BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 145
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          Date of Hearing:   June 25, 2013
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                     SB 145 (Pavley) - As Amended:  May 28, 2013

           
          SUMMARY  :  Increases prison sentences for specified crimes  
          related to child pornography by creating new categories of  
          offenses.  Specifically,  this bill  :  

          1)Provides that where a defendant is convicted of possession of  
            child pornography and one of the following circumstances is  
            established, the defendant shall be guilty of an alternate  
            felony-misdemeanor, punishable by a prison term of two, four,  
            or six years (increased from 16 months, two or three years)  
            and a fine of up to $2,500, imprisonment in the county jail  
            for up to one year or both:

             a)   The material contains more than 600 images of child  
               pornography and 10 or more images depict prepubescent  
               minors or minors under 12-years-of-age.

             b)   The material portrays sexual sadism or sexual masochism  
               involving minors.

          2)Defines "sexual sadism" as the intentional infliction of pain  
            for purposes of sexual gratification or stimulation and  
            "sexual masochism" as the experiencing of pain for purposes of  
            sexual gratification or stimulation.

          3)Redefines the crime of using harmful matter to seduce a child  
            in the following manner:  The crime is an alternate  
            felony-misdemeanor, punishable by imprisonment in the county  
            jail for up to one year, a fine of up to $1,000, or both, or  
            by imprisonment in state prison for two, four or six years  
            (increased from 16 months, two or three years) and a fine  
            under the following circumstances:

             a)   The defendant furnished, displayed or otherwise  
               presented to the minor harmful matter - obscene material  
               from the perspective of a minor - that also depicted minors  








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               engaged in sexual conduct, as defined by the child  
               pornography laws.

             b)   The defendant used any means of communication, including  
               electronic communication, in-person contact, or any  
               delivery or mail service. The defendant intended to induce  
               or persuade the minor to engage in sexual acts involving  
               sexual intercourse, sodomy, oral copulation, sexual  
               penetration or the touching by either party of an intimate  
               body part of the other.

             c)   Where all the elements of the crime are established,  
               except that the defendant used either harmful matter or  
               child pornography, the crime is an alternate  
               felony-misdemeanor, punishable by imprisonment in the  
               county jail for up to one year, a fine of up to $1,000, or  
               both, or by imprisonment in state prison for two, three or  
               four years.

             d)   Where all the other elements of the crime are  
               established, but the defendant intended that the minor  
               engage in sexual conduct that did not involve sexual  
               intercourse, sodomy, oral copulation, sexual penetration or  
               the touching by one party of an intimate body part of the  
               other, the crime is an is an alternate felony-misdemeanor,  
               punishable by imprisonment in the county jail for up to one  
               year, a fine of up to $1,000, or both, or by imprisonment  
               in state prison for 16 months, two years or three years.

          4)Defines an "intimate body part" as the sexual organ, anus,  
            groin or buttocks of any person, or the breast of a female.  


           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.  [Penal Code  
            Sections 311.2(a) and 311.9.]  

           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  








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            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, 2 or 3 years and a fine not to exceed $10,000.   
            (Penal Code Section 311.1.)
           
           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.  [Penal Code Section 311.2(b).]  

           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.  [Penal Code Section 311.4(a).]  

           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.  [Penal Code Section 311.4(b).]
           
           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, 2 or 3 years.  [Penal Code Section 311.2  
            (d).]  

           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 1 year, or by  
            imprisonment in state prison for 16 months, 2 years, or 3  
            years, or by a fine of up to $2,500, or both.  [Penal Code  
            Section 311.11(a).]   

           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  








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            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 2, 4, or 6  
            years in prison and a fine of up to $10,000.  [Penal Code  
            Section 311.11(b).]   

           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 [MPAA]."  [Penal Code Section  
            311.11(d).]  

           10)Defines "matter" 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."  [Penal  
            Code Section 311(b).]  

           11)Defines sexual conduct, actual or simulated, 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.  (Penal Code Section 311.4.
           
           12)Defines 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 value.  [Penal  
            Code Section 311(a).]  

           13)Defines "distribute" as to "transfer possession of, whether  
            with or without consideration."  [Penal Code Section 311(d).]   

           
           14)Defines "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  








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            political or scientific value for minors.  (Penal Code Section  
            313.) 
           
           15)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 convictions is a felony,  
            with a prison term of 16 months, two years or three years.   
            [Penal Code Section 288.2;  People v. Jensen (2003) 114  
            Cal.App.4th 224, 239-241.]
           
           16)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.  (Penal Code Section  
            288.3.)
           
           17)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.  (Pen. Code Section  
            288.4.)  

          FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Child  
            pornography production necessarily involves the abuse of  
            children, such as capturing images of infants and toddlers  
            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  








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            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/masochistic sexual acts.  Without strong deterrents,  
            child pornography possessors will continue to harm children  
            and fuel the demand for production and distribution of images  
            in this industry. 

            "California has the weakest child pornography possession law  
            in the nation.  The current sentences range from probation to  
            three years in prison.   Child pornography possession can net  
            a life sentence in some states and a 20-year federal sentence  
            where the images are of children under the age of 12 years.    
            Unlike other states, California does not impose higher  
            penalties where the defendant possesses myriad or especially  
            egregious sexual images of children. 

            "According to a 2012 National District Attorneys Association  
            survey, no other state has a lower maximum sentence for the  
            possession of child pornography where aggravating factors,  
            such as number of images, age of the child and images of  
            sexually sadistic images involving children are present.  For  
            example, a person prosecuted in California state court who  
            possesses 10,000 videos of infants and toddlers bound in  
            leather, currently faces a maximum of three years in state  
            prison.  He will likely serve half of that, or 18 months.   

            "Recently, the term 'child abuse images or material' and  
            'depicted child sexual abuse material' have been adopted by  
            scholars and law enforcement to dispel the false implications  
            of consent and to eliminate the distance from abusive nature  
            of material the term pornography implies.

            "A range of research addresses the link between child  
            pornography and the perpetration of child sexual abuse.   
            According at the Mayo Clinic of the U.S. (2008), studies and  








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            case reports indicate that 30% to 80% of individuals who  
            viewed child pornography and 76% of individuals who were  
            arrested for Internet child pornography had molested a child.   
            A 2008 longitudinal study of convicted child molesters in  
            America published by the official journal of the International  
            Society for Research in Aggression, found that pornography's  
            use correlated significantly with their rate of sexually  
            reoffending. In addition, it was found that the content of the  
            pornography (pornography containing deviant content) was a  
            high risk factor for all test groups.  A study by the American  
            Federal Bureau of Prisons (2009) found that 85% of child  
            pornography offenders had admitted to sexually abusing minors.  
             A 1987 report by the U.S. National Institute of Justice  
            described 'a disturbing   correlation between traders of child  
            pornography and acts of child molestation.'   

            "Previous Legislation: Several provisions in SB 145 address  
            concerns about previous legislation (SB 203- Harman 2009).   
            Among them, SB 203 allowed additional counts of child  
            pornography for each victim and/or each piece of media, and  
            did not distinguish upon the nature of material.  These  
            provisions were criticized because if there were thousands of  
            victims/images in a case (which is not unusual), there could  
            conceivably be thousands of additional counts and potentially  
            hundreds of years of additional incarceration.  

            "Also, SB 145 provides increased penalties for situations in  
            which harmful material is used with the intent to 'groom'  
            minors for a variety of sexual purposes.  The use of images of  
            child sexual abuse to induce a child to engage in sexually  
            abusive acts with an adult perpetrator greatly increases the  
            harm to children and the culpability of the perpetrator.  

            "Finally, it must be noted that while the bill authorizes  
            increased penalties for egregious crimes, the increased  
            sentences are optional for prosecutors and judges.  The  
            legislation still permits a judge in an appropriate case, to  
            give a misdemeanor disposition.  The bill only allows a  
            sentence of more than three years in rare, truly egregious  
            cases." 

           2)Sentencing Considerations  :  This bill increases prison terms.   
            
          
              a)   Child Pornography Possession  :  This bill raises  








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               penalties for aggravated forms of child pornography  
               possession.  The bill sets a penalty of an alternate  
               felony-misdemeanor, punishable by a prison term of two,  
               four, or six years and a fine of up to $2,500, imprisonment  
               in the county jail for up to one year or both for newly  
               described child pornography offenses: 1) possession of more  
               than 600 images, at least 10 of depict minors who are  
               prepubescent or under the age of 12; and 2) possession of  
               images of sexual sadism or masochism.  Unlike the penalty  
               for child pornography recidivists, these newly defined  
               offenses are alternate felony misdemeanors.  As such, a  
               prosecutor can charge the defendant with a misdemeanor or a  
               felony, and a judge can deem the crime a misdemeanor.   

                As is discussed throughout this analysis, the reason that  
               child pornography is illegal is that children are sexually  
               abused in the making of the images.  These degrading images  
               can essentially follow the person depicted through life,  
               especially on the Internet.  California law does not impose  
               different penalties depending on the kind and amount of  
               child pornography a person possesses, regardless of whether  
               the images are of infants being raped or teenagers sending  
               nude photos over a phone.  Arguably, this bill raises  
               penalties for some of the most egregious offenses.  The  
               author further notes that California has particularly low  
               child pornography penalties in relation to other  
               jurisdictions, especially for egregious offenses.   
           
              b)   Use of Child Pornography  :   The luring offense described  
               in this bill involves the use of illegal sexual material to  
               induce a child to engage in substantial sexual conduct.   
               The bill raises the prison term for using harmful matter  
               (obscenity from the perspective of a minor) to induce a  
               minor to engage in substantial sexual acts (vaginal or anal  
               intercourse, oral copulation, sexual penetration touching  
               an intimate body party) from a wobbler with a 16 month,  
               2-year or 3-year term, to a wobbler with a 2, 4 or 6-year  
               term.  Less egregious forms of this conduct is either a  
               wobbler with a 2, 3 or 4-year prison term, or a wobbler  
               with a 16 month, 2-year or 3-year sentence.

           3)Prison Overcrowding  :  The provisions of this bill increase  
            underlying prison sentences for the above referenced offenses  
            related to child pornography.  









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          When the offense is currently punishable by a prison term, any  
            proposed increase in that prison term causes concern for  
            additional prison overcrowding.  As California's prison crisis  
            worsens, close attention should be paid to legislation  
            increasing prison overcrowding.  The California Policy  
            Research Center (CPRC) recently issued a report on the status  
            of California's prisons.  The report stated, "California has  
            the largest prison population of any state in the nation, with  
            more than 171,000 inmates in 33 adult prisons, and the state's  
            annual correctional spending, including jails and probation,  
            amounts to $8.92 billion.  Despite the high cost of  
            corrections, fewer California prisoners participate in  
            relevant treatment programs than comparable states, and its  
            inmate-to-officer ratio is considerably higher.  While the  
            nation's prisons average one correctional officer to every 4.5  
            inmates, the average California officer is responsible for 6.5  
            inmates.  Although officer salaries are higher than average,  
            their ranks are spread dangerously thin and there is a severe  
            vacancy rate."  [Petersilia, Understanding California  
            Corrections, California Policy Research Center (May 2006).]   
            California's prison population will likely exceed 180,000 by  
            2010.

          According to the Little Hoover Commission, "Lawsuits filed in  
            three federal courts alleging that the current level of  
            overcrowding constitutes cruel and unusual punishment ask that  
            the courts appoint a panel of federal judges to manage  
            California's prison population.  United States District Judge  
            Lawrence Karlton, the first judge to hear the motion, gave the  
            State until June 2007 to show progress in solving the  
            overpopulation crisis.  Judge Karlton clearly would prefer not  
            to manage California's prison population.  At a December 2006  
            hearing, Judge Karlton told lawyers representing the  
            Schwarzenegger administration that he is not inclined 'to  
            spend forever running the state prison system.'  However, he  
            also warned the attorneys, 'You tell your client June 4 may be  
            the end of the line.  It may really be the end of the line.'

          "Inmates, who are willing to improve their education, learn a  
            job skill or kick a drug habit find that programs are few and  
            far between, a result of budget choices and overcrowding.  
            Consequently, offenders are released into California  
            communities with the criminal tendencies and addictions that  
            first led to their incarceration.  They are ill-prepared to do  
            more than commit new crimes and create new victims."  [Little  








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            Hoover Commission Report, Solving California's Corrections  
            Crisis:  Time is Running Out (2007), pg. 1, 2.]

          On February 9, 2009, a United States District Court three-judge  
            panel issued a tentative ruling mandating the State of  
            California to resolve chronic prison overcrowding.  In the  
            tentative ruling, the judges state "[t]he evidence is  
            compelling that there is no relief other than a prisoner  
            release order that will remedy the unconstitutional prison  
            conditions."  With prisons housing twice the population they  
            were built to accommodate, the prospect of early release of  
            inmates appears imminent unless the Legislature relieves the  
                                                                     current prison population. 
             
             The United State Supreme Court upheld the decision of the  
            three-judge panel, declaring that "without a reduction in  
            overcrowding, there will be no efficacious remedy for the  
            unconstitutional care of the sick and mentally ill" inmates in  
            California's prisons.  [Brown v. Plata (2011) 131 S.Ct. 1910,  
            1939; 179 L.Ed.2d 969, 999.]

            According to a recent report by the Legislative Analyst's  
            Office, "Based on CDCR's current population projections, it  
            appears that it will eventually reach the court-imposed  
            population limit, though not by the June 2013 deadline."  [See  
            Refocusing CDCR After the 2011 Realignment, Feb. 23, 2012,  
            pp.3  
            . 
            ]  "In particular, the projections show the state missing the  
            final population limit of no more than 110,000 inmates housed  
            in state prisons by June 2013.  Specifically, the projections  
            show the state exceeding this limit by about 6,000 inmates.   
            However, the projections indicate that the state will meet the  
            court-imposed limit by the end of 2014."  (Id. at p. 9.)

            "While the state has undergone various changes to reduce  
            overcrowding prior to the passage of the realignment  
            legislation-including transferring inmates to out-of-state  
            contract facilities, construction of new facilities, and  
            various statutory changes to reduce the prison population-the  
            realignment of adult offenders is the most significant change  
            undertaken to reduce overcrowding."  (Id. at p. 8.)  Because  
            the provisions of this bill require a defendant convicted for  
            peeping to serve his or her sentence in state prison, it  
            appears to aggravate the on-going problem of prison  








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            overcrowding.
             
             The Three Judge Panel, in issuing its most recent denial of  
            the State's request to modify and/or terminate the existing  
            population cap re-stated, "crowding creates numerous barriers  
            to the provisions of medical and mental health care that  
            result in the constitutional violations." (Coleman/Plata v.  
            Brown, April 11, 2013, Op. & Order Denying Defendants Motion  
            to Vacate or Modify Population Reduction Order, (No.  
            C01-1351:2590:4).]'  

          4)Three Judge Panel's Order to Immediately Begin Releasing  
            Inmates  :  On Thursday June 20, 2013, the date this analysis  
            was written, the panel of three federal judges referenced  
            above ordered California's prisons to immediately begin  
            releasing inmates from state prisons.  The judges gave  
            Governor Brown the option of deciding how to carry out the  
            order: by revising the state's already proposed good-time  
            credit program, substituting other prisoners for early  
            release, or adopting any other step that would result in an  
            equivalent reduction in the number of people held in state  
            prisons.  The judges took the hereto unprecedented step of  
            waiving all state and local laws and regulations which would  
            interfere with the order so that the administration could  
            "commence forthwith" steps to release inmates early.  This  
            bill, by increasing prison sentences, would aggravate a  
            problem which has reached a critical impasse.  



           5)Statutory Definition of Child Pornography  :  Penal Code Section  
            311.11 criminalizes depictions of minors engaged in actual or  
            simulated "sexual conduct," which is more commonly described  
            as "child pornography."  Until 1994, child pornography was  
            defined to mean depictions of children under the age of 14  
            engaged in a sexual conduct.  In 1994, child pornography was  
            defined as depicting any person under the age of 18 years.

            However, when the age standard for child pornography was set to  
            include images of any minor, the definition of "sexual conduct"  
            did not change.  That definition is broad enough to include not  
            only graphic depictions of sexual intercourse, oral copulation  
            and sodomy, but also what could be characterized sexually  
            oriented posing.  Thus, the range of prohibited depictions makes  
            it difficult to assess exactly what a "child pornography"  








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            conviction means in any particular instance - at least according  
            to the letter of the law.  Child pornography can range from the  
            most graphic and hideous depiction of the rape of a prepubescent  
            child to topless posing of a 17-year old.  Media reports have  
            documented prosecutions of minors for so-called "sexting" - the  
            sending sexual photos of oneself to friends and others.  

            "Sexual conduct" for purposes of these statutes means any of the  
            following, whether actual or simulated:  sexual intercourse,  
            oral copulation, anal intercourse, anal oral copulation,  
            masturbation, bestiality, sexual sadism, sexual masochism,  
            penetration of the vagina or rectum by any object in a lewd or  
            lascivious manner, exhibition of the genitals or pubic or rectal  
            area for the purpose of sexual stimulation of the viewer, any  
            lewd or lascivious sexual act as defined in Section 288, or  
            excretory functions performed in a lewd or lascivious manner,  
            whether or not any of the above conduct is performed alone or  
            between members of the same or opposite sex or between humans  
            and animals.  An act is simulated when it gives the appearance  
            of being sexual conduct.  [Penal Code Section 311.4(d).]  
             
           6)Difference between Obscenity or Harmful Matter and Child  
            Pornography  :  The concepts of obscenity and child pornography  
            are very different.  Essentially, obscenity is illegal because  
            of the negative effects it has on the person exposed to the  
            material.  Harmful matter is obscenity from the perspective of  
            a minor.  Obscenity is not limited to visual depictions

            Child pornography is illegal not because of the effect it  
            would have on the viewer of the material, but because children  
            are exploited and abused in the making of child pornography.   
            That is why drawings and computer generated images of "minors"  
            engaged in sexual conduct is not child pornography.  Images of  
            fictitious children engaged in sexual conduct could, of  
            course, be found to be obscene if the legal standards were  
            met.  

           7)Higher Penalties for Possession of Child Pornography based on  
            the Number of Images and the Egregious Nature of the Images  :   
            Penal Code Section 311.11 prohibits possession of "any" matter  
            depicting minors engaged in sexual conduct, commonly described  
            as child pornography.  Prosecutors have sought multiple  
            convictions and penalties in cases where the defendant  
            possessed a large number of images child pornography.   
            However, the appellate courts have found that the word "any"  








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            in the child pornography law is ambiguous, as any mean one  
            image, or multiple images, including sexual images of more  
            than minor, possessed at one time.  An ambiguity in a criminal  
            statute must be interpreted in favor of the defendant.  Thus,  
            a defendant who possesses multiple items of child pornography  
            on one occasion is guilty of only one crime.  (People v.  
            Manfredi (2008) 169 Cal. App. 4th 622, 631.)  To address the  
            issue discussed in Manfredi, this bill authorizes a higher  
            penalty for possession of more than 600 prohibited images, at  
            least 10 of which depicted prepubescent minors or minor under  
            the age of 12 years.  The bill also authorizes a higher  
            penalty where the material depicted minors engaged in sexual  
            sadism or masochism.

           8)Statutes Concerning the Luring of Children for Sexual Crimes  
            and other Specified Offenses:   Penal Code Sections 288.2,  
            288.3 and 288.4 are related statutes that describe crimes  
            committed where an adult lures or induces a minor to engage in  
            sexual crimes or sexual conduct, or attempts to do so.   
            Section 288.2 includes an element that the perpetrator use  
            sexual material, while the others do not include such an  
            element. 

            Section 288.2 was enacted in 1989 and, in part, referred to  
            the use of a telephone to lure a minor.  The statute was  
            amended in 1997 to include electronic communications.  Section  
            288.2 specifically involves the use of "harmful matter"  
            (material that is obscene for a child) to "seduce a minor,"  
            which appellate courts have found to means the intent to  
            induce the child to engage in physical sexual conduct with the  
            perpetrator.  (People v. Jensen (2003) 114 Cal.App.4th 224,  
            236-239.)

            Sections 288.3 and 288.4 were enacted in 2006 by Proposition  
            83 (Jessica's Law) and SB 1128 (Alquist) respectively.   
            Section 288.3 prohibits a person from contacting or  
            communicating with a minor with the intent to commit various  
            sex crimes, child pornography offenses and kidnapping, which  
            often involves a sexual motivation or intent.  The penalty for  
            a violation of Section 288.3 is the punishment for an attempt  
            to commit the intended crime.

            Section 288.4 provides that a person who is motivated by  
            sexual interest in minors and who arranges a meeting with a  
            minor is guilty of a misdemeanor.  If the perpetrator goes to  








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            the place of the meeting, the crime is a felony.  It is not  
            necessary for the prosecutor to prove that the perpetrator  
            specifically intended to engage in sexual acts with the minor.  
             

           9)Amendments in this Bill to Penal Code Section 288.2 - the use  
            of Sexual Material to Induce a Minor to Engage in Sex Acts  
            with an Adult  :  The amendments in this bill to Section 288.2  
            set a range of penalties for the use of sexual material to  
            induce or persuade a minor to engage in sexual acts with or  
            for the perpetrator.  The highest penalties are intended to  
            apply to the most egregious crime - the use of harmful  
            (obscene) matter that is also child pornography, with the  
            intention of engaging in substantial sexual acts with the  
            minor, such as vaginal or anal intercourse or the touching of  
            the intimate body parts of the other person.
             
             As noted elsewhere in this analysis, harmful matter is obscene  
            material from the perspective of a minor.  Where this harmful  
            matter is composed of depictions of actual minors engaged in  
            sexual conduct, a minor was sexually exploited and abused in  
            the production of the material, and the material is by  
            definition harmful to a minor.  Such material would appear to  
            be the worst form of child pornography.  The use of such  
            material to induce a minor to engage in substantial sex acts  
            with an adult, likely by convincing the minor that the conduct  
            depicted is acceptable or normal, arguably establishes serious  
            culpability.

            Where the material used is harmful matter that does not  
            involve depictions of children engaged in sexual conduct, or  
            where the material is composed only of relatively less  
            egregious depictions of sexual conduct by minors, the  
            defendant's culpability is arguably less profound.  However,  
            this crime still involves the defendant's intention to engage  
            in substantial sexual acts with a minor.

            The least egregious form of the crime would appear to be cases  
            where the defendant used either harmful matter involving adult  
            sexual activity, or relatively less egregious depictions of  
            minors engaged in sexual activity, and the defendant did not  
            intend to engage in sexual acts that involve sexual physical  
            contact between the defendant and the minor.  For example, the  
            defendant may have intended that the minor pose for nude  
            photos.  This offense carries the lowest penalty, although it  








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            can still be charged as a felony.   
             
           10)Argument in Support  :  According to the  Ventura County  
            District Attorney  , "Possession of child pornography  
            re-victimizes children what have suffered unspeakable acts.   
            These victims suffer a lifetime of fear and shame so that  
            child predators can achieve sexual gratification from their  
            exploitation.  Not only does the child suffer the degradation  
            of the original sexual assault but they suffer a lifetime of  
            fear and shame due to the repeated exposure as the images are  
            broadcast over the internet.  

            "Child pornography knows no demographic, geographic, or racial  
            boundaries.  The child victims, especially those that are too  
            young or too scared to speak up or who are too economically  
            dependent on the offender to remove themselves from the  
            situation are truly society's most vulnerable.  SB 145 is  
            narrowly tailored to only increase penalties for those who  
            possess large amounts of images of children that include  
            images of children under the age of 12 engaged in sexual  
            conduct or of children in sadistic or sadomasochistic sexual  
            situations.  Amending Penal Code sections 311.2 and 288.2 will  
            provide judges added tools to deal with the worst offenders,  
            while allowing them the same discretion as exists in the  
            current law."  

           11)Argument in Opposition:   According to the  California  
            Attorneys for Criminal Justice  , "This bill unnecessarily  
            increases penalties.  Current law already imposes significant  
            sentences on those convicted offenses listed in SB 145.  There  
            is no indication that these penalties are insufficient.  
             
             "Furthermore, the SB 145 penalties increase result in the  
            awkward situation of subjecting a person who views improper  
            images in the privacy of his/her own home to a longer sentence  
            than someone who personally commits sex crimes such as  
            molestation.  

            "The crimes listed in SB 145 involve no direct contact with a  
            victim.  The viewer of this material did not participate in  
            the banned sex acts.  Potentially, the prohibited material  
            could be years or decades old and yet SB 145 would impose a  
            punishment more benefitting a perpetrator of rape than of an  
            act committed in a home with no direct contact with a minor.  









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            "In calling for grossly disproportionate sentences for  
            first-time offenders who use computers and possess images, SB  
            145 leaves no room to punish offenders who are far more  
            culpable or provide for offenses that are more directly  
            harmful to the victims themselves.  SB 145 is not the product  
            of years of careful study by any Sentencing Commission or  
            based on empirical sentencing data.  This bill will likely be  
            applies in disproportionate ways that will waste finite  
            resources before, during, and after the involvement of the  
            judicial system."   
             
           12)Prior Legislation  :  SB 1128 (Alquist) Chapter 337, Statutes  
            of 2006, enacted the Sex Offender Punishment, Control, and  
            Containment Act of 2006 and makes specified legislative  
            findings and declarations concerning sex offenders.
           

          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Alameda County District Attorney
          California District Attorneys Association 
          Crime Victims United of California 
          San Bernardino County Sheriff 
          Ventura County District Attorney 

          One private individual.

           Opposition 
           
          American Civil Liberties Union
          California Attorneys for Criminal Justice 
          California Public Defenders Association 
           
          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744