SB 145, as introduced, Pavley. Sex offenders: child pornography.
Existing law makes it a felony, punishable by imprisonment in the state prison for 16 months, or 2 or 3 years, or in a county jail for up to one year, or by a fine not exceeding $2,500, or by both the fine and imprisonment, to knowingly possess or control child pornography, as specified. A subsequent violation of this provision is punishable by imprisonment in the state prison for 2, 4, or 6 years.
This bill would delete the sentencing structure of 2, 4, or 6 years for a subsequent violation of that provision and increase it to 3, 5, or 7 years. This bill would also make it either a felony, punishable by imprisonment in the state prison for 3, 5, or 7 years, or a misdemeanor, punishable by imprisonment in a county jail for up to one year, or by a fine not exceeding $2,500, or by both the fine and imprisonment, if the person knowingly possesses or controls child pornography, as specified, and the matter contains more than 600 images, as defined, at least 10 of which are images of prepubescent minors or minors under 12 years of age; or the person intends to use the images to persuade, induce, entice, coerce, or facilitate the travel of a minor to engage in sexual activity; or the matter portrays sexual sadism or sexual masochism involving a minor.
This bill would make other technical, nonsubstantive, and conforming changes.
Existing law, Proposition 83, as approved by the voters at the November 7, 2006, statewide general election, amended Section 311.11 of the Penal Code. The act authorizes the Legislature to amend its provisions to expand the scope of its application or to increase the punishments or penalties established by the act by a statute passed by a majority vote of each house thereof.
Because the bill would increase punishments provided in the act by increasing the sentencing for a subsequent possession of child pornography conviction from 2, 4, or 6 years to 3, 5, or 7 years the bill may be passed by a majority vote of each house of the Legislature.
Because a violation of the provisions would be a crime, this bill would impose a state-mandated 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 311.11 of the Penal Code is amended to
2read:
(a) Every person who knowingly possesses or controls
4any matter, representation of information, data, or image, including,
5but not limited to, any film, filmstrip, photograph, negative, slide,
6photocopy, videotape, video laser disc, computer hardware,
7computer software, computer floppy disc, data storage media,
8CD-ROM, or computer-generated equipment or any other
9computer-generated image that contains or incorporates in any
10manner, any film or filmstrip, the production of which involves
11the use of a person underbegin delete the age ofend delete 18 yearsbegin insert of ageend insert, knowing that
12the matter depicts a person underbegin delete the age ofend delete
18 yearsbegin insert of ageend insert
13 personally engaging in or simulating sexual conduct, as defined
14in subdivision (d) of Section 311.4, is guilty of a felony and shall
15be punished by imprisonment in the state prison, or a county jail
16for up to one year, or by a fine not exceeding two thousand five
17hundred dollars ($2,500), or by both the fine and imprisonment.
P3 1(b) Every person who commits a violation of subdivision (a),
2and who has been previously convicted of a violation of this
3section, an offense requiring registration under the Sex Offender
4Registration Act, or an attempt to commit any of the
5above-mentioned offenses, is guilty of a felony and shall be
6punished by imprisonment in the state prison forbegin delete two, four, or sixend delete
7begin insert
three, five, or sevenend insert years.
8(c) Each person who commits a violation of subdivision (a) shall
9be punished by imprisonment in the state prison for three, five, or
10seven years, or shall be punished by imprisonment in a county jail
11for up to one year, or by a fine not exceeding two thousand five
12hundred dollars ($2,500), or by both the fine and imprisonment,
13if one of the following factors exists:
14(1) The matter contains more than 600 images that violate
15subdivision (a), and the matter contains 10 or more images
16involving a prepubescent minor or a
minor who has not attained
1712 years of age.
18(2) The person intends to use the matter to persuade, induce,
19entice, coerce, or facilitate the travel of a minor for the purpose
20of committing an offense listed in subdivision (c) of Section 290,
21or has attempted to commit any of the offenses described in this
22paragraph.
23(3) The matter portrays sexual sadism or sexual masochism
24involving a person under 18 years of age.
25(c)
end delete
26begin insert(d)end insert It is not necessary to prove that the matter is obscene in order
27to establish a violation of this section.
28(d)
end delete
29begin insert(e)end insert This section does not apply to drawings, figurines, statues,
30or any film rated by the Motion Picture Association of America,
31nor does it apply to live or recorded telephone messages when
32transmitted, disseminated, or distributed as part of a commercial
33transaction.
34(f) For purposes of determining the number of images under
35paragraph (1) of subdivision (c), the following shall apply:
36(1) Each photograph, picture, computer, or computer-generated
37image, or any similar visual depiction shall be considered to be
38one image.
39(2) Each video, video-clip, movie, or similar visual depiction
40shall be considered to have 75 images.
No reimbursement is required by this act pursuant to
2Section 6 of Article XIII B of the California Constitution because
3the only costs that may be incurred by a local agency or school
4district will be incurred because this act creates a new crime or
5infraction, eliminates a crime or infraction, or changes the penalty
6for a crime or infraction, within the meaning of Section 17556 of
7the Government Code, or changes the definition of a crime within
8the meaning of Section 6 of Article XIII B of the California
9Constitution.
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