BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 145
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          Date of Hearing:   August 30, 2013

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                  Mike Gatto, Chair

                   SB 145 (Pavley) - As Amended:  August 21, 2013 

          Policy Committee:                             Public  
          SafetyVote:6-0

          Urgency:     No                   State Mandated Local Program:  
          Yes    Reimbursable:              No

           SUMMARY  

          This bill increases upper level prison sentences for specified  
          crimes related to child pornography by creating new categories  
          of offenses.  Specifically, this bill:  

          1)Provides that when a defendant is convicted of possession of  
            child pornography, punishable by up to one year in county  
            jail, or 16 months, two, or three years in state prison, and  
            one of the following circumstances is established, the offense  
            is punishable by 16 months, two, or five years in state  
            prison:

             a)   The material contains more than 600 images of child  
               pornography and 10 or more images involving a minor under  
               12. 
             b)   The material portrays sexual sadism or masochism  
               involving minors.

          2)Redefines the crime of using harmful matter to seduce a child,  
            increasing the penalties from up to one year in county jail,  
            or 16 months, two or three years in state prison, to up to one  
            year in county jail or two, three, or five years in state  
            prison under specified  circumstances.  

           FISCAL EFFECT  

          Unknown annual GF costs for longer prison terms, potentially in  
          the range of $400,000. It is difficult to estimate a cost range  
          because (a) persons committed to state prison under the sections  
          amended by this bill could be charged under alternative  
          sections; (b) corrections population-related data does not track  








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          the number of images or specific content, such as sadomasochism.

          Over the past two years state corrections data indicates about  
          40 persons per year were committed to state prisons under the  
          sections amended by this bill. For purposes of an  
          order-of-magnitude extrapolation, assuming a current-law base of  
          one year served (with credits), if this bill added an additional  
          year for 15% of the most egregious commitments (six  
          inmate-years), which is consistent with the average upper  
          sentence deviation, annual GF costs would be in the range of  
          $360,000, at full per capita costs of $60,000. 

          In June 20, 2013, a U.S District Court three-judge panel ordered  
          California to reduce its prison population by about 9,000  
          inmates. The judges took the extreme step of waiving all state  
          and local laws and regulations that might interfere with the  
          order to allow the administration to begin to release inmates.  
          This bill would increase the prison population. 

           
          COMMENTS  

           1)Rationale  . The author contends upper prison penalties for  
            child pornography are insufficient in California. She also  
            points out that unlike the penalty for child pornography  
            recidivists, these newly defined offenses are maintained as  
            alternate felony/misdemeanors, meaning a prosecutor can charge  
            the defendant with a misdemeanor or a felony, and a judge can  
            deem the crime a misdemeanor.  

            According to the author, "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  








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            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?.

            "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)Support  includes the CA District Attorneys Association and  
            Crime Victims United. According to the Ventura County District  
            Attorney, "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."  

           3)Opposition  includes the ACLU and the CA Public Defenders  
            Association. According to the CA 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."   

             Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081 








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