Amended in Senate April 2, 2013

Senate BillNo. 145


Introduced by Senator Pavley

(Principal coauthor: Assembly Member Gorell)

January 31, 2013


An act to amend Section 311.11 ofbegin insert, and to repeal and add Section 288.2 of,end insert the Penal Code, relating to sex offenders.

LEGISLATIVE COUNSEL’S DIGEST

SB 145, as amended, Pavley. Sex offenders: child pornography.

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(1) Existing law makes it either a crime for a person, with knowledge that another person is a minor, to knowingly distribute, send, cause to be sent, exhibit, or offer to distribute or exhibit by electronic mail or the Internet any harmful matter, as defined, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or the minor, and with the intent or the purpose of seducing a minor.

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This bill would instead make it a misdemeanor or a felony for every person who knows, should have known, or believes that another person is a minor to distribute or exhibit harmful matter, as defined, depicting a minor or minors engaging in sexual conduct, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of engaging in sexual intercourse, sodomy, oral copulation, or with the intent that either person touch an intimate body part of the other. The bill would make a violation of these provisions punishable by imprisonment in a county jail not exceeding one year, or in the state prison for 3, 5, or 7 years.

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If the matter used was harmful matter, as defined, but does not include a depiction of a minor engaged in sexual conduct, or if the matter used was not harmful matter, but did include a depiction of a minor engaged in sexual conduct, the bill would make a violation of these provisions punishable by imprisonment in a county jail not exceeding one year, or in the state prison for 2, 3, or 4 years.

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If the person used the matter with the intent to engage in sexual conduct with a minor that does not involve sexual intercourse, sodomy, oral copulation, or the touching of an intimate body part of the other person, the bill would make a violation of these provisions punishable by imprisonment in a county jail not exceeding one year, or in the state prison for 18 months, or 2 or 3 years.

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By increasing the punishment for a crime, this bill would impose a state-mandated local program.

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Existing

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begin insert(2)end insertbegin insertend insertbegin insertExistingend insert 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;begin delete 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;end delete 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:

P3    1begin insert

begin insertSECTION 1.end insert  

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begin insertSection 288.2 of the end insertbegin insertPenal Codeend insertbegin insert is repealed.end insert

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2

288.2.  

(a) (1) Every person who, with knowledge that a person
3is a minor, or who fails to exercise reasonable care in ascertaining
4the true age of a minor, knowingly distributes, sends, causes to be
5sent, exhibits, or offers to distribute or exhibit by any means,
6including, but not limited to, live or recorded telephone messages,
7any harmful matter, as defined in Section 313, to a minor with the
8intent of arousing, appealing to, or gratifying the lust or passions
9or sexual desires of that person or of a minor, and with the intent
10or for the purpose of seducing a minor, is guilty of a public offense
11and shall be punished by imprisonment in the state prison or in a
12county jail.

13(2) A person convicted of a second and any subsequent
14conviction for a violation of this subdivision is guilty of a felony
15and shall be punished by imprisonment in state prison.

16(b) (1) Every person who, with knowledge that a person is a
17minor, knowingly distributes, sends, causes to be sent, exhibits,
18or offers to distribute or exhibit by electronic mail, the Internet,
19as defined in Section 17538 of the Business and Professions Code,
20or a commercial online service, any harmful matter, as defined in
21Section 313, to a minor with the intent of arousing, appealing to,
22or gratifying the lust or passions or sexual desires of that person
P4    1or of a minor, and with the intent, or for the purpose of seducing
2a minor, is guilty of a public offense and shall be punished by
3imprisonment in the state prison or in a county jail.

4(2) A person convicted of a second and any subsequent
5conviction for a violation of this subdivision is guilty of a felony
6punishable by imprisonment in the state prison.

7(c) It shall be a defense to any prosecution under this section
8that a parent or guardian committed the act charged in aid of
9legitimate sex education.

10(d) It shall be a defense in any prosecution under this section
11that the act charged was committed in aid of legitimate scientific
12or educational purposes.

13(e) It does not constitute a violation of this section for a
14telephone corporation, as defined in Section 234 of the Public
15Utilities Code, a cable television company franchised pursuant to
16Section 53066 of the Government Code, or any of its affiliates, an
17Internet service provider, or commercial online service provider,
18to carry, broadcast, or transmit messages described in this section
19or perform related activities in providing telephone, cable
20television, Internet, or commercial online services.

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21begin insert

begin insertSEC. 2.end insert  

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begin insertSection 288.2 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

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22

begin insert288.2.end insert  

(a) (1) Every person who knows, should have known,
23or believes that another person is a minor, and who knowingly
24distributes, sends, causes to be sent, exhibits, or offers to distribute
25or exhibit by any means, including by physical delivery, telephone,
26electronic communication, or in person, any harmful matter that
27depicts a minor or minors engaging in sexual conduct, to the other
28person with the intent of arousing, appealing to, or gratifying the
29lust or passions or sexual desires of that person or of the minor,
30and with the intent or for the purposes of engaging in sexual
31intercourse, sodomy, or oral copulation with the other person, or
32with the intent that either person touch an intimate body part of
33the other, is guilty of a misdemeanor, punishable by imprisonment
34in a county jail not exceeding one year, or is guilty of a felony,
35punishable by imprisonment in the state prison for three, five, or
36seven years.

37(2) If the matter used by the person is harmful matter but does
38not include a depiction or depictions of a minor or minors engaged
39in sexual conduct, the offense is punishable by imprisonment in a
P5    1county jail not exceeding one year, or by imprisonment in the state
2prison for two, three, or four years.

3(3) If the matter used by the person includes a depiction or
4depictions of a minor or minors engaged in sexual conduct, but is
5not harmful matter, the offense is punishable by imprisonment in
6a county jail not exceeding one year, or by imprisonment in the
7state prison for two, three, or four years.

8(4) If the matter used by the person is either harmful matter, or
9includes a depiction or depictions of a minor or minors engaged
10in sexual conduct, or both, and the person intends to engage in
11sexual conduct with a minor, or to induce a minor to engage in
12sexual conduct, that does not involve sexual intercourse, sodomy,
13or oral copulation with the other person, and does not involve
14either person touching an intimate body part of the other, the
15offense is punishable by imprisonment in a county jail not
16exceeding one year, or by imprisonment in the state prison for 16
17months, or two or three years.

18(5) For purposes of this subdivision, each offense described in
19paragraphs (2) to (4), inclusive, shall include all elements
20described in paragraph (1), except as to the element or elements
21modified in each subsequent paragraph.

22(b) For purposes of this section, “sexual conduct” has the same
23meaning as defined in subdivision (d) of Section 311.4.

24(c) For purposes of this section, “harmful matter” has the same
25meaning as defined in Section 313.

26(d) For purposes of this section, an intimate body part includes
27the sexual organ, anus, groin, or buttocks of any person, or the
28breasts of a female.

29(e) Prosecution under this section shall not preclude prosecution
30under any other provision of law.

31(f) It shall be a defense to any prosecution under this section
32that a parent or guardian committed the act charged in aid of
33legitimate sex education.

34(g) It shall be a defense in any prosecution under this section
35that the act charged was committed in aid of legitimate scientific
36or educational purposes.

37(h) It does not constitute a violation of this section for a
38telephone corporation, as defined in Section 234 of the Public
39Utilities Code, a cable television company franchised pursuant to
40Section 53066 of the Government Code, or any of its affiliates, an
P6    1Internet service provider, or commercial online service provider,
2to carry, broadcast, or transmit messages described in this section
3or perform related activities in providing telephone, cable
4television, Internet, or commercial online services.

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5

begin deleteSECTION 1.end delete
6begin insertSEC. 3.end insert  

Section 311.11 of the Penal Code is amended to read:

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311.11.  

(a) Every person who knowingly possesses or controls
8any matter, representation of information, data, or image, including,
9but not limited to, any film, filmstrip, photograph, negative, slide,
10photocopy, videotape, video laser disc, computer hardware,
11computer software, computer floppy disc, data storage media,
12CD-ROM, or computer-generated equipment or any other
13computer-generated image that contains or incorporates in any
14manner, any film or filmstrip, the production of which involves
15the use of a person under 18 years of age, knowing that the matter
16depicts a person under 18 years of age personally engaging in or
17simulating sexual conduct, as defined in subdivision (d) of Section
18311.4, is guilty of a felony and shall be punished by imprisonment
19in the state prison, or a county jail for up to one year, or by a fine
20not exceeding two thousand five hundred dollars ($2,500), or by
21both the fine and imprisonment.

22(b) Every person who commits a violation of subdivision (a),
23and who has been previously convicted of a violation of this
24section, an offense requiring registration under the Sex Offender
25Registration Act, or an attempt to commit any of the
26above-mentioned offenses, is guilty of a felony and shall be
27punished by imprisonment in the state prison for three, five, or
28seven years.

29(c) Each person who commits a violation of subdivision (a)
30shall be punished by imprisonment in the state prison for three,
31five, or seven years, or shall be punished by imprisonment in a
32county jail for up to one year, or by a fine not exceeding two
33thousand five hundred dollars ($2,500), or by both the fine and
34imprisonment, if one of the following factors exists:

35(1) The matter contains more than 600 images that violate
36subdivision (a), and the matter contains 10 or more images
37involving a prepubescent minor or a minor who has not attained
3812 years of age.

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39(2) The person intends to use the matter to persuade, induce,
40entice, coerce, or facilitate the travel of a minor for the purpose of
P7    1committing an offense listed in subdivision (c) of Section 290, or
2has attempted to commit any of the offenses described in this
3paragraph.

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23 4(3)

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5begin insert(2)end insert The matter portrays sexual sadism or sexual masochism
6involving a person under 18 years of age.begin insert For purposes of this
7section, “sexual sadism” means the intentional infliction of pain
8for purposes of sexual gratification or stimulation. For purposes
9of this section, “sexual masochism” means intentionally
10experiencing pain for purposes of sexual gratification or
11stimulation.end insert

12(d) It is not necessary to prove that the matter is obscene in order
13to establish a violation of this section.

14(e) This section does not apply to drawings, figurines, statues,
15or any film rated by the Motion Picture Association of America,
16nor does it apply to live or recorded telephone messages when
17transmitted, disseminated, or distributed as part of a commercial
18transaction.

19(f) For purposes of determining the number of images under
20paragraph (1) of subdivision (c), the following shall apply:

21(1) Each photograph, picture, computer, or computer-generated
22image, or any similar visual depiction shall be considered to be
23one image.

24(2) Each video, video-clip, movie, or similar visual depiction
25shall be considered to have 75 images.

26

begin deleteSEC. 2.end delete
27begin insertSEC. 4.end insert  

No reimbursement is required by this act pursuant to
28Section 6 of Article XIII B of the California Constitution because
29the only costs that may be incurred by a local agency or school
30district will be incurred because this act creates a new crime or
31infraction, eliminates a crime or infraction, or changes the penalty
32for a crime or infraction, within the meaning of Section 17556 of
33the Government Code, or changes the definition of a crime within
34the meaning of Section 6 of Article XIII B of the California
35Constitution.



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