BILL NUMBER: AB 20 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY FEBRUARY 25, 2013
INTRODUCED BY Assembly Member Waldron
DECEMBER 3, 2012
An act to amend Sections 311.1, 311.2, 311.3, 311.11,
Section 1203.4 of , 11165.7,
and 11166 of and to add Section 311.12 to, the
Penal Code, relating to obscene matter.
LEGISLATIVE COUNSEL'S DIGEST
AB 20, as amended, 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 generally prohibits the production, distribution, and
production of any representation of information, data, or image, as
specified, of any obscene matter that depicts a person under 18 years
of age personally engaging in or personally simulating sexual
conduct, as defined. Violations of these provisions are crimes.
This bill would provide that every person who is convicted of a
violation of specified offenses relating to obscene matter involving
minors, as specified, in which the violation is committed on, or via,
a government-owned computer or via a government-owned computer
network, or in which the production, transportation, or distribution
of which involves the use, possession, or control of government-owned
property shall, in addition to any imprisonment of fine imposed for
the commission of the underlying offense, be punished by a fine not
exceeding $2,000, unless the court determines that the defendant does
not have the ability to pay. The bill would provide that revenue
from any fines collected would be transferred for deposit into a
county fund established for that purpose and allocated for sexual
assault investigator training, high technology crime task forces,
public agencies and nonprofit corporations that provide shelter,
counseling, or other direct services for victims of human
trafficking, and multidisciplinary teams involved in the prosecution
of child abuse cases, as specified.
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
no . State-mandated local program: yes
no .
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 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 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.
(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 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.
(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.
SECTION 1. Section 311.12 is added to the
Penal Code , to read:
311.12. (a) (1) Every person who is convicted of a violation of
Section 311.1, 311.2, 311.3, 311.10, or 311.11 in which the offense
involves the production, use, possession, control, or advertising of
matter or image that depicts a person under 18 years of age
personally engaging in or simulating sexual conduct, as defined in
subdivision (d) of Section 311.4, in which the violation is committed
on, or via, a government-owned computer or via a government-owned
computer network, shall, in addition to any imprisonment or fine
imposed for the commission of the underlying offense, be punished by
a fine not exceeding two thousand dollars ($2,000), unless the court
determines that the defendant does not have the ability to pay.
(2) Every person who is convicted of a violation of Section 311.1,
311.2, 311.3, 311.10, or 311.11 in which the offense involves the
production, use, possession, control, or advertising of matter or
image that depicts a person under 18 years of age personally engaging
in or simulating sexual conduct, as defined in subdivision (d) of
Section 311.4, in which the production, transportation, or
distribution of which involves the use, possession or control of
government-owned property shall, in addition to any imprisonment or
fine imposed for the commission of the underlying offense, be
punished by a fine not exceeding two thousand dollars ($2,000),
unless the court determines that the defendant does not have the
ability to pay.
(b) The fines in subdivision (a) shall not be subject to the
provisions of Sections 76000 and 76000.5 of the Government Code, or
Sections 1464 and 1465.7 of this code.
(c) Revenue from any fines collected pursuant to this section
shall be deposited into a county fund established for that purpose
and allocated as follows, and a county may transfer all or part of
any of those allocations to another county for the allocated use:
(1) Twenty-five percent for sexual assault investigator training.
(2) Twenty-five percent for high technology crime task forces.
(3) Twenty-five percent for public agencies and nonprofit
corporations that provide shelter, counseling, or other direct
services for victims of human trafficking.
(4) Twenty-five percent for multidisciplinary teams.
(d) As used in this section:
(1) "Computer" includes any computer hardware, computer software,
computer floppy disk, data storage medium, or CD-ROM.
(2) "Government-owned" includes property and networks owned or
operated by state government, city government, city and county
government, county government, a public library, or a public college
or university.
(3) "Multidisciplinary teams" means a child-focused,
facility-based program in which representatives from many
disciplines, including law enforcement, child protection,
prosecution, medical and mental health, and victim and child advocacy
work together to conduct interviews and make team decisions about
the investigation, treatment, management, and prosecution of child
abuse cases, including child sexual abuse cases. It is the intent of
the Legislature that this multidisciplinary team approach will
protect victims of child abuse from multiple interviews, result in a
more complete understanding of case issues, and provide the most
effective child and family focused system response possible.
(e) Nothing in this section shall be construed to require any
government or government entity to retain data in violation of any
provision of state or federal law.
SEC. 5. SEC. 2. 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,
subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or
311.11, or 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.
(45) A librarian, as specified in subdivision (e) of Section
11166.
(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.
(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.
(4) 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.
(5) 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.
(6) 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.