Amended in Senate May 28, 2013

Amended in Senate April 2, 2013

Senate Bill No. 145

Introduced by Senator Pavley

(Principal coauthor: Assembly Member Gorell)

begin insert

(Coauthors: Senators Anderson and Knight)

end insert

January 31, 2013

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

LEGISLATIVE COUNSEL’S DIGEST

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

(1) Existing law makes it begin delete either end delete 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.

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 begin delete 3, 5, or 7 end delete begin insert 2, 4, or 6 end insert years.

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.

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 begin delete 18 end delete begin insert 16 end insert months, or 2 or 3 years.

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

(2) 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. begin delete A subsequent violation of this provision is punishable by imprisonment in the state prison for 2, 4, or 6 years. end delete

begin delete 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 end delete begin insert The end insert bill would begin delete also end delete make it either a felony, punishable by imprisonment in the state prison for begin delete 3, 5, or 7 end delete begin insert 2, 4, or 6 end insert 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 matter portrays sexual sadism or sexual masochism involving a minor begin insert , as defined end insert .

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 begin delete by increasing the sentencing for a subsequent possession of child pornography conviction from 2, 4, or 6 years to 3, 5, or 7 years end delete begin insert , end insert 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 begin insert local end insert 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 288.2 of the Penal Code is repealed.

SEC. 2.  

Section 288.2 is added to the Penal Code, to read:

288.2.  

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

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

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

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

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

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

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

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

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

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

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

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

SEC. 3.  

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 18 years of age, knowing that the matter
depicts a person under 18 years of age 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, or a county jail for up to one year, or by a fine
not exceeding two thousand five hundred dollars ($2,500), or by
both the fine and imprisonment.

(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 begin delete three, five, or
seven end delete begin insert two, four, or six end insert years.

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

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

(2) The matter portrays sexual sadism or sexual masochism
involving a person under 18 years of age. For purposes of this
section, “sexual sadism” means the intentional infliction of pain
for purposes of sexual gratification or stimulation. For purposes
of this section, “sexual masochism” means intentionally
experiencing pain for purposes of sexual gratification or
stimulation.

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

(e) 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.

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

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

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

SEC. 4.  

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.