdivision (d)
or (e) have been pled and proved, the minimum number of
circumstances shall be used as the basis for imposing the term
provided in subdivision (a), (j), or (l) and any other additional
circumstance or circumstances shall be used to impose any punishment
or enhancement authorized under any other provision of law.
   (g) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any of the circumstances specified in subdivision (d) or (e) for any
person who is subject to punishment under this section.
   (h) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under this
section.
   (i) For any offense specified in paragraphs (1) to (7), inclusive,
of subdivision (c), or in paragraphs (1) to (6), inclusive, of
subdivision (n), the court shall impose a consecutive sentence for
each offense that results in a conviction under this section if the
crimes involve separate victims or involve the same victim on
separate occasions as defined in subdivision (d) of Section 667.6.
   (j) (1) Any person who is convicted of an offense specified in
subdivision (c), with the exception of a violation of subdivision (a)
of Section 288, upon a victim who is a child under 14 years of age
under one or more of the circumstances specified in subdivision (d)
or under two or more of the circumstances specified in subdivision
(e), shall be punished by imprisonment in the state prison for life
without the possibility of parole. Where the person was under 18
years of age at the time of the offense, the person shall be punished
by imprisonment in the state prison for 25 years to life.
   (2) Any person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of age,
shall be punished by imprisonment in the state prison for 25 years to
life.
   (k) As used in this section, "bodily harm" means any substantial
physical injury resulting from the use of force that is more than the
force necessary to commit an offense specified in subdivision (c).
   (l) Any person who is convicted of an offense specified in
subdivision (n) under one or more of the circumstances specified in
subdivision (d) or under two or more of the circumstances specified
in subdivision (e), upon a victim who is a minor 14 years of age or
older shall be punished by imprisonment in the state prison for life
without the possibility of parole. If the person who was convicted
was under 18 years of age at the time of the offense, he or she shall
be punished by imprisonment in the state prison for 25 years to
life.
   (m) Any person who is convicted of an offense specified in
subdivision (n) under one of the circumstances specified in
subdivision (e) against a minor 14 years of age or older shall be
punished by imprisonment in the state prison for 25 years to life.
   (n) Subdivisions (l) and (m) shall apply to any of the following
offenses:
   (1) Rape, in violation of paragraph (2) of subdivision (a) of
Section 261.
   (2) Spousal rape, in violation of paragraph (1) of subdivision (a)
of Section 262.
   (3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
   (4) Sexual penetration, in violation of paragraph (1) of
subdivision (a) of Section 289.
   (5) Sodomy, in violation of paragraph (2) of subdivision (c) of
Section 286, or in violation of subdivision (d) of Section 286.
   (6) Oral copulation, in violation of paragraph (2) of subdivision
(c) of Section 288a, or in violation of subdivision (d) of Section
288a.
   (o) The penalties provided in this section shall apply only if the
existence of any circumstance specified in subdivision (d) or (e) is
alleged in the accusatory pleading pursuant to this section, and is
either admitted by the defendant in open court or found to be true by
the trier of fact.
   SEC. 3.    No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution. 
   SEC. 4.    This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
 
   In order to ensure, at the earliest possible time, appropriate
sentencing of those convicted of committing violent crimes in concert
with others, it is necessary for this act to take effect
immediately.  
  SECTION 1.    Section 6600 of the Welfare and
Institutions Code is amended to read:
   6600.  As used in this article, the following terms have the
following meanings:
   (a) (1) "Sexually violent predator" means a person who has been
convicted of a sexually violent offense against one or more victims
and who has a diagnosed mental disorder that makes the person a
danger to the health and safety of others in that it is likely that
he or she will engage in sexually violent criminal behavior.
   (2) For purposes of this subdivision any of the following shall be
considered a conviction for a sexually violent offense:
   (A) A prior or current conviction that resulted in a determinate
prison sentence for an offense described in subdivision (b).
   (B) A conviction for an offense described in subdivision (b) that
was committed before July 1, 1977, and that resulted in an
indeterminate prison sentence.
   (C) A prior conviction in another jurisdiction for an offense that
includes all of the elements of an offense described in subdivision
(b).
   (D) A conviction for an offense under a predecessor statute that
includes all of the elements of an offense described in subdivision
(b).
   (E) A prior conviction for which the inmate received a grant of
probation for an offense described in subdivision (b).
   (F) A prior finding of not guilty by reason of insanity for an
offense described in subdivision (b).
   (G) A conviction resulting in a finding that the person was a
mentally disordered sex offender.
   (H) A prior conviction for an offense described in subdivision (b)
for which the person was committed to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities pursuant to
Section 1731.5.
   (I) A prior conviction for an offense described in subdivision (b)
that resulted in an indeterminate prison sentence.
   (3) Conviction of one or more of the crimes enumerated in this
section shall constitute evidence that may support a court or jury
determination that a person is a sexually violent predator, but shall
not be the sole basis for the determination. The existence of any
prior convictions may be shown with documentary evidence. The details
underlying the commission of an offense that led to a prior
conviction, including a predatory relationship with the victim, may
be shown by documentary evidence, including, but not limited to,
preliminary hearing transcripts, trial transcripts, probation and
sentencing reports, and evaluations by the State Department of Mental
Health. Jurors shall be admonished that they may not find a person a
sexually violent predator based on prior offenses absent relevant
evidence of a currently diagnosed mental disorder that makes the
person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal
behavior.
   (4) The provisions of this section shall apply to any person
against whom proceedings were initiated for commitment as a sexually
violent predator on or after January 1, 1996.
   (b) "Sexually violent offense" means the following acts when
committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or
threatening to retaliate in the future against the victim or any
other person, and that are committed on, before, or after the
effective date of this article and result in a conviction or a
finding of not guilty by reason of insanity, as defined in
subdivision (a): a felony violation of Section 261, 262, 264.1, 269,
286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony
violation of Section 207, 209, or 220 of the Penal Code, committed
with the intent to commit a violation of Section 261, 262, 264.1,
286, 288, 288a, or 289 of the Penal Code.
   (c) "Diagnosed mental disorder" includes a congenital or acquired
condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a
degree constituting the person a menace to the health and safety of
others.
   (d) "Danger to the health and safety of others" does not require
proof of a recent overt act while the offender is in custody.
   (e) "Predatory" means an act is directed toward a stranger, a
person of casual acquaintance with whom no substantial relationship
exists, or an individual with whom a relationship has been
established or promoted for the primary purpose of victimization.
   (f) "Recent overt act" means any criminal act that manifests a
likelihood that the actor may engage in sexually violent predatory
criminal behavior.
   (g) Notwithstanding any other provision of law and for purposes of
this section, a prior juvenile adjudication of a sexually violent
offense may constitute a prior conviction for which the person
received a determinate term if all of the following apply:
   (1) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
   (2) The prior offense is a sexually violent offense as specified
in subdivision (b).
   (3) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 because of the person's commission of the
offense giving rise to the juvenile court adjudication.
   (4) The juvenile was committed to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities for the sexually
violent offense.
   (h) A minor adjudged a ward of the court for commission of an
offense that is defined as a sexually violent offense shall be
entitled to specific treatment as a sexual offender. The failure of a
minor to receive that treatment shall not constitute a defense or
bar to a determination that any person is a sexually violent predator
within the meaning of this article.  
  SEC. 2.    This act is an urgency statute
necessary for the immediate preservation of the public peace, health,
or safety within the meaning of Article IV of the Constitution and
shall go into immediate effect. The facts constituting the necessity
are:
   In order to ensure public safety and efficient treatment of
sexually violent predators at the earliest possible time, it is
necessary for this act to take effect immediately.