Amended in Assembly August 21, 2013

Amended in Senate May 28, 2013

Amended in Senate April 2, 2013

Senate BillNo. 145


Introduced by Senator Pavley

(Principal coauthor: Assembly Member Gorell)

(Coauthors: Senators Anderson and Knight)

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

If the matter used was harmful matter, as defined, but does not include a depiction of a minor engaged in sexual conduct,begin delete or if the matter used was not harmful matter, but did include a depiction of a minor engaged in sexual conduct,end delete 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 forbegin delete 2, 3, or 4end deletebegin insert 16 months, 2, or 3end insert years.

begin delete

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 16 months, or 2 or 3 years.

end delete

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.

The bill would make it either a felony, punishable by imprisonment in the state prison forbegin delete 2, 4, or 6end deletebegin insert 16 months, 2, or 5end 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, as defined.

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, 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 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:

P3    1

SECTION 1.  

Section 288.2 of the Penal Code is repealed.

2

SEC. 2.  

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

3

288.2.  

(a) (1) Every person who knows, should have known,
4or believes that another person is a minor, and who knowingly
5distributes, sends, causes to be sent, exhibits, or offers to distribute
6or exhibit by any means, including by physical delivery, telephone,
7electronic communication, or in person, any harmful matter that
8depicts a minor or minors engaging in sexual conduct, to the other
9person with the intent of arousing, appealing to, or gratifying the
10lust or passions or sexual desires of that person or of the minor,
11and with the intent or for the purposes of engaging in sexual
12intercourse, sodomy, or oral copulation with the other person, or
13with the intent that either person touch an intimate body part of
14the other, is guilty of a misdemeanor, punishable by imprisonment
15in a county jail not exceeding one year, or is guilty of a felony,
16punishable by imprisonment in the state prison for two,begin delete four, or
17sixend delete
begin insert three, or fiveend insert years.

18(2) If the matter used by the person is harmful matter but does
19not include a depiction or depictions of a minor or minors engaged
20in sexual conduct, the offense is punishable by imprisonment in a
21county jail not exceeding one year, or by imprisonment in the state
22prison forbegin delete two, three, or fourend deletebegin insert 16 months, two, or threeend insert years.

begin delete

23(3) If the matter used by the person includes a depiction or
24depictions of a minor or minors engaged in sexual conduct, but is
25not harmful matter, the offense is punishable by imprisonment in
P4    1a county jail not exceeding one year, or by imprisonment in the
2state prison for two, three, or four years.

3(4) If the matter used by the person is either harmful matter, or
4includes a depiction or depictions of a minor or minors engaged
5in sexual conduct, or both, and the person intends to engage in
6sexual conduct with a minor, or to induce a minor to engage in
7sexual conduct, that does not involve sexual intercourse, sodomy,
8or oral copulation with the other person, and does not involve
9either person touching an intimate body part of the other, the
10offense is punishable by imprisonment in a county jail not
11exceeding one year, or by imprisonment in the state prison for 16
12months, or two or three years.

end delete
begin delete

16 13(5)

end delete

14begin insert(3)end insert For purposes of this subdivision,begin delete eachend deletebegin insert theend insert offense described
15inbegin delete paragraphs (2) to (4), inclusive,end deletebegin insert paragraph (2)end insert shall include all
16begin insert of theend insert elements described in paragraph (1), except as to the element
17begin delete or elementsend delete modified inbegin delete each subsequentend delete paragraphbegin insert (2)end insert.

18(b) For purposes of this section, “sexual conduct” has the same
19meaning as defined in subdivision (d) of Section 311.4.

20(c) For purposes of this section, “harmful matter” has the same
21meaning as defined in Section 313.

22(d) For purposes of this section, an intimate body part includes
23the sexual organ, anus, groin, or buttocks of any person, or the
24breasts of a female.

25(e) Prosecution under this section shall not preclude prosecution
26under any other provision of law.

27(f) It shall be a defense to any prosecution under this section
28that a parent or guardian committed the act charged in aid of
29legitimate sex education.

30(g) It shall be a defense in any prosecution under this section
31that the act charged was committed in aid of legitimate scientific
32or educational purposes.

33(h) It does not constitute a violation of this section for a
34telephone corporation, as defined in Section 234 of the Public
35Utilities Code, a cable television company franchised pursuant to
36Section 53066 of the Government Code, or any of its affiliates, an
37Internet service provider, or commercial online service provider,
38to carry, broadcast, or transmit messages described in this section
39or perform related activities in providing telephone, cable
40television, Internet, or commercial online services.

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SEC. 3.  

Section 311.11 of the Penal Code is amended to read:

2

311.11.  

(a) Every person who knowingly possesses or controls
3any matter, representation of information, data, or image, including,
4but not limited to, any film, filmstrip, photograph, negative, slide,
5photocopy, videotape, video laser disc, computer hardware,
6computer software, computer floppy disc, data storage media,
7CD-ROM, or computer-generated equipment or any other
8computer-generated image that contains or incorporates in any
9manner, any film or filmstrip, the production of which involves
10the use of a person under 18 years of age, knowing that the matter
11depicts a person under 18 years of age personally engaging in or
12simulating sexual conduct, as defined in subdivision (d) of Section
13311.4, is guilty of a felony and shall be punished by imprisonment
14in the state prison, or a county jail for up to one year, or by a fine
15not exceeding two thousand five hundred dollars ($2,500), or by
16both the fine and imprisonment.

17(b) Every person who commits a violation of subdivision (a),
18and who has been previously convicted of a violation of this
19section, an offense requiring registration under the Sex Offender
20Registration Act, or an attempt to commit any of the
21above-mentioned offenses, is guilty of a felony and shall be
22punished by imprisonment in the state prison for two, four, or six
23years.

24(c) Each person who commits a violation of subdivision (a)
25shall be punished by imprisonment in the state prison forbegin delete two, four,
26or sixend delete
begin insert 16 months, two, or fiveend insert years, or shall be punished by
27imprisonment in a county jail for up to one year, or by a fine not
28exceeding two thousand five hundred dollars ($2,500), or by both
29the fine and imprisonment, if one of the following factors exists:

30(1) The matter contains more than 600 images that violate
31subdivision (a), and the matter contains 10 or more images
32involving a prepubescent minor or a minor who has not attained
3312 years of age.

34(2) The matter portrays sexual sadism or sexual masochism
35involving a person under 18 years of age. For purposes of this
36section, “sexual sadism” means the intentional infliction of pain
37for purposes of sexual gratification or stimulation. For purposes
38of this section, “sexual masochism” means intentionally
39experiencing pain for purposes of sexual gratification or
40stimulation.

P6    1(d) It is not necessary to prove that the matter is obscene in order
2to establish a violation of this section.

3(e) This section does not apply to drawings, figurines, statues,
4or any film rated by the Motion Picture Association of America,
5nor does it apply to live or recorded telephone messages when
6transmitted, disseminated, or distributed as part of a commercial
7transaction.

8(f) For purposes of determining the number of images under
9paragraph (1) of subdivision (c), the following shall apply:

10(1) Each photograph, picture, computer, or computer-generated
11image, or any similar visual depiction shall be considered to be
12one image.

13(2) Each video, video-clip, movie, or similar visual depiction
14shall be considered to havebegin delete 75end deletebegin insert 50end insert images.

15

SEC. 4.  

No reimbursement is required by this act pursuant to
16Section 6 of Article XIII B of the California Constitution because
17the only costs that may be incurred by a local agency or school
18district will be incurred because this act creates a new crime or
19infraction, eliminates a crime or infraction, or changes the penalty
20for a crime or infraction, within the meaning of Section 17556 of
21the Government Code, or changes the definition of a crime within
22the meaning of Section 6 of Article XIII B of the California
23Constitution.



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