California Legislature—2013–14 Regular Session

Assembly Bill No. 20

Introduced by Assembly Member Waldron

December 3, 2012

An act to amend Sections 311.1, 311.2, 311.3, 311.11, 1203.4, 11165.7, and 11166 of the Penal Code, relating to obscene matter.

LEGISLATIVE COUNSEL’S DIGEST

AB 20, as introduced, Waldron. Obscene matter: minors.

Existing law provides that every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, as specified, with the intent to distribute or to exhibit to, or to exchange with, others, or who offers to distribute, distributes, or exhibits to, or exchanges with, others, any obscene matter, knowing that the matter depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct, as defined, shall be punished either by imprisonment in the county jail for up to one year, by a fine not to exceed $1,000, or by both the fine and imprisonment, or by imprisonment in the state prison, by a fine not to exceed $10,000, or by both the fine and imprisonment.

This bill would provide that the punishment for this offense would be imprisonment in the state prison, a fine not to exceed $10,000, or by both the fine and imprisonment.

Existing law provides that every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, develops, duplicates, or prints any representation of information, data, or image, as specified, with intent to distribute or exhibit to, or to exchange with, a person 18 years of age or older, or who offers to distribute, distributes, or exhibits to, or exchanges with, a person 18 years of age or older any matter, knowing that the matter depicts a person under 18 years of age personally engaging in or personally simulating sexual conduct, as defined, shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding $2,000, or by both that fine and imprisonment, or by imprisonment in the state prison.

This bill would provide that the punishment for this offense would be imprisonment in the state prison.

Existing law provides that a person is guilty of sexual exploitation of a child if he or she knowingly develops, duplicates, prints, or exchanges any representation of information, data, or image, as specified, that depicts a person under 18 years of age engaged in an act of sexual conduct. Existing law provides that every person who commits that offense shall be punished by a fine of not more than $2,000 or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment, or, if the person has been previously convicted of that offense or other specified offenses relating to obscene matter that he or she shall be punished by imprisonment in the state prison.

This bill would provide that the punishment for this offense would be imprisonment in the state prison.

Existing law, amended by Proposition 83, as approved by the voters at the November 7, 2006, statewide general election, provides that every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image, as specified, that depicts a person under 18 years of age personally engaging in or simulating sexual conduct, as provided, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding $2,500, or by both the fine and imprisonment. The Legislature may amend the provisions of Proposition 83 by a majority vote if the amendments increase the penalties for an offense within the scope of the proposition.

This bill would provide that punishment for this offense would be imprisonment in the state prison.

Existing law allows for the release from all penalties and disabilities resulting from an offense for which the person was convicted if specified criteria are met. Existing law excludes certain sex offenses from these provisions.

This bill would additionally exclude specified offenses relating to obscene matter involving minors from these provisions.

Existing law, the Child Abuse and Neglect Reporting Act, requires a mandated reporter, as defined, to report whenever he or she, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. Failure to report an incident is a crime punishable by imprisonment in a county jail for a period of 6 months, a fine of up to $1,000, or by both that imprisonment and fine. Existing law requires any commercial film and photographic print processor who has knowledge of or observed in his or her professional capacity or employment any film, photograph, videotape, negative, or slide depicting a child under 16 years of age engaging in an act of sexual conduct to report the instance of suspected child abuse to a law enforcement agency, as specified.

This bill would apply these provisions to a librarian, as provided.

By increasing the penalties for existing crimes and imposing the mandated reporting requirements on a new class of persons, for whom failure to report specified conduct is a crime, this bill 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 311.1 of the Penal Code is amended to
read:

311.1.  

(a) Every person who knowingly sends or causes to be
sent, or brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated
equipment or any other computer-generated image that contains
or incorporates in any manner, any film or filmstrip, with intent
to distribute or to exhibit to, or to exchange with, others, or who
offers to distribute, distributes, or exhibits to, or exchanges with,
others, any obscene matter, knowing that the matter depicts a
person under the age of 18 years personally engaging in or
personally simulating sexual conduct, as defined in Section 311.4,
shall be punished begin delete either by imprisonment in the county jail for up end delete
begin delete to one year, by a fine not to exceed one thousand dollars ($1,000), end delete
begin delete or by both the fine and imprisonment, or end delete by imprisonment in the
state prison, by a fine not to exceed ten thousand dollars ($10,000),
or by the fine and imprisonment.

(b) This section does not apply to the activities of law
enforcement and prosecuting agencies in the investigation and
prosecution of criminal offenses or to legitimate medical, scientific,
or educational activities, or to lawful conduct between spouses.

(c) This section does not apply to matter which depicts a child
under the age of 18, which child is legally emancipated, including
lawful conduct between spouses when one or both are under the
age of 18.

(d) It does not constitute a violation of this section for a
telephone corporation, as defined by Section 234 of the Public
Utilities Code, to carry or transmit messages described in this
chapter or perform related activities in providing telephone
services.

SEC. 2.  

Section 311.2 of the Penal Code is amended to read:

311.2.  

(a) Every person who knowingly sends or causes to be
sent, or brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, or prints, with intent to distribute or to exhibit to others,
or who offers to distribute, distributes, or exhibits to others, any
obscene matter is for a first offense, guilty of a misdemeanor. If
the person has previously been convicted of any violation of this
section, the court may, in addition to the punishment authorized
in Section 311.9, impose a fine not exceeding fifty thousand dollars
($50,000).

(b) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or distribution,
or in this state possesses, prepares, publishes, produces, develops,
duplicates, or prints any representation of information, data, or
image, including, but not limited to, any film, filmstrip, photograph,
negative, slide, photocopy, videotape, video laser disc, computer
hardware, computer software, computer floppy disc, data storage
media, CD-ROM, or computer-generated equipment or any other
computer-generated image that contains or incorporates in any
manner, any film or filmstrip, with intent to distribute or to exhibit
to, or to exchange with, others for commercial consideration, or
who offers to distribute, distributes, or exhibits to, or exchanges
with, others for commercial consideration, any obscene matter,
knowing that the matter depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct,
as defined in Section 311.4, is guilty of a felony and shall be
punished by imprisonment in the state prison for two, three, or six
years, or by a fine not exceeding one hundred thousand dollars
($100,000), in the absence of a finding that the defendant would
be incapable of paying that fine, or by both that fine and
imprisonment.

(c) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or distribution,
or in this state possesses, prepares, publishes, produces, develops,
duplicates, or prints any representation of information, data, or
image, including, but not limited to, any film, filmstrip, photograph,
negative, slide, photocopy, videotape, video laser disc, computer
hardware, computer software, computer floppy disc, data storage
media, CD-ROM, or computer-generated equipment or any other
computer-generated image that contains or incorporates in any
manner, any film or filmstrip, with intent to distribute or exhibit
to, or to exchange with, a person 18 years of age or older, or who
offers to distribute, distributes, or exhibits to, or exchanges with,
a person 18 years of age or older any matter, knowing that the
matter depicts a person under the age of 18 years personally
engaging in or personally simulating sexual conduct, as defined
in Section 311.4, shall be punished by begin delete imprisonment in the county end delete
begin delete jail for up to one year, or by a fine not exceeding two thousand end delete
begin delete dollars ($2,000), or by both that fine and imprisonment, or by end delete
imprisonment in the state prison. It is not necessary to prove
commercial consideration or that the matter is obscene in order to
establish a violation of this subdivision. begin delete If a person has been end delete
begin delete previously convicted of a violation of this subdivision, he or she end delete
begin delete is guilty of a felony. end delete

(d) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or distribution,
or in this state possesses, prepares, publishes, produces, develops,
duplicates, or prints any representation of information, data, or
image, including, but not limited to, any film, filmstrip, photograph,
negative, slide, photocopy, videotape, video laser disc, computer
hardware, computer software, computer floppy disc, data storage
media, CD-ROM, or computer-generated equipment or any other
computer-generated image that contains or incorporates in any
manner, any film or filmstrip, with intent to distribute or exhibit
to, or to exchange with, a person under 18 years of age, or who
offers to distribute, distributes, or exhibits to, or exchanges with,
a person under 18 years of age any matter, knowing that the matter
depicts a person under the age of 18 years personally engaging in
or personally simulating sexual conduct, as defined in Section
311.4, is guilty of a felony. It is not necessary to prove commercial
consideration or that the matter is obscene in order to establish a
violation of this subdivision.

(e) Subdivisions (a) to (d), inclusive, do not apply to the
activities of law enforcement and prosecuting agencies in the
investigation and prosecution of criminal offenses, to legitimate
medical, scientific, or educational activities, or to lawful conduct
between spouses.

(f) This section does not apply to matter that depicts a legally
emancipated child under the age of 18 years or to lawful conduct
between spouses when one or both are under the age of 18 years.

(g) It does not constitute a violation of this section for a
telephone corporation, as defined by Section 234 of the Public
Utilities Code, to carry or transmit messages described in this
chapter or to perform related activities in providing telephone
services.

SEC. 3.  

Section 311.3 of the Penal Code is amended to read:

311.3.  

(a) A person is guilty of sexual exploitation of a child
if he or she knowingly develops, duplicates, prints, or exchanges
any representation of information, data, or image, including, but
not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware,
computer software, computer floppy disc, data storage media,
CD-ROM, or computer-generated equipment or any other
computer-generated image that contains or incorporates in any
manner, any film or filmstrip that depicts a person under the age
of 18 years engaged in an act of sexual conduct.

(b) As used in this section, “sexual conduct” means any of the
following:

(1) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.

(2) Penetration of the vagina or rectum by any object.

(3) Masturbation for the purpose of sexual stimulation of the
viewer.

(4) Sadomasochistic abuse for the purpose of sexual stimulation
of the viewer.

(5) Exhibition of the genitals or the pubic or rectal area of any
person for the purpose of sexual stimulation of the viewer.

(6) Defecation or urination for the purpose of sexual stimulation
of the viewer.

(c) Subdivision (a) does not apply to the activities of law
enforcement and prosecution agencies in the investigation and
prosecution of criminal offenses or to legitimate medical, scientific,
or educational activities, or to lawful conduct between spouses.

(d) Every person who violates subdivision (a) shall be punished
begin delete by a fine of not more than two thousand dollars ($2,000) or by end delete
begin delete imprisonment in a county jail for not more than one year, or by end delete
begin delete both that fine and imprisonment. If the person has been previously end delete
begin delete convicted of a violation of subdivision (a) or any section of this end delete
begin delete chapter, he or she shall be punished end delete by imprisonment in the state
prison.

(e) The provisions of this section do not apply to an employee
of a commercial film developer who is acting within the scope of
his or her employment and in accordance with the instructions of
his or her employer, provided that the employee has no financial
interest in the commercial developer by which he or she is
employed.

(f) Subdivision (a) does not apply to matter that is unsolicited
and is received without knowledge or consent through a facility,
system, or network over which the person or entity has no control.

SEC. 4.  

Section 311.11 of the Penal Code is amended to read:

311.11.  

(a) Every person who knowingly possesses or controls
any matter, representation of information, data, or image, including,
but not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware,
computer software, computer floppy disc, data storage media,
CD-ROM, or computer-generated equipment or any other
computer-generated image that contains or incorporates in any
manner, any film or filmstrip, the production of which involves
the use of a person under the age of 18 years, knowing that the
matter depicts a person under the age of 18 years personally
engaging in or simulating sexual conduct, as defined in subdivision
(d) of Section 311.4, is guilty of a felony and shall be punished by
imprisonment in the state prison begin delete , or a county jail for up to one end delete
begin delete year, or by a fine not exceeding two thousand five hundred dollars end delete
begin delete ($2,500), or by both the fine and imprisonment end delete .

(b) Every person who commits a violation of subdivision (a),
and who has been previously convicted of a violation of this
section, an offense requiring registration under the Sex Offender
Registration Act, or an attempt to commit any of the
above-mentioned offenses, is guilty of a felony and shall be
punished by imprisonment in the state prison for two, four, or six
years.

(c) It is not necessary to prove that the matter is obscene in order
to establish a violation of this section.

(d) This section does not apply to drawings, figurines, statues,
or any film rated by the Motion Picture Association of America,
nor does it apply to live or recorded telephone messages when
transmitted, disseminated, or distributed as part of a commercial
transaction.

SEC. 5.  

Section 1203.4 of the Penal Code is amended to read:

1203.4.  

(a) (1) In any case in which a defendant has fulfilled
the conditions of probation for the entire period of probation, or
has been discharged prior to the termination of the period of
probation, or in any other case in which a court, in its discretion
and the interests of justice, determines that a defendant should be
granted the relief available under this section, the defendant shall,
at any time after the termination of the period of probation, if he
or she is not then serving a sentence for any offense, on probation
for any offense, or charged with the commission of any offense,
be permitted by the court to withdraw his or her plea of guilty or
plea of nolo contendere and enter a plea of not guilty; or, if he or
she has been convicted after a plea of not guilty, the court shall
set aside the verdict of guilty; and, in either case, the court shall
thereupon dismiss the accusations or information against the
defendant and except as noted below, he or she shall thereafter be
released from all penalties and disabilities resulting from the
offense of which he or she has been convicted, except as provided
in Section 13555 of the Vehicle Code. The probationer shall be
informed, in his or her probation papers, of this right and privilege
and his or her right, if any, to petition for a certificate of
rehabilitation and pardon. The probationer may make the
application and change of plea in person or by attorney, or by the
probation officer authorized in writing. However, in any subsequent
prosecution of the defendant for any other offense, the prior
conviction may be pleaded and proved and shall have the same
effect as if probation had not been granted or the accusation or
information dismissed. The order shall state, and the probationer
shall be informed, that the order does not relieve him or her of the
obligation to disclose the conviction in response to any direct
question contained in any questionnaire or application for public
office, for licensure by any state or local agency, or for contracting
with the California State Lottery Commission.

(2) Dismissal of an accusation or information pursuant to this
section does not permit a person to own, possess, or have in his or
her custody or control any firearm or prevent his or her conviction
under Chapter 2 (commencing with Section 29800) of Division 9
of Title 4 of Part 6.

(3) Dismissal of an accusation or information underlying a
conviction pursuant to this section does not permit a person
prohibited from holding public office as a result of that conviction
to hold public office.

(4) This subdivision shall apply to all applications for relief
under this section which are filed on or after November 23, 1970.

(b) Subdivision (a) of this section does not apply to any
misdemeanor that is within the provisions of Section 42002.1 of
the Vehicle Code, to any violation of subdivision (c) of Section
286, Section 288, subdivision (c) of Section 288a, Section 288.5,
begin delete or end delete subdivision (j) of Section 289, begin insert Section 311.1, 311.2, 311.3, or end insert
begin insert 311.11, or end insert any felony conviction pursuant to subdivision (d) of
Section 261.5, or to any infraction.

(c) (1) Except as provided in paragraph (2), subdivision (a)
does not apply to a person who receives a notice to appear or is
otherwise charged with a violation of an offense described in
subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle
Code.

(2) If a defendant who was convicted of a violation listed in
paragraph (1) petitions the court, the court in its discretion and in
the interests of justice, may order the relief provided pursuant to
subdivision (a) to that defendant.

(d) A person who petitions for a change of plea or setting aside
of a verdict under this section may be required to reimburse the
court for the actual costs of services rendered, whether or not the
petition is granted and the records are sealed or expunged, at a rate
to be determined by the court not to exceed one hundred fifty
dollars ($150), and to reimburse the county for the actual costs of
services rendered, whether or not the petition is granted and the
records are sealed or expunged, at a rate to be determined by the
county board of supervisors not to exceed one hundred fifty dollars
($150), and to reimburse any city for the actual costs of services
rendered, whether or not the petition is granted and the records are
sealed or expunged, at a rate to be determined by the city council
not to exceed one hundred fifty dollars ($150). Ability to make
this reimbursement shall be determined by the court using the
standards set forth in paragraph (2) of subdivision (g) of Section
987.8 and shall not be a prerequisite to a person’s eligibility under
this section. The court may order reimbursement in any case in
which the petitioner appears to have the ability to pay, without
undue hardship, all or any portion of the costs for services
established pursuant to this subdivision.

(e) (1) Relief shall not be granted under this section unless the
prosecuting attorney has been given 15 days’ notice of the petition
for relief. The probation officer shall notify the prosecuting attorney
when a petition is filed, pursuant to this section.

(2) It shall be presumed that the prosecuting attorney has
received notice if proof of service is filed with the court.

(f) If, after receiving notice pursuant to subdivision (e), the
prosecuting attorney fails to appear and object to a petition for
dismissal, the prosecuting attorney may not move to set aside or
otherwise appeal the grant of that petition.

(g) Notwithstanding the above provisions or any other provision
of law, the Governor shall have the right to pardon a person
convicted of a violation of subdivision (c) of Section 286, Section
288, subdivision (c) of Section 288a, Section 288.5, or subdivision
(j) of Section 289, if there are extraordinary circumstances.

SEC. 6.  

Section 11165.7 of the Penal Code, as amended by
Section 1.15 of Chapter 521 of the Statutes of 2012, is amended
to read:

11165.7.  

(a) As used in this article, “mandated reporter” is
defined as any of the following:

(1) A teacher.

(2) An instructional aide.

(3) A teacher’s aide or teacher’s assistant employed by a public
or private school.

(4) A classified employee of a public school.

(5) An administrative officer or supervisor of child welfare and
attendance, or a certificated pupil personnel employee of a public
or private school.

(6) An administrator of a public or private day camp.

(7) An administrator or employee of a public or private youth
center, youth recreation program, or youth organization.

(8) An administrator or employee of a public or private
organization whose duties require direct contact and supervision
of children.

(9) An employee of a county office of education or the State
Department of Education whose duties bring the employee into
contact with children on a regular basis.

(10) A licensee, an administrator, or an employee of a licensed
community care or child day care facility.

(11) A Head Start program teacher.

(12) A licensing worker or licensing evaluator employed by a
licensing agency, as defined in Section 11165.11.

(13) A public assistance worker.

(14) An employee of a child care institution, including, but not
limited to, foster parents, group home personnel, and personnel of
residential care facilities.

(15) A social worker, probation officer, or parole officer.

(16) An employee of a school district police or security
department.

(17) A person who is an administrator or presenter of, or a
counselor in, a child abuse prevention program in a public or
private school.

(18) A district attorney investigator, inspector, or local child
support agency caseworker, unless the investigator, inspector, or
caseworker is working with an attorney appointed pursuant to
Section 317 of the Welfare and Institutions Code to represent a
minor.

(19) A peace officer, as defined in Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2, who is not otherwise
described in this section.

(20) A firefighter, except for volunteer firefighters.

(21) A physician and surgeon, psychiatrist, psychologist, dentist,
resident, intern, podiatrist, chiropractor, licensed nurse, dental
hygienist, optometrist, marriage and family therapist, clinical social
worker, professional clinical counselor, or any other person who
is currently licensed under Division 2 (commencing with Section
500) of the Business and Professions Code.

(22) An emergency medical technician I or II, paramedic, or
other person certified pursuant to Division 2.5 (commencing with
Section 1797) of the Health and Safety Code.

(23) A psychological assistant registered pursuant to Section
2913 of the Business and Professions Code.

(24) A marriage and family therapist trainee, as defined in
subdivision (c) of Section 4980.03 of the Business and Professions
Code.

(25) An unlicensed marriage and family therapist intern
registered under Section 4980.44 of the Business and Professions
Code.

(26) A state or county public health employee who treats a minor
for venereal disease or any other condition.

(27) A coroner.

(28) A medical examiner or other person who performs
autopsies.

(29) A commercial film and photographic print or image
processor as specified in subdivision (e) of Section 11166. As used
in this article, “commercial film and photographic print or image
processor” means a person who develops exposed photographic
film into negatives, slides, or prints, or who makes prints from
negatives or slides, or who prepares, publishes, produces, develops,
duplicates, or prints any representation of information, data, or an
image, including, but not limited to, any film, filmstrip, photograph,
negative, slide, photocopy, videotape, video laser disk, computer
hardware, computer software, computer floppy disk, data storage
medium, CD-ROM, computer-generated equipment, or
computer-generated image, for compensation. The term includes
any employee of that person; it does not include a person who
develops film or makes prints or images for a public agency.

(30) A child visitation monitor. As used in this article, “child
visitation monitor” means a person who, for financial
compensation, acts as a monitor of a visit between a child and
another person when the monitoring of that visit has been ordered
by a court of law.

(31) An animal control officer or humane society officer. For
the purposes of this article, the following terms have the following
meanings:

(A) “Animal control officer” means a person employed by a
city, county, or city and county for the purpose of enforcing animal
control laws or regulations.

(B) “Humane society officer” means a person appointed or
employed by a public or private entity as a humane officer who is
qualified pursuant to Section 14502 or 14503 of the Corporations
Code.

(32) A clergy member, as specified in subdivision (d) of Section
11166. As used in this article, “clergy member” means a priest,
minister, rabbi, religious practitioner, or similar functionary of a
church, temple, or recognized denomination or organization.

(33) Any custodian of records of a clergy member, as specified
in this section and subdivision (d) of Section 11166.

(34) An employee of any police department, county sheriff’s
department, county probation department, or county welfare
department.

(35) An employee or volunteer of a Court Appointed Special
Advocate program, as defined in Rule 5.655 of the California Rules
of Court.

(36) A custodial officer, as defined in Section 831.5.

(37) A person providing services to a minor child under Section
12300 or 12300.1 of the Welfare and Institutions Code.

(38) An alcohol and drug counselor. As used in this article, an
“alcohol and drug counselor” is a person providing counseling,
therapy, or other clinical services for a state licensed or certified
drug, alcohol, or drug and alcohol treatment program. However,
alcohol or drug abuse, or both alcohol and drug abuse, is not, in
and of itself, a sufficient basis for reporting child abuse or neglect.

(39) A clinical counselor trainee, as defined in subdivision (g)
of Section 4999.12 of the Business and Professions Code.

(40) A clinical counselor intern registered under Section 4999.42
of the Business and Professions Code.

(41) An employee or administrator of a public or private
postsecondary institution, whose duties bring the administrator or
employee into contact with children on a regular basis, or who
supervises those whose duties bring the administrator or employee
into contact with children on a regular basis, as to child abuse or
neglect occurring on that institution’s premises or at an official
activity of, or program conducted by, the institution. Nothing in
this paragraph shall be construed as altering the lawyer-client
privilege as set forth in Article 3 (commencing with Section 950)
of Chapter 4 of Division 8 of the Evidence Code.

(42) An athletic coach, athletic administrator, or athletic director
employed by any public or private school that provides any
combination of instruction for kindergarten, or grades 1 to 12,
inclusive.

(43) (A) A commercial computer technician as specified in
subdivision (e) of Section 11166. As used in this article,
“commercial computer technician” means a person who works for
a company that is in the business of repairing, installing, or
otherwise servicing a computer or computer component, including,
but not limited to, a computer part, device, memory storage or
recording mechanism, auxiliary storage recording or memory
capacity, or any other material relating to the operation and
maintenance of a computer or computer network system, for a fee.
An employer who provides an electronic communications service
or a remote computing service to the public shall be deemed to
comply with this article if that employer complies with Section
2258A of Title 18 of the United States Code.

(B) An employer of a commercial computer technician may
implement internal procedures for facilitating reporting consistent
with this article. These procedures may direct employees who are
mandated reporters under this paragraph to report materials
described in subdivision (e) of Section 11166 to an employee who
is designated by the employer to receive the reports. An employee
who is designated to receive reports under this subparagraph shall
be a commercial computer technician for purposes of this article.
A commercial computer technician who makes a report to the
designated employee pursuant to this subparagraph shall be deemed
to have complied with the requirements of this article and shall be
subject to the protections afforded to mandated reporters, including,
but not limited to, those protections afforded by Section 11172.

(44) Any athletic coach, including, but not limited to, an
assistant coach or a graduate assistant involved in coaching, at
public or private postsecondary institutions.

begin insert

(45) A librarian, as specified in subdivision (e) of Section 11166.

end insert

(b) Except as provided in paragraph (35) of subdivision (a),
volunteers of public or private organizations whose duties require
direct contact with and supervision of children are not mandated
reporters but are encouraged to obtain training in the identification
and reporting of child abuse and neglect and are further encouraged
to report known or suspected instances of child abuse or neglect
to an agency specified in Section 11165.9.

(c) Employers are strongly encouraged to provide their
employees who are mandated reporters with training in the duties
imposed by this article. This training shall include training in child
abuse and neglect identification and training in child abuse and
neglect reporting. Whether or not employers provide their
employees with training in child abuse and neglect identification
and reporting, the employers shall provide their employees who
are mandated reporters with the statement required pursuant to
subdivision (a) of Section 11166.5.

(d) School districts that do not train their employees specified
in subdivision (a) in the duties of mandated reporters under the
child abuse reporting laws shall report to the State Department of
Education the reasons why this training is not provided.

(e) Unless otherwise specifically provided, the absence of
training shall not excuse a mandated reporter from the duties
imposed by this article.

(f) Public and private organizations are encouraged to provide
their volunteers whose duties require direct contact with and
supervision of children with training in the identification and
reporting of child abuse and neglect.

SEC. 7.  

Section 11166 of the Penal Code, as amended by
Section 2.5 of Chapter 521 of the Statutes of 2012, is amended to
read:

11166.  

(a) Except as provided in subdivision (d), and in
Section 11166.05, a mandated reporter shall make a report to an
agency specified in Section 11165.9 whenever the mandated
reporter, in his or her professional capacity or within the scope of
his or her employment, has knowledge of or observes a child whom
the mandated reporter knows or reasonably suspects has been the
victim of child abuse or neglect. The mandated reporter shall make
an initial report by telephone to the agency immediately or as soon
as is practicably possible, and shall prepare and send, fax, or
electronically transmit a written followup report within 36 hours
of receiving the information concerning the incident. The mandated
reporter may include with the report any nonprivileged
documentary evidence the mandated reporter possesses relating
to the incident.

(1) For purposes of this article, “reasonable suspicion” means
that it is objectively reasonable for a person to entertain a suspicion,
based upon facts that could cause a reasonable person in a like
position, drawing, when appropriate, on his or her training and
experience, to suspect child abuse or neglect. “Reasonable
suspicion” does not require certainty that child abuse or neglect
has occurred nor does it require a specific medical indication of
child abuse or neglect; any “reasonable suspicion” is sufficient.
For purposes of this article, the pregnancy of a minor does not, in
and of itself, constitute a basis for a reasonable suspicion of sexual
abuse.

(2) The agency shall be notified and a report shall be prepared
and sent, faxed, or electronically transmitted even if the child has
expired, regardless of whether or not the possible abuse was a
factor contributing to the death, and even if suspected child abuse
was discovered during an autopsy.

(3) Any report made by a mandated reporter pursuant to this
section shall be known as a mandated report.

(b) If after reasonable efforts a mandated reporter is unable to
submit an initial report by telephone, he or she shall immediately
or as soon as is practicably possible, by fax or electronic
transmission, make a one-time automated written report on the
form prescribed by the Department of Justice, and shall also be
available to respond to a telephone followup call by the agency
with which he or she filed the report. A mandated reporter who
files a one-time automated written report because he or she was
unable to submit an initial report by telephone is not required to
submit a written followup report.

(1) The one-time automated written report form prescribed by
the Department of Justice shall be clearly identifiable so that it is
not mistaken for a standard written followup report. In addition,
the automated one-time report shall contain a section that allows
the mandated reporter to state the reason the initial telephone call
was not able to be completed. The reason for the submission of
the one-time automated written report in lieu of the procedure
prescribed in subdivision (a) shall be captured in the Child Welfare
Services/Case Management System (CWS/CMS). The department
shall work with stakeholders to modify reporting forms and the
CWS/CMS as is necessary to accommodate the changes enacted
by these provisions.

(2) This subdivision shall not become operative until the
CWS/CMS is updated to capture the information prescribed in this
subdivision.

(3) This subdivision shall become inoperative three years after
this subdivision becomes operative or on January 1, 2009,
whichever occurs first.

(4) On the inoperative date of these provisions, a report shall
be submitted to the counties and the Legislature by the State
Department of Social Services that reflects the data collected from
automated one-time reports indicating the reasons stated as to why
the automated one-time report was filed in lieu of the initial
telephone report.

(5) Nothing in this section shall supersede the requirement that
a mandated reporter first attempt to make a report via telephone,
or that agencies specified in Section 11165.9 accept reports from
mandated reporters and other persons as required.

(c) Any mandated reporter who fails to report an incident of
known or reasonably suspected child abuse or neglect as required
by this section is guilty of a misdemeanor punishable by up to six
months confinement in a county jail or by a fine of one thousand
dollars ($1,000) or by both that imprisonment and fine. If a
mandated reporter intentionally conceals his or her failure to report
an incident known by the mandated reporter to be abuse or severe
neglect under this section, the failure to report is a continuing
offense until an agency specified in Section 11165.9 discovers the
offense.

(d) (1) A clergy member who acquires knowledge or a
reasonable suspicion of child abuse or neglect during a penitential
communication is not subject to subdivision (a). For the purposes
of this subdivision, “penitential communication” means a
communication, intended to be in confidence, including, but not
limited to, a sacramental confession, made to a clergy member
who, in the course of the discipline or practice of his or her church,
denomination, or organization, is authorized or accustomed to hear
those communications, and under the discipline, tenets, customs,
or practices of his or her church, denomination, or organization,
has a duty to keep those communications secret.

(2) Nothing in this subdivision shall be construed to modify or
limit a clergy member’s duty to report known or suspected child
abuse or neglect when the clergy member is acting in some other
capacity that would otherwise make the clergy member a mandated
reporter.

(3) (A) On or before January 1, 2004, a clergy member or any
custodian of records for the clergy member may report to an agency
specified in Section 11165.9 that the clergy member or any
custodian of records for the clergy member, prior to January 1,
1997, in his or her professional capacity or within the scope of his
or her employment, other than during a penitential communication,
acquired knowledge or had a reasonable suspicion that a child had
been the victim of sexual abuse that the clergy member or any
custodian of records for the clergy member did not previously
report the abuse to an agency specified in Section 11165.9. The
provisions of Section 11172 shall apply to all reports made pursuant
to this paragraph.

(B) This paragraph shall apply even if the victim of the known
or suspected abuse has reached the age of majority by the time the
required report is made.

(C) The local law enforcement agency shall have jurisdiction
to investigate any report of child abuse made pursuant to this
paragraph even if the report is made after the victim has reached
the age of majority.

(e) (1) Any commercial film, photographic print, or image
processor who has knowledge of or observes, within the scope of
his or her professional capacity or employment, any film,
photograph, videotape, negative, slide, or any representation of
information, data, or an image, including, but not limited to, any
film, filmstrip, photograph, negative, slide, photocopy, videotape,
video laser disc, computer hardware, computer software, computer
floppy disk, data storage medium, CD-ROM, computer-generated
equipment, or computer-generated image depicting a child under
16 years of age engaged in an act of sexual conduct, shall
immediately, or as soon as practically possible, telephonically
report the instance of suspected abuse to the law enforcement
agency located in the county in which the images are seen. Within
36 hours of receiving the information concerning the incident, the
reporter shall prepare and send, fax, or electronically transmit a
written followup report of the incident with a copy of the image
or material attached.

(2) Any commercial computer technician who has knowledge
of or observes, within the scope of his or her professional capacity
or employment, any representation of information, data, or an
image, including, but not limited, to any computer hardware,
computer software, computer file, computer floppy disk, data
storage medium, CD-ROM, computer-generated equipment, or
computer-generated image that is retrievable in perceivable form
and that is intentionally saved, transmitted, or organized on an
electronic medium, depicting a child under 16 years of age engaged
in an act of sexual conduct, shall immediately, or as soon as
practicably possible, telephonically report the instance of suspected
abuse to the law enforcement agency located in the county in which
the images or material are seen. As soon as practicably possible
after receiving the information concerning the incident, the reporter
shall prepare and send, fax, or electronically transmit a written
followup report of the incident with a brief description of the
images or materials.

begin insert

(3) Any librarian who has knowledge of or observes, within the
scope of his or her professional capacity or employment, any
representation of information, data, or image, including, but not
limited to, any computer hardware, computer software, computer
file, computer floppy disk, data storage medium, CD-ROM,
computer-generated equipment, or computer-generated image that
is retrievable in perceivable form and that is intentionally saved,
transmitted, or organized on an electronic medium, depicting a
child under 16 years of age engaged in an act of sexual conduct,
shall immediately, or as soon as practicably possible,
telephonically report the instance of suspected abuse to the law
enforcement agency located in the county in which the images or
materials are seen. As soon as practicably possible after receiving
the information concerning the incident, the reporter shall prepare
and send, fax, or electronically transmit a written followup report
of the incident with a brief description of the images or materials.

end insert begin delete

(3)

end delete

begin insert (4) end insert  For purposes of this article, “commercial computer
technician” includes an employee designated by an employer to
receive reports pursuant to an established reporting process
authorized by subparagraph (B) of paragraph (41) of subdivision
(a) of Section 11165.7.

begin delete

(4)

end delete

begin insert (5) end insert  As used in this subdivision, “electronic medium” includes,
but is not limited to, a recording, CD-ROM, magnetic disk memory,
magnetic tape memory, CD, DVD, thumbdrive, or any other
computer hardware or media.

begin delete

(5)

end delete

begin insert (6) end insert  As used in this subdivision, “sexual conduct” means any of
the following:

(A) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.

(B) Penetration of the vagina or rectum by any object.

(C) Masturbation for the purpose of sexual stimulation of the
viewer.

(D) Sadomasochistic abuse for the purpose of sexual stimulation
of the viewer.

(E) Exhibition of the genitals, pubic, or rectal areas of any
person for the purpose of sexual stimulation of the viewer.

(f) Any mandated reporter who knows or reasonably suspects
that the home or institution in which a child resides is unsuitable
for the child because of abuse or neglect of the child shall bring
the condition to the attention of the agency to which, and at the
same time as, he or she makes a report of the abuse or neglect
pursuant to subdivision (a).

(g) Any other person who has knowledge of or observes a child
whom he or she knows or reasonably suspects has been a victim
of child abuse or neglect may report the known or suspected
instance of child abuse or neglect to an agency specified in Section
11165.9. For purposes of this section, “any other person” includes
a mandated reporter who acts in his or her private capacity and
not in his or her professional capacity or within the scope of his
or her employment.

(h) When two or more persons, who are required to report,
jointly have knowledge of a known or suspected instance of child
abuse or neglect, and when there is agreement among them, the
telephone report may be made by a member of the team selected
by mutual agreement and a single report may be made and signed
by the selected member of the reporting team. Any member who
has knowledge that the member designated to report has failed to
do so shall thereafter make the report.

(i) (1) The reporting duties under this section are individual,
and no supervisor or administrator may impede or inhibit the
reporting duties, and no person making a report shall be subject
to any sanction for making the report. However, internal procedures
to facilitate reporting and apprise supervisors and administrators
of reports may be established provided that they are not inconsistent
with this article.

(2) The internal procedures shall not require any employee
required to make reports pursuant to this article to disclose his or
her identity to the employer.

(3) Reporting the information regarding a case of possible child
abuse or neglect to an employer, supervisor, school principal,
school counselor, coworker, or other person shall not be a substitute
for making a mandated report to an agency specified in Section
11165.9.

(j) A county probation or welfare department shall immediately,
or as soon as practicably possible, report by telephone, fax, or
electronic transmission to the law enforcement agency having
jurisdiction over the case, to the agency given the responsibility
for investigation of cases under Section 300 of the Welfare and
Institutions Code, and to the district attorney’s office every known
or suspected instance of child abuse or neglect, as defined in
Section 11165.6, except acts or omissions coming within
subdivision (b) of Section 11165.2, or reports made pursuant to
Section 11165.13 based on risk to a child which relates solely to
the inability of the parent to provide the child with regular care
due to the parent’s substance abuse, which shall be reported only
to the county welfare or probation department. A county probation
or welfare department also shall send, fax, or electronically transmit
a written report thereof within 36 hours of receiving the information
concerning the incident to any agency to which it makes a
telephone report under this subdivision.

(k) A law enforcement agency shall immediately, or as soon as
practicably possible, report by telephone, fax, or electronic
transmission to the agency given responsibility for investigation
of cases under Section 300 of the Welfare and Institutions Code
and to the district attorney’s office every known or suspected
instance of child abuse or neglect reported to it, except acts or
omissions coming within subdivision (b) of Section 11165.2, which
shall be reported only to the county welfare or probation
department. A law enforcement agency shall report to the county
welfare or probation department every known or suspected instance
of child abuse or neglect reported to it which is alleged to have
occurred as a result of the action of a person responsible for the
child’s welfare, or as the result of the failure of a person responsible
for the child’s welfare to adequately protect the minor from abuse
when the person responsible for the child’s welfare knew or
reasonably should have known that the minor was in danger of
abuse. A law enforcement agency also shall send, fax, or
electronically transmit a written report thereof within 36 hours of
receiving the information concerning the incident to any agency
to which it makes a telephone report under this subdivision.

SEC. 8.  

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.