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, 3, or 5 years.
If the matter used was harmful matter, as defined, but does not 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 16 months,begin delete 2,end deletebegin insert or 2end insert 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.
The bill would make it either a felony, punishable by imprisonment in the state prison for 16 months,begin delete 2,end deletebegin insert or 2end insert or 5 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:
Section 288.2 of the Penal Code is repealed.
Section 288.2 is added to the Penal Code, to read:
(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, three, or
17five 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 for 16 months,begin delete two,end deletebegin insert or twoend insert or three years.
23(3) For purposes of this subdivision, the offense described in
24paragraph (2) shall include
all of the elements described in
25paragraph (1), except as to the element modified in paragraph (2).
26(b) For purposes of this section, “sexual conduct” has the same
27meaning as defined in subdivision (d) of Section 311.4.
28(c) For purposes of this section, “harmful matter” has the same
29meaning as defined in Section 313.
P4 1(d) For purposes of this section, an intimate body part includes
2the sexual organ, anus, groin, or buttocks of any person, or the
3breasts of a female.
4(e) Prosecution under this section shall not preclude prosecution
5under any other provision of law.
6(f) It shall be a defense to any
prosecution under this section
7that a parent or guardian committed the act charged in aid of
8legitimate sex education.
9(g) It shall be a defense in any prosecution under this section
10that the act charged was committed in aid of legitimate scientific
11or educational purposes.
12(h) It does not constitute a violation of this section for a
13telephone corporation, as defined in Section 234 of the Public
14Utilities Code, a cable television company franchised pursuant to
15Section 53066 of the Government Code, or any of its affiliates, an
16Internet service provider, or commercial online service provider,
17to carry, broadcast, or transmit messages described in this section
18or perform related activities in providing telephone, cable
19television, Internet, or commercial online
services.
Section 311.11 of the Penal Code is amended to read:
(a) Every person who knowingly possesses or controls
22any matter, representation of information, data, or image, including,
23but not limited to, any film, filmstrip, photograph, negative, slide,
24photocopy, videotape, video laser disc, computer hardware,
25computer software, computer floppy disc, data storage media,
26CD-ROM, or computer-generated equipment or any other
27computer-generated image that contains or incorporates in any
28manner, any film or filmstrip, the production of which involves
29the use of a person under 18 years of age, knowing that the matter
30depicts a person under 18 years of age personally engaging in or
31simulating sexual conduct, as defined in subdivision (d) of Section
32311.4, is guilty of a felony
and shall be punished by imprisonment
33in the state prison, or a county jail for up to one year, or by a fine
34not exceeding two thousand five hundred dollars ($2,500), or by
35both the fine and imprisonment.
36(b) Every person who commits a violation of subdivision (a),
37and who has been previously convicted of a violation of this
38section, an offense requiring registration under the Sex Offender
39Registration Act, or an attempt to commit any of the
40above-mentioned offenses, is guilty of a felony and shall be
P5 1punished by imprisonment in the state prison for two, four, or six
2years.
3(c) Each person who commits a violation of subdivision (a)
4shall be punished by imprisonment in the state prison for
16
5months,begin delete two,end deletebegin insert or twoend insert or five years, or shall be punished by
6imprisonment in a county jail for up to one year, or by a fine not
7exceeding two thousand five hundred dollars ($2,500), or by both
8the fine and imprisonment, if one of the following factors exists:
9(1) The matter contains more than 600 images that violate
10subdivision (a), and the matter contains 10 or more images
11involving a prepubescent minor or a minor who has not attained
1212 years of age.
13(2) The matter portrays sexual sadism or sexual masochism
14involving a person under 18 years of age. For purposes of this
15section, “sexual sadism”
means the intentional infliction of pain
16for purposes of sexual gratification or stimulation. For purposes
17of this section, “sexual masochism” means intentionally
18experiencing pain for purposes of sexual gratification or
19stimulation.
20(d) It is not necessary to prove that the matter is obscene in order
21to establish a violation of this section.
22(e) This section does not apply to drawings, figurines, statues,
23or any film rated by the Motion Picture Association of America,
24nor does it apply to live or recorded telephone messages when
25transmitted, disseminated, or distributed as part of a commercial
26transaction.
27(f) For purposes of determining the number of images under
28paragraph (1) of subdivision (c), the following
shall apply:
29(1) Each photograph, picture, computer, or computer-generated
30image, or any similar visual depiction shall be considered to be
31one image.
32(2) Each video, video-clip, movie, or similar visual depiction
33shall be considered to have 50 images.
No reimbursement is required by this act pursuant to
35Section 6 of Article XIII B of the California Constitution because
36the only costs that may be incurred by a local agency or school
37district will be incurred because this act creates a new crime or
38infraction, eliminates a crime or infraction, or changes the penalty
39for a crime or infraction, within the meaning of Section 17556 of
40the Government Code, or changes the definition of a crime within
P6 1the meaning of Section 6 of Article XIII B of the California
2Constitution.
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