BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 145|
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THIRD READING
Bill No: SB 145
Author: Pavley (D), et al.
Amended: 5/28/13
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/9/13
AYES: Hancock, Anderson, Block, De Le�n, Knight, Liu, Steinberg
SENATE APPROPRIATIONS COMMITTEE : 5-1, 5/23/13
AYES: De Le�n, Walters, Gaines, Hill, Lara
NOES: Padilla
NO VOTE RECORDED: Steinberg
SUBJECT : Sex offenders: child pornography
SOURCE : Ventura County District Attorney
DIGEST : This bill increase the prison terms for aggravated
forms of possession of child pornography, and redefines the
crime and associated punishments for the use of harmful matter
to seduce a child, as specified.
ANALYSIS :
Existing law:
1.Provides that possessing or importing into California any
obscene matter for sale or distribution is guilty of a
misdemeanor for a first conviction. A second or subsequent
conviction is a felony, with increased fines.
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2.Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any
obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct, with the intent to
distribute, exhibit, or exchange such material, is guilty of
either a misdemeanor or a felony, punishable by imprisonment
in the county jail up to one year or in the state prison for
16 months, two or three years and a fine not to exceed
$10,000.
3.Specifies that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any
obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct for commercial
purposes is guilty of a felony, punishable by imprisonment in
the state prison for two, three, or six years and a fine up to
$100,000.
4.Provides that any person who hires or uses a minor to assist
in the preparation or distribution of obscene matter is guilty
of a misdemeanor. If the person has a prior conviction, the
crime is a felony.
5.Provides that any person who hires or uses a minor to assist
in the possession, preparation or distribution of obscene
matter for commercial purposes is guilty of a felony,
punishable by imprisonment in the state prison for three, six,
or eight years.
6.Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any matter
depicting a person under the age of l8 years engaging in or
simulating sexual conduct (sexual posing, masturbation, sex
acts) to distribute, exhibit, or exchange with a minor is
guilty of a felony, punishable by imprisonment in the state
prison for 16 months, two or three years.
7.Provides that possession of material that depicts a person
under 18 years of age engaged in actual or simulated sexual
conduct is an alternate felony-misdemeanor, punishable by
imprisonment in the county jail for up to one year, or by
imprisonment in state prison for 16 months, two years, or
three years, or by a fine of up to $2,500, or both.
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8.Provides that if a criminal defendant is convicted of
possession of material that depicts a person under the age of
18 engaged in actual or simulated sexual conduct and the
defendant has been previously convicted of any crime for which
the defendant must register as a sex offender, the defendant
is guilty of a felony, punishable by a term of two, four, or
six years in prison and a fine of up to $10,000.
9.Provides that crimes involving depictions of minors engaged in
actual or simulated sexual conduct) does not apply to
"drawings, figurines, statues, or any film rated by the Motion
Picture Association of America."
10.Provides that the state can prohibit non-obscene matter that
depicts a person under the age of 18 personally engaging in
or personally simulating sexual conduct. Such laws are based
on the compelling state interest in protecting children from
abuse. (New York v. Ferber (1982) 458 U.S. 747.)
11.Includes the following definitions:
A. "Matter" is broadly defined, as "any book, magazine,
newspaper, or other printed or written material, or any
picture, drawing, photograph, motion picture, or other
pictorial representation, or any statue or figure, or any
recording, transcription, or mechanical, chemical, or
electrical reproduction, or any other article, equipment or
material." Matter also includes "commercial live or
recorded telephone messages."
B. "Sexual conduct", actual or simulated, is defined as:
masturbation, sexual intercourse, oral copulation, anal
intercourse, bestiality, sexual sadism, lewd or lascivious
penetration of the vagina or rectum by any object,
exhibition of the genital, pubic or rectal areas for
purposes of sexual stimulation of the viewer, and lewdly
performed excretory functions.
C. "Obscene matter" is matter, taken as a whole, that to
the average person, applying contemporary statewide
standards, appeals to the prurient interest and depicts or
describes sexual conduct in a patently offensive way and
lacks serious literary, artistic, political, or scientific
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value.
D. "Distribute" is defined as to "transfer possession of,
whether with or without consideration."
E. "Harmful Matter" is essentially obscenity from the
perspective of a minor: Material that, to the average
person applying community standards, appeals to prurient
interests and which depicts or describes sexual conduct in
a patently offensive manner and which lacks serious
artistic, literary political or scientific value for
minors.
1. Provides that one who distributes material or sends "harmful
matter" to a minor by any means, including but not limited
to, telephone messages, electronic mail or the Internet, with
the intent to seduce the minor into engaging in "sexual act
involving physical contact between the perpetrator and the
minor" is guilty of an alternate misdemeanor-felony,
punishable by imprisonment for up to one year in the county
jail or imprisonment in the state prison for 16 months, two
years or three years. A subsequent conviction is a felony,
with a prison term of 16 months, two years or three years.
(Pen. Code Sec. 288.2; People v. Jensen (2003) 114
Cal.App.4th 224, 239-241)
2. Provides that a person who contacts or communicates with a
minor for the purpose of committing a specified sex crime is
guilty of a felony, punishable by the prison terms prescribed
for the sex crime the person intended to commit. This crime
includes an element that the defendant knew or should have
known the person contacted was a minor.
3. Provides that a person who has an unnatural sexual interest
in children who arranges a meeting with a minor, or a person
the defendant believes is a minor, for purposes of engaging
in sexual activity is guilty of a misdemeanor. If the
defendant has been previously convicted of a crime for which
sex offender registration is required, the defendant is
guilty of a felony. If the defendant goes to the arranged
meeting place, the crime is a felony, punishable by
imprisonment in state prison for two, three of four years.
This bill:
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1.Provides that "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
two, four, or six years."
2.Provides that "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.Provides that "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.Provides that "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."
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5.States the each person who commits a violation as specified,
shall be punished by imprisonment in the state prison for two,
four, or six years, or shall be punished 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 one of the
following factors exists:
A. The matter contains more than 600 images as specified,
and the matter contains 10 or more images involving a
prepubescent minor or a minor who has not attained 12 years
of age.
B. The matter portrays sexual sadism or sexual masochism
involving a person under 18 years of age, as specified.
1.Provides that for purposes of determining the number of images
the following shall apply:
A. Each photograph, picture, computer, or
computer-generated image, or any similar visual depiction
shall be considered to be one image.
B. Each video, video-clip, movie, or similar visual
depiction shall be considered to have 75 images.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
For every 25% of annual convictions to state prison for
possession of child pornography warranting the higher
sentences, increased state incarceration costs in the range
of $950,000 to $1.9 million (General Fund), potentially
compounding to $5.7 million for overlapping sentences, for
the multi-year increase to the prison term triad under the
felony penalty of the wobbler for aggravated forms of child
pornography possession.
Unknown, increased annual state incarceration costs in
the hundreds of thousands of dollars (General Fund) to the
extent longer sentences are served in state prison for the
crime of the use of harmful matter to seduce a child. To
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the extent additional cases are prosecuted in state court
under the increased penalty structure, costs could
potentially be higher.
SUPPORT : (Verified 5/27/13)
Ventura County District Attorney (source)
California District Attorneys Association
California Police Chiefs Association
Crime Victims United of California
San Bernardino Sheriff's Department
OPPOSITION : (Verified 5/27/13)
ACLU
California Attorneys for Criminal Justice
California Public Defenders Association
ARGUMENTS IN SUPPORT : According to the author's office, child
pornography production necessarily involves the abuse of
children, such as capturing images of infants being raped. The
United States Department of Justice (DOJ) estimates that
pornographers have recorded the abuse of more than one million
children in the U.S. alone, with 200 new images posted daily.
DOJ also reports an increasing trend towards younger victims,
including infants, and greater brutality. When images are
instantly sent around the world through the Internet, children
are re-victimized long after the physical abuse. A recent New
York Times story, "The Price of Stolen Childhood," profiled
young people driven into virtual seclusion because sexual images
of them are spread across the Internet.
This bill sets meaningful penalties for the most culpable child
pornography possessors, such as those who possess thousands of
images of infants and toddlers engaged in sadistic or
masochistic sexual acts. Without strong deterrents, the demand
created by child pornography possessors will fuel production and
distribution of images that severely harm children.
ARGUMENTS IN OPPOSITION : The California Attorneys for
Criminal Justice (CACJ) states, "Recent advents in the training
of peace officers by federal agents, to detect and apprehend
persons who violate Penal Code Section 311.11 will cause a
tremendous influx of prosecutions to our state courts. Given
the numbers of potential defendants online, and the relative
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ease by which these persons may be electronically detected, the
possibility for prosecution in numbers exceeding all other
crimes combined is subject only to the whim of law enforcement.
CACJ is concerned that there is virtually no nexus between the
putative goal of eliminating P.C. Sec. 311.11 conduct, and
amplifying the potential state punishments for such conduct.
JG:ej 5/28/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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