Amended in Senate April 2, 2013

Senate Bill No. 663

Introduced by Senator Lara

February 22, 2013

An act begin insert to add Section 1385 to the Evidence Code, and to amend Sections 261, 286, 288, 288a, 289, 1048.1, and 1050 of, and to add Section 13519.06 to, the Penal Code, end insert relating to crime.

LEGISLATIVE COUNSEL’S DIGEST

SB 663, as amended, Lara. Sexual assault: victims with intellectual and developmental disabilities.

begin delete

Existing

end delete

begin insert (1) end insert begin insert   end insert begin insert Existing end insert law proscribes various types of sexual assault, including the crime of begin delete rape, which end delete begin insert rape perpetrated against a person other than the spouse of the perpetrator. Rape perpetrated against a person other than the spouse of the perpetrator end insert is punishable by imprisonment in the state prison for 3, 6, or 8 years. begin insert Existing law defines rape of a person other than the spouse of the perpetrator to include circumstances in which the person is incapable of giving consent because of a developmental disability. end insert

Existing law also specifically proscribes crimes committed against elder and dependent adults. Existing law defines, for purposes of these provisions, a “dependent adult” to mean any person who is between 18 and 64 years of age, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities.

begin insert

The bill would revise the definition of certain sex offenses, including rape, sodomy, and oral copulation, to apply if the victim is developmentally disabled, as defined, and either (A) the person lacks the legal mental capacity, as defined, to give consent when compared to a reasonable person who does not have a developmental disability and this fact is known or reasonably should be known to the person committing the act, or (B) the defendant is a caretaker, as defined, or a care provider, as defined. By revising the definitions of existing crimes, the bill would impose a state-mandated local program.

end insert begin insert

(2) Existing law governs the admissibility of evidence in civil and criminal proceedings. Existing law, the hearsay rule, generally excludes from evidence a statement that was made other than by a witness while testifying at a hearing if that statement is offered to prove the truth of the matter stated.

end insert begin insert

This bill would create an exception to the hearsay rule for certain out-of-court statements made by a person with a developmental disability (A) if the declarant is a victim of a crime, (B) if the statements describe a specified sex offense performed with, by, on, or in the presence of the declarant, (C) if the statements describe any act of child abuse to which the declarant was subjected or which the declarant witnessed, or (D) if the statements describe a specified sex offense or an act of domestic violence, and specified other criteria are met.

end insert begin insert

(3) Existing law also governs criminal procedure. Among other provisions, existing law requires that, in scheduling a trial date at an arraignment in superior court involving any of specified offenses, including sexual assault, reasonable efforts be made to avoid setting that trial, when that case is assigned to a particular prosecuting attorney, on the same day that another case is set for trial involving the same prosecuting attorney. Existing law also requires that continuances be granted only upon a showing of good cause and defines good cause to include specified cases, including cases of sexual abuse, sexual assault, and domestic violence.

end insert begin insert

This bill would make those provisions applicable to a case involving a crime against a person with a developmental disability.

end insert begin insert

(4) Existing law also directs the Commission on Peace Officer Standards and Training to establish minimum standards relating to the training of law enforcement officers and establishes standards that are specifically applicable in specific types of cases, including domestic violence and the handling of persons with developmental disabilities or mental illness.

end insert begin insert

The bill would require the Commission on Peace Officer Standards and Training to develop, and periodically update as necessary, a model general order or other formal policy for crime victims with developmental disabilities, as specified. The bill would require each law enforcement agency to adopt and implement the model policy, as specified, within one year of the date when the commission adopts the model policy. By imposing new duties and a higher level of service on law enforcement agencies, the bill would impose a state-mandated local program.

end insert begin insert

The bill would also express the intent of the Legislature to address the problem of sexual violence against people with intellectual and various developmental disabilities and set forth related findings and declarations.

end insert begin insert

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.

end insert begin insert

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

end insert begin insert

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

end insert begin delete

This bill would express the intent of the Legislature to enact legislation that would help to ensure that there is justice for individuals with intellectual and developmental disabilities who are victims of sexual assault and would set forth related findings and declarations.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert begin insert

(a) The Legislature finds and declares all of the
following:

end insert begin insert

(1) Throughout society sexual violence against people with
intellectual and various developmental disabilities, including
persons residing in institutions, is a grave problem. The violent
criminals who commit these acts typically go unpunished and
remain free to continue committing these crimes, while the victims
rarely get the support and assistance they need and deserve.

end insert begin insert

(2) Researchers have noted that over the past decade, crimes
against people with developmental disabilities have reached
epidemic levels. This problem has reached epidemic levels, yet
has been ignored, and the criminal justice system has failed to
address this public health problem adequately.

end insert begin insert

(3) The epidemic is increasing, and will likely continue to
increase, with the aging of the developmental disability population,
and the explosive rate of increase of individuals with autism and
fetal alcohol syndrome disorder.

end insert begin insert

(4) In enacting Section 13519.06 of the Penal Code, it is the
intent of the Legislature to develop and implement training
programs similar to the training currently provided to law
enforcement employees for handling cases involving domestic
violence and other serious crimes, for law enforcement employees
handling cases involving sexual violence against persons with
developmental disabilities.

end insert begin insert

(b) By the enactment of this act, it is the intent of the Legislature
to take serious action to begin to remedy these outrages.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1385 is added to the end insert begin insert Evidence Code end insert begin insert , to read: end insert

begin insert

begin insert 1385. end insert   

(a) Evidence of a statement by a person with a
developmental disability is not made inadmissible by the hearsay
rule if offered in a criminal or juvenile proceeding in which the
person is alleged to have been a victim of a crime and the
conditions of subdivision (e) are satisfied.

(b) Evidence of a statement by a person with a developmental
disability that describes all or part of an offense described in
Section 261, 286, 288, 288a, or 289 of the Penal Code performed
with, by, on, or in the presence of the declarant, is not made
inadmissible by the hearsay rule if offered in a criminal, juvenile,
or civil proceeding and the conditions of subdivision (e) are
satisfied.

(c) Evidence of a statement by a person with a developmental
disability that describes any act of child abuse, including, but not
limited to, the crimes described in Section 273a, 273ab, or 273d
of the Penal Code, to which the declarant was subjected or which
the declarant witnessed, is not made inadmissible by the hearsay
rule if offered in a criminal, juvenile, or civil proceeding in which
a child is alleged to be a victim of child abuse or the subject of a
proceeding alleging that a child is within the jurisdiction of the
juvenile court on the basis of abuse or neglect, pursuant to Section
300 of the Welfare and Institutions Code, and the conditions of
subdivision (e) are satisfied.

(d) Evidence of a statement by a person with a developmental
disability, that describes all or part of any offense described in
Section 261, 286, 288, 288a, or 289 of the Penal Code, or that
describes an act of domestic violence, is not made inadmissible
by the hearsay rule if offered in a criminal, juvenile, or civil
proceeding and the conditions of subdivision (e) are satisfied.

(e) The exceptions to the hearsay rule described in subdivisions
(a) to (d), inclusive, of this section shall apply only if the court
finds in a hearing conducted outside the presence of the jury that
the time, content, and circumstances of the statement provide
sufficient safeguards of reliability and either of the following apply:

(1) The statement is a nontestimonial statement.

(2) One of the following applies:

(A) The declarant testifies at the proceeding.

(B) If the declarant is unavailable to testify, the defendant has
had an opportunity to cross-examine the declarant in a previous
proceeding and there is corroborative evidence of the act that is
the subject of the statement.

(f) If a statement described in this section is admitted into
evidence, the court shall instruct the jury in the final written
instructions that during the proceeding the jury heard evidence
regarding a person’s statement, and it is for the jury to determine
the weight and credit to be given to that statement, and, in making
that determination, the jury shall consider the nature of the
statement, the circumstances under which the statement was made,
and any other relevant factor.

(g) The proponent of the statement shall give the adverse party
reasonable notice of his or her intention to offer the statement and
the particulars of the statement.

(h) For purposes of this section, a “developmental disability”
means an intellectual disability that originates before an individual
attains 18 years of age, continues, or can be expected to continue,
indefinitely, and constitutes a substantial intellectual disability for
that individual. This term shall include mental retardation, cerebral
palsy, epilepsy, and autism if the condition severely impairs the
cognitive abilities of the individual. This term shall also include
disabling conditions found to be closely related to mental
retardation or to require treatment similar to that required for
individuals with mental retardation, but shall not include other
disabling conditions that are solely physical in nature.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 261 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

261.  

(a) Rape is an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator, under any of the
following circumstances:

(1)  begin delete Where a end delete begin insert If the end insert person is begin delete incapable, because of a mental
disorder or developmental or physical disability, of end delete begin insert incapable of end insert
giving legal begin delete consent, and this is known or reasonably should be
known to the person committing the act end delete begin insert consent and he or she is
a person described in subparagraph (A) or (B) end insert . Notwithstanding
the existence of a conservatorship pursuant to the provisions of
the Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, begin delete that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving consent. end delete begin insert the facts specified
in subparagraph (A) or (B). For purposes of this paragraph, a
person is incapable of giving legal consent if he or she: end insert

begin insert

(A) Has a mental disorder or physical disability, the mental
disorder or physical disability rendered the alleged victim
incapable of giving legal consent, and these facts are known or
reasonably should be known to the person committing the act.

end insert begin insert

(B) Has a developmental disability and either of the following
applies:

end insert begin insert

(i) The person lacks the legal capacity to give consent when
compared to a reasonable person who does not have a
developmental disability and this fact is known or reasonably
should be known to the person committing the act. For purposes
of this clause, a court shall determine whether a person lacks the
legal capacity to give consent pursuant to Part 17 (commencing
with Section 810) of Division 2 of the Probate Code.

end insert begin insert

(ii) The defendant is either of the following:

end insert begin insert

(I) A caretaker, as defined in Section 288.

end insert begin insert

(II) A care provider, meaning a person who provides assistance
with the activities of daily living, including any person that directly
or indirectly owns, administers, or operates a developmental
center, a community care facility as defined in Sections 1502 and
1504 of the Health and Safety Code, or a health facility, as defined
in Section 1250 of the Health and Safety Code, and includes all
agents, employees, and contractors of the care provider who are
responsible for providing care to clients.

end insert

(2)  begin delete Where end delete begin insert If end insert it is accomplished against a person’s will by means
of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person or another.

(3)  begin delete Where end delete begin insert If end insert a person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled substance,
and this condition was known, or reasonably should have been
known by the accused.

(4)  begin delete Where end delete begin insert If end insert a person is at the time unconscious of the nature
of the act, and this is known to the accused. As used in this
paragraph, “unconscious of the nature of the act” means incapable
of resisting because the victim meets one of the following
conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the
act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

(D) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.

(5)  begin delete Where end delete begin insert If end insert a person submits under the belief that the person
committing the act is the victim’s spouse, and this belief is induced
by any artifice, pretense, or concealment practiced by the accused,
with intent to induce the belief.

(6)  begin delete Where end delete begin insert If end insert the act is accomplished against the victim’s will
by threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the
perpetrator will execute the threat. As used in this paragraph,
“threatening to retaliate” means a threat to kidnap or falsely
imprison, or to inflict extreme pain, serious bodily injury, or death.

(7)  begin delete Where end delete begin insert If end insert the act is accomplished against the victim’s will
by threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, “public official” means a person employed by
a governmental agency who has the authority, as part of that
position, to incarcerate, arrest, or deport another. The perpetrator
does not actually have to be a public official.

(b) As used in this section, begin delete “duress” end delete begin insert the following definitions
apply: end insert

begin insert (1) end insert begin insert   end insert begin insert “Developmental disability” has the same meaning as found
in subdivision (h) of Section 1385 of the Evidence Code. end insert

begin insert (2) end insert begin insert   end insert begin insert “Duress” end insert means a direct or implied threat of force, violence,
danger, or retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to perform an act which otherwise would
not have been performed, or acquiesce in an act to which one
otherwise would not have submitted. The total circumstances,
including the age of the victim, and his or her relationship to the
defendant, are factors to consider in appraising the existence of
duress.

begin delete

(c)

end delete

begin insert (3) end insert   begin delete As used in this section, “menace” end delete begin insert “Menace” end insert means any
threat, declaration, or act which shows an intention to inflict an
injury upon another.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 286 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

286.  

(a) Sodomy is sexual conduct consisting of contact
between the penis of one person and the anus of another person.
Any sexual penetration, however slight, is sufficient to complete
the crime of sodomy.

(b) (1) Except as provided in Section 288, any person who
participates in an act of sodomy with another person who is under
18 years of age shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.

(2) Except as provided in Section 288, any person over begin delete the age
of end delete 21 years begin insert of age end insert who participates in an act of sodomy with
another person who is under 16 years of age shall be guilty of a
felony.

(c) (1) Any person who participates in an act of sodomy with
another person who is under 14 years of age and more than 10
years younger than he or she shall be punished by imprisonment
in the state prison for three, six, or eight years.

(2) (A) Any person who commits an act of sodomy when the
act is accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by
imprisonment in the state prison for three, six, or eight years.

(B) Any person who commits an act of sodomy with another
person who is under 14 years of age when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person shall be punished by imprisonment in the
state prison for 9, 11, or 13 years.

(C) Any person who commits an act of sodomy with another
person who is a minor 14 years of age or older when the act is
accomplished against the victim’s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury
on the victim or another person shall be punished by imprisonment
in the state prison for 7, 9, or 11 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(3) Any person who commits an act of sodomy where the act
is accomplished against the victim’s will by threatening to retaliate
in the future against the victim or any other person, and there is a
reasonable possibility that the perpetrator will execute the threat,
shall be punished by imprisonment in the state prison for three,
six, or eight years.

(d) (1) Any person who, while voluntarily acting in concert
with another person, either personally or aiding and abetting that
other person, commits an act of sodomy when the act is
accomplished against the victim’s will by means of force or fear
of immediate and unlawful bodily injury on the victim or another
person or where the act is accomplished against the victim’s will
by threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the
perpetrator will execute the threat, shall be punished by
imprisonment in the state prison for five, seven, or nine years.

(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is under 14
years of age, when the act is accomplished against the victim’s
will by means of force or fear of immediate and unlawful bodily
injury on the victim or another person, shall be punished by
imprisonment in the state prison for 10, 12, or 14 years.

(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is a minor
14 years of age or older, when the act is accomplished against the
victim’s will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished
by imprisonment in the state prison for 7, 9, or 11 years.

(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(e) Any person who participates in an act of sodomy with any
person of any age while confined in any state prison, as defined
in Section 4504, or in any local detention facility, as defined in
Section 6031.4, shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.

(f) Any person who commits an act of sodomy, and the victim
is at the time unconscious of the nature of the act and this is known
to the person committing the act, shall be punished by
imprisonment in the state prison for three, six, or eight years. As
used in this subdivision, “unconscious of the nature of the act”
means incapable of resisting because the victim meets one of the
following conditions:

(1) Was unconscious or asleep.

(2) Was not aware, knowing, perceiving, or cognizant that the
act occurred.

(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.

(g) Except as provided in subdivision (h), begin insert if end insert a person begin delete who end delete
commits an act of sodomy, and the victim is at the time begin delete incapable,
because of a mental disorder or developmental or physical
disability, end delete begin insert incapable end insert of giving legal begin delete consent, and this is known or
reasonably should be known to the person committing the act, end delete
begin insert consent and is described in paragraph (1) or (2) end insert begin insert , end insert begin insert the person end insert shall
be punished by imprisonment in the state prison for three, six, or
eight years. Notwithstanding the existence of a conservatorship
pursuant to the Lanterman-Petris-Short Act (Part 1 (commencing
with Section 5000) of Division 5 of the Welfare and Institutions
Code), the prosecuting attorney shall prove, as an element of the
crime, begin delete that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving consent. end delete
begin insert the facts specified in paragraph (1) or (2). For purposes of this
paragraph, a victim is incapable of giving legal consent if he or
she: end insert

begin insert

(1) Is incapable of giving legal consent because of a mental
disorder or physical disability and this fact is known or reasonably
should be known to the person committing the act.

end insert begin insert

(2) Has a developmental disability and either of the following
applies:

end insert begin insert

(A) The person lacks the legal mental capacity to give consent
when compared to a reasonable person who does not have a
developmental disability and this fact is known or reasonably
should be known to the person committing the act. For purposes
of this subparagraph, a court shall determine whether a person
lacks the legal capacity to give consent pursuant to Part 17
(commencing with Section 810) of Division 2 of the Probate Code.

end insert begin insert

(B) The defendant is either of the following:

end insert begin insert

(i) A caretaker.

end insert begin insert

(ii) A care provider.

end insert

(h) Any person who commits an act of sodomy, and the victim
is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person
committing the act, and both the defendant and the victim are at
the time confined in a state hospital for the care and treatment of
the mentally disordered or in any other public or private facility
for the care and treatment of the mentally disordered approved by
a county mental health director, shall be punished by imprisonment
in the state prison, or in a county jail for not more than one year.
Notwithstanding the existence of a conservatorship pursuant to
the Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving legal consent.

(i) Any person who commits an act of sodomy, where the victim
is prevented from resisting by an intoxicating or anesthetic
substance, or any controlled substance, and this condition was
known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for three,
six, or eight years.

(j) Any person who commits an act of sodomy, where the victim
submits under the belief that the person committing the act is the
victim’s spouse, and this belief is induced by any artifice, pretense,
or concealment practiced by the accused, with intent to induce the
belief, shall be punished by imprisonment in the state prison for
three, six, or eight years.

(k) Any person who commits an act of sodomy, where the act
is accomplished against the victim’s will by threatening to use the
authority of a public official to incarcerate, arrest, or deport the
victim or another, and the victim has a reasonable belief that the
perpetrator is a public official, shall be punished by imprisonment
in the state prison for three, six, or eight years.

begin delete

As used in this subdivision, “public official” means a person
employed by a governmental agency who has the authority, as part
of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.

(l) As used in subdivisions (c) and (d), “threatening to retaliate”
means a threat to kidnap or falsely imprison, or inflict extreme
pain, serious bodily injury, or death.

(m)

end delete

begin insert ( end insert begin insert l end insert begin insert ) end insert  In addition to any punishment imposed under this section,
the judge may assess a fine not to exceed seventy dollars ($70)
against any person who violates this section, with the proceeds of
this fine to be used in accordance with Section 1463.23. The court,
however, shall take into consideration the defendant’s ability to
pay, and no defendant shall be denied probation because of his or
her inability to pay the fine permitted under this subdivision.

begin insert

(m) As used in this section, the following definitions apply:

end insert begin insert

(1) A “care provider” means a person who provides assistance
with the activities of daily living, including any person who directly
or indirectly owns, administers, or operates a developmental
center, a community care facility, as defined in Sections 1502 and
1504 of the Health and Safety Code, or a health facility, as defined
in Section 1250 of the Health and Safety Code, and all agents,
employees, and contractors of the care provider who are
responsible for providing care to clients.

end insert begin insert

(2) A “caretaker” has the same meaning as set forth in Section
288.

end insert begin insert

(3) “Developmental disability” has the same meaning as found
in subdivision (h) of Section 1385 of the Evidence Code.

end insert begin insert

(4) As used in subdivision (k), “public official” means a person
employed by a governmental agency who has the authority, as
part of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.

end insert begin insert

(5) As used in subdivisions (c) and (d), “threatening to retaliate”
means a threat to kidnap or falsely imprison, or to inflict extreme
pain, serious bodily injury, or death.

end insert

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 288 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

288.  

(a) Except as provided in subdivision (i), any person who
willfully and lewdly commits any lewd or lascivious act, including
any of the acts constituting other crimes provided for in Part 1,
upon or with the body, or any part or member thereof, of a child
who is under begin delete the age of end delete 14 years begin insert of age end insert , with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of
that person or the child, is guilty of a felony and shall be punished
by imprisonment in the state prison for three, six, or eight years.

(b) (1) Any person who commits an act described in subdivision
(a) by use of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person, is
guilty of a felony and shall be punished by imprisonment in the
state prison for 5, 8, or 10 years.

(2) Any person who is a caretaker and commits an act described
in subdivision (a) upon a dependent person begin insert , including a person
with a developmental disability, as defined in subdivision (d), end insert by
use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, with the
intent described in subdivision (a), is guilty of a felony and shall
be punished by imprisonment in the state prison for 5, 8, or 10
years.

(c) (1) Any person who commits an act described in subdivision
(a) with the intent described in that subdivision, and the victim is
a child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years,
or by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date
of the person to the birth date of the child.

(2) Any person who is a caretaker and commits an act described
in subdivision (a) upon a dependent person, begin insert including a person
with a developmental disability, as defined in subdivision (d), end insert with
the intent described in subdivision (a), is guilty of a public offense
and shall be punished by imprisonment in the state prison for one,
two, or three years, or by imprisonment in a county jail for not
more than one year.

(d)  begin insert (1) end insert begin insert   end insert In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim begin insert , person with a developmental
disability, end insert or begin insert other end insert dependent person and shall do whatever is
necessary, within existing budgetary resources, and constitutionally
permissible to prevent psychological harm to the child victim or
to prevent psychological harm to the begin insert person with a developmental
disability or other end insert dependent person victim resulting from
participation in the court process.

begin insert

(2) For purposes of this subdivision, “developmental disability”
has the same meaning as found in subdivision (h) of Section 1385
of the Evidence Code.

end insert

(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the
defendant derived any economic gain as a result of the crime, and
the extent to which the victim suffered economic losses as a result
of the crime. Every fine imposed and collected under this section
shall be deposited in the Victim-Witness Assistance Fund to be
available for appropriation to fund child sexual exploitation and
child sexual abuse victim counseling centers and prevention
programs pursuant to Section 13837.

If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.

(f) For purposes of paragraph (2) of subdivision (b) and
paragraph (2) of subdivision (c), the following definitions apply:

(1) “Caretaker” means an owner, operator, administrator,
employee, independent contractor, agent, or volunteer of any of
the following public or private facilities when the facilities provide
care for elder or dependent persons:

(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.

(B) Clinics.

(C) Home health agencies.

(D) Adult day health care centers.

(E) Secondary schools that serve dependent persons and
postsecondary educational institutions that serve dependent persons
or elders.

(F) Sheltered workshops.

(G) Camps.

(H) Community care facilities, as defined by Section 1402 of
the Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety
Code.

(I) Respite care facilities.

(J) Foster homes.

(K) Regional centers for persons with developmental disabilities.

(L) A home health agency licensed in accordance with Chapter
8 (commencing with Section 1725) of Division 2 of the Health
and Safety Code.

(M) An agency that supplies in-home supportive services.

(N) Board and care facilities.

(O) Any other protective or public assistance agency that
provides health services or social services to elder or dependent
persons, including, but not limited to, in-home supportive services,
as defined in Section 14005.14 of the Welfare and Institutions
Code.

(P) Private residences.

(2) “Board and care facilities” means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:

(A) Bathing.

(B) Dressing.

(C) Grooming.

(D) Medication storage.

(E) Medical dispensation.

(F) Money management.

(3) “Dependent person” means any person who has a physical
or mental impairment that substantially restricts his or her ability
to carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities
have significantly diminished because of age. “Dependent person”
includes any person who is admitted as an inpatient to a 24-hour
health facility, as defined in Sections 1250, 1250.2, and 1250.3 of
the Health and Safety Code.

(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working
at these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c).

(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
person under care.

(i) (1) Any person convicted of a violation of subdivision (a)
shall be imprisoned in the state prison for life with the possibility
of parole if the defendant personally inflicted bodily harm upon
the victim.

(2) The penalty provided in this subdivision shall only apply if
the fact that the defendant personally inflicted bodily harm upon
the victim is pled and proved.

(3) As used in this subdivision, “bodily harm” means any
substantial physical injury resulting from the use of force that is
more than the force necessary to commit the offense.

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 288a of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

288a.  

(a) Oral copulation is the act of copulating the mouth
of one person with the sexual organ or anus of another person.

(b) (1) Except as provided in Section 288, any person who
participates in an act of oral copulation with another person who
is under 18 years of age shall be punished by imprisonment in the
state prison, or in a county jail for a period of not more than one
year.

(2) Except as provided in Section 288, any person over the age
of 21 years who participates in an act of oral copulation with
another person who is under 16 years of age is guilty of a felony.

(c) (1) Any person who participates in an act of oral copulation
with another person who is under 14 years of age and more than
10 years younger than he or she shall be punished by imprisonment
in the state prison for three, six, or eight years.

(2) (A) Any person who commits an act of oral copulation when
the act is accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by
imprisonment in the state prison for three, six, or eight years.

(B) Any person who commits an act of oral copulation upon a
person who is under 14 years of age, when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in
the state prison for 8, 10, or 12 years.

(C) Any person who commits an act of oral copulation upon a
minor who is 14 years of age or older, when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in
the state prison for 6, 8, or 10 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(3) Any person who commits an act of oral copulation where
the act is accomplished against the victim’s will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison
for three, six, or eight years.

(d) (1) Any person who, while voluntarily acting in concert
with another person, either personally or by aiding and abetting
that other person, commits an act of oral copulation (1) when the
act is accomplished against the victim’s will by means of force or
fear of immediate and unlawful bodily injury on the victim or
another person, or (2) where the act is accomplished against the
victim’s will by threatening to retaliate in the future against the
victim or any other person, and there is a reasonable possibility
that the perpetrator will execute the threat, or (3) where the victim
is at the time begin delete incapable, because of a mental disorder or
developmental or physical disability, end delete begin insert incapable end insert of giving legal
consent begin delete , and this is known or reasonably should be known to the
person committing the act end delete begin insert as described in subparagraph (A) or
(B) end insert , shall be punished by imprisonment in the state prison for five,
seven, or nine years. Notwithstanding the appointment of a
conservator with respect to the victim pursuant to the provisions
of the Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and Institutions Code),
the prosecuting attorney shall prove, as an element of the crime
described under paragraph (3), begin delete that a mental disorder or
developmental or physical disability rendered the alleged victim
incapable of giving legal consent. end delete begin insert the facts specified in
subparagraph (A) or (B). For purposes of this paragraph, a victim end insert
begin insert is incapable of giving legal consent if he or she: end insert

begin insert

(A) Has a mental disorder or physical disability, the mental
disorder or physical disability rendered the alleged victim
incapable of giving legal consent, and these facts are known or
reasonably should be known to the person committing the act.

end insert begin insert

(B) Has a developmental disability and either of the following
applies:

end insert begin insert

(i) The person lacks the legal mental capacity to give consent
when compared to a reasonable person who does not have a
developmental disability and this fact is known or reasonably
should be known to the person committing the act. For purposes
of this clause, a court shall determine whether a person lacks the
legal capacity to give consent pursuant to Part 17 (commencing
with Section 810) of Division 2 of the Probate Code.

end insert begin insert

(ii) The defendant is either of the following:

end insert begin insert

(I) A caretaker, as defined in Section 288.

end insert begin insert

(II) A care provider.

end insert

(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is
under 14 years of age, when the act is accomplished against the
victim’s will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished
by imprisonment in the state prison for 10, 12, or 14 years.

(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is a
minor 14 years of age or older, when the act is accomplished
against the victim’s will by means of force or fear of immediate
and unlawful bodily injury on the victim or another person, shall
be punished by imprisonment in the state prison for 8, 10, or 12
years.

(4) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(e) Any person who participates in an act of oral copulation
while confined in any state prison, as defined in Section 4504 or
in any local detention facility as defined in Section 6031.4, shall
be punished by imprisonment in the state prison, or in a county
jail for a period of not more than one year.

(f) Any person who commits an act of oral copulation, and the
victim is at the time unconscious of the nature of the act and this
is known to the person committing the act, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years. As used in this subdivision, “unconscious of the nature of
the act” means incapable of resisting because the victim meets one
of the following conditions:

(1) Was unconscious or asleep.

(2) Was not aware, knowing, perceiving, or cognizant that the
act occurred.

(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the oral copulation served a professional purpose
when it served no professional purpose.

(g) Except as provided in subdivision (h), begin insert if end insert any person begin delete who end delete
commits an act of oral copulation, and the victim is at the time
begin delete incapable, because of a mental disorder or developmental or
physical disability, end delete begin insert incapable end insert of giving legal begin delete consent, and this is
known or reasonably should be known to the person committing
the act end delete begin insert consent as described in paragraph (1) or (2) end insert , begin insert the person
who commits the act end insert shall be punished by imprisonment in the
state prison, for three, six, or eight years. Notwithstanding the
existence of a conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, begin delete that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving consent. end delete begin insert the facts specified
in paragraph (1) or (2). For purposes of this subdivision, a victim
is incapable of giving legal consent if he or she: end insert

begin insert

(1) Is incapable of giving legal consent because of a mental
disorder or physical disability and this fact is known or reasonably
should be known to the person committing the act.

end insert begin insert

(2) Has a developmental disability and either of the following
applies:

end insert begin insert

(A) The person lacks the legal mental capacity to give consent
when compared to a reasonable person who does not have a
developmental disability and this fact is known or reasonably
should be known to the person committing the act. For purposes
of this paragraph, a court shall determine whether a person lacks
the legal capacity to give consent pursuant to Part 17 (commencing
with Section 810) of Division 2 of the Probate Code.

end insert begin insert

(B) The defendant is either of the following:

end insert begin insert

(i) A caretaker.

end insert begin insert

(ii) A care provider.

end insert

(h) Any person who commits an act of oral copulation, and the
victim is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person
committing the act, and both the defendant and the victim are at
the time confined in a state hospital for the care and treatment of
the mentally disordered or in any other public or private facility
for the care and treatment of the mentally disordered approved by
a county mental health director, shall be punished by imprisonment
in the state prison, or in a county jail for a period of not more than
one year. Notwithstanding the existence of a conservatorship
pursuant to the provisions of the Lanterman-Petris-Short Act (Part
1 (commencing with Section 5000) of Division 5 of the Welfare
and Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.

(i) Any person who commits an act of oral copulation, where
the victim is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this condition
was known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for a period
of three, six, or eight years.

(j) Any person who commits an act of oral copulation, where
the victim submits under the belief that the person committing the
act is the victim’s spouse, and this belief is induced by any artifice,
pretense, or concealment practiced by the accused, with intent to
induce the belief, shall be punished by imprisonment in the state
prison for a period of three, six, or eight years.

(k) Any person who commits an act of oral copulation, where
the act is accomplished against the victim’s will by threatening to
use the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years.

begin delete

As used in this subdivision, “public official” means a person
employed by a governmental agency who has the authority, as part
of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.

end delete begin delete

(l) As used in subdivisions (c) and (d), “threatening to retaliate”
means a threat to kidnap or falsely imprison, or to inflict extreme
pain, serious bodily injury, or death.

end delete begin delete

(m)

end delete

begin insert ( end insert begin insert l end insert begin insert ) end insert  In addition to any punishment imposed under this section,
the judge may assess a fine not to exceed seventy dollars ($70)
against any person who violates this section, with the proceeds of
this fine to be used in accordance with Section 1463.23. The court
shall, however, take into consideration the defendant’s ability to
pay, and no defendant shall be denied probation because of his or
her inability to pay the fine permitted under this subdivision.

begin insert

(m) As used in this section, the following definitions apply:

end insert begin insert

(1) A “care provider” means a person who provides assistance
with the activities of daily living, including any person who directly
or indirectly owns, administers, or operates a developmental
center, a community care facility, as defined in Sections 1502 and
1504 of the Health and Safety Code, or a health facility, as defined
in Section 1250 of the Health and Safety Code, and all agents,
employees, and contractors of the care provider who are
responsible for providing care to clients.

end insert begin insert

(2) A “caretaker” has the same meaning as set forth in Section
288.

end insert begin insert

(3) “Developmental disability” has the same meaning as found
in subdivision (h) of Section 1385 of the Evidence Code.

end insert begin insert

(4) As used in subdivision (k), “public official” means a person
employed by a governmental agency who has the authority, as
part of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.

end insert begin insert

(5) As used in subdivisions (c) and (d), “threatening to retaliate”
means a threat to kidnap or falsely imprison, or to inflict extreme
pain, serious bodily injury, or death.

end insert

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 289 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

289.  

(a) (1) (A) Any person who commits an act of sexual
penetration when the act is accomplished against the victim’s will
by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person shall
be punished by imprisonment in the state prison for three, six, or
eight years.

(B) Any person who commits an act of sexual penetration upon
a child who is under 14 years of age, when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in
the state prison for 8, 10, or 12 years.

(C) Any person who commits an act of sexual penetration upon
a minor who is 14 years of age or older, when the act is
accomplished against the victim’s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury
on the victim or another person, shall be punished by imprisonment
in the state prison for 6, 8, or 10 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(2) Any person who commits an act of sexual penetration when
the act is accomplished against the victim’s will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison
for three, six, or eight years.

(b) Except as provided in subdivision (c), begin delete any end delete begin insert if a end insert person begin delete who end delete
commits an act of sexual penetration, and the victim is at the time
begin delete incapable, because of a mental disorder or developmental or
physical disability, of end delete begin insert incapable of end insert giving legal consent, and begin delete this
is known or reasonably should be known to the person committing
the act or causing the act to be committed, end delete begin insert the victim is a person
described in paragraph (1) or (2), the person committing the act end insert
shall be punished by imprisonment in the state prison for three,
six, or eight years. Notwithstanding the appointment of a
conservator with respect to the victim pursuant to the provisions
of the Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and Institutions Code),
the prosecuting attorney shall prove, as an element of the begin delete crime,
that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving legal consent. end delete
begin insert crime the facts described in paragraph (1) or (2): end insert

begin insert

(1) The victim is incapable of giving legal consent because of
a mental disorder or physical disability and this fact is known or
reasonably should be known to the person committing the act.

end insert begin insert

(2) The victim has a developmental disability and either of the
following applies:

end insert begin insert

(A) The victim lacks the legal mental capacity to give consent
when compared to a reasonable person who does not have a
developmental disability and this fact is known or reasonably
should be known to the person committing the act. For purposes
of this paragraph, a court shall determine whether a person lacks
the legal capacity to give consent pursuant to Part 17 (commencing
with Section 810) of Division 2 of the Probate Code.

end insert begin insert

(B) The person defendant is either of the following:

end insert begin insert

(i) A caretaker as defined in Section 288.

end insert begin insert

(ii) A care provider.

end insert

(c) Any person who commits an act of sexual penetration, and
the victim is at the time incapable, because of a mental disorder
or developmental or physical disability, of giving legal consent,
and this is known or reasonably should be known to the person
committing the act or causing the act to be committed and both
the defendant and the victim are at the time confined in a state
hospital for the care and treatment of the mentally disordered or
in any other public or private facility for the care and treatment of
the mentally disordered approved by a county mental health
director, shall be punished by imprisonment in the state prison, or
in a county jail for a period of not more than one year.
Notwithstanding the existence of a conservatorship pursuant to
the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.

(d) Any person who commits an act of sexual penetration, and
the victim is at the time unconscious of the nature of the act and
this is known to the person committing the act or causing the act
to be committed, shall be punished by imprisonment in the state
prison for three, six, or eight years. As used in this subdivision,
“unconscious of the nature of the act” means incapable of resisting
because the victim meets one of the following conditions:

(1) Was unconscious or asleep.

(2) Was not aware, knowing, perceiving, or cognizant that the
act occurred.

(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.

(e) Any person who commits an act of sexual penetration when
the victim is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this condition
was known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for a period
of three, six, or eight years.

(f) Any person who commits an act of sexual penetration when
the victim submits under the belief that the person committing the
act or causing the act to be committed is the victim’s spouse, and
this belief is induced by any artifice, pretense, or concealment
practiced by the accused, with intent to induce the belief, shall be
punished by imprisonment in the state prison for a period of three,
six, or eight years.

(g) Any person who commits an act of sexual penetration when
the act is accomplished against the victim’s will by threatening to
use the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years.

As used in this subdivision, “public official” means a person
employed by a governmental agency who has the authority, as part
of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.

(h) Except as provided in Section 288, any person who
participates in an act of sexual penetration with another person
who is under 18 years of age shall be punished by imprisonment
in the state prison or in the county jail for a period of not more
than one year.

(i) Except as provided in Section 288, any person over the age
of 21 years who participates in an act of sexual penetration with
another person who is under 16 years of age shall be guilty of a
felony.

(j) Any person who participates in an act of sexual penetration
with another person who is under 14 years of age and who is more
than 10 years younger than he or she shall be punished by
imprisonment in the state prison for three, six, or eight years.

(k) As used in this section:

begin insert

(1) A “care provider” means a person who provides assistance
with the activities of daily living, including any person who directly
or indirectly owns, administers, or operates a developmental
center, a community care facility, as defined in Sections 1502 and
1504 of the Health and Safety Code, or a health facility, as defined
in Section 1250 of the Health and Safety Code, and all agents,
employees, and contractors of the care provider who are
responsible for providing care to clients.

end insert begin insert

(2) “Developmental disability” has the same meaning as found
in subdivision (h) of Section 1385 of the Evidence Code.

end insert begin delete

(1)

end delete

begin insert (3) end insert  “Sexual penetration” is the act of causing the penetration,
however slight, of the genital or anal opening of any person or
causing another person to so penetrate the defendant’s or another
person’s genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument,
or device, or by any unknown object.

begin delete

(2)

end delete

begin insert (4) end insert  “Foreign object, substance, instrument, or device” shall
include any part of the body, except a sexual organ.

begin delete

(3)

end delete

begin insert (5) end insert  “Unknown object” shall include any foreign object,
substance, instrument, or device, or any part of the body, including
a penis, when it is not known whether penetration was by a penis
or by a foreign object, substance, instrument, or device, or by any
other part of the body.

(l) As used in subdivision (a), “threatening to retaliate” means
a threat to kidnap or falsely imprison, or inflict extreme pain,
serious bodily injury or death.

(m) As used in this section, “victim” includes any person who
the defendant causes to penetrate the genital or anal opening of
the defendant or another person or whose genital or anal opening
is caused to be penetrated by the defendant or another person and
who otherwise qualifies as a victim under the requirements of this
section.

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 1048.1 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1048.1.  

begin insert (a) end insert begin insert   end insert In scheduling a trial date at an arraignment in
superior court involving begin delete murder, end delete begin insert any of the following offenses,
reasonable efforts shall be made to avoid setting that trial, when
that case is assigned to a particular prosecuting attorney, on the
same day that another case is set for trial involving the same
prosecuting attorney: end insert

begin insert (1) end insert begin insert   end insert begin insert Murder, end insert as defined in subdivision (a) of Section 187 begin delete , an
alleged end delete begin insert . end insert

begin insert (2) end insert begin insert   end insert begin insert An alleged end insert sexual assault offense, as described in
subdivisions (a) and (b) of Section 11165.1 begin delete , or an alleged end delete begin insert . end insert

begin insert (3) end insert begin insert   end insert begin insert Alleged end insert child abuse offense, as described in Section 11165.6 begin delete ,
or a end delete begin insert . end insert

begin insert (4) end insert begin insert   end insert begin insert A end insert case being handled in the Career Criminal Prosecution
Program pursuant to Sections 999b begin delete through end delete begin insert to end insert 999h, begin delete reasonable
efforts shall be made to avoid setting that trial, when that case is
assigned to a particular prosecuting attorney, on the same day that
another case is set for trial involving the same prosecuting attorney end delete
begin insert inclusive end insert .

begin insert

(5) A case involving an allegation of a crime committed against
a person with a developmental disability.

end insert begin insert

(b) For purposes of this section, a “developmental disability”
has the same meaning as found in subdivision (h) of Section 1385
of the Evidence Code.

end insert

begin insert

begin insert SEC. 9. end insert   

end insert

begin insert Section 1050 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1050.  

(a) The welfare of the people of the State of California
requires that all proceedings in criminal cases shall be set for trial
and heard and determined at the earliest possible time. To this end,
the Legislature finds that the criminal courts are becoming
increasingly congested with resulting adverse consequences to the
welfare of the people and the defendant. Excessive continuances
contribute substantially to this congestion and cause substantial
hardship to victims and other witnesses. Continuances also lead
to longer periods of presentence confinement for those defendants
in custody and the concomitant overcrowding and increased
expenses of local jails. It is therefore recognized that the people,
the defendant, and the victims and other witnesses have the right
to an expeditious disposition, and to that end it shall be the duty
of all courts and judicial officers and of all counsel, both for the
prosecution and the defense, to expedite these proceedings to the
greatest degree that is consistent with the ends of justice. In
accordance with this policy, criminal cases shall be given
precedence over, and set for trial and heard without regard to the
pendency of, any civil matters or proceedings. In further accordance
with this policy, death penalty cases in which both the prosecution
and the defense have informed the court that they are prepared to
proceed to trial shall be given precedence over, and set for trial
and heard without regard to the pendency of, other criminal cases
and any civil matters or proceedings, unless the court finds in the
interest of justice that it is not appropriate.

(b) To continue any hearing in a criminal proceeding, including
the trial, (1) a written notice shall be filed and served on all parties
to the proceeding at least two court days before the hearing sought
to be continued, together with affidavits or declarations detailing
specific facts showing that a continuance is necessary and (2)
within two court days of learning that he or she has a conflict in
the scheduling of any court hearing, including a trial, an attorney
shall notify the calendar clerk of each court involved, in writing,
indicating which hearing was set first. A party shall not be deemed
to have been served within the meaning of this section until that
party actually has received a copy of the documents to be served,
unless the party, after receiving actual notice of the request for
continuance, waives the right to have the documents served in a
timely manner. Regardless of the proponent of the motion, the
prosecuting attorney shall notify the people’s witnesses and the
defense attorney shall notify the defense’s witnesses of the notice
of motion, the date of the hearing, and the witnesses’ right to be
heard by the court.

(c) Notwithstanding subdivision (b), a party may make a motion
for a continuance without complying with the requirements of that
subdivision. However, unless the moving party shows good cause
for the failure to comply with those requirements, the court may
impose sanctions as provided in Section 1050.5.

(d) When a party makes a motion for a continuance without
complying with the requirements of subdivision (b), the court shall
hold a hearing on whether there is good cause for the failure to
comply with those requirements. At the conclusion of the hearing,
the court shall make a finding whether good cause has been shown
and, if it finds that there is good cause, shall state on the record
the facts proved that justify its finding. A statement of the finding
and a statement of facts proved shall be entered in the minutes. If
the moving party is unable to show good cause for the failure to
give notice, the motion for continuance shall not be granted.

(e) Continuances shall be granted only upon a showing of good
cause. Neither the convenience of the parties nor a stipulation of
the parties is in and of itself good cause.

(f) At the conclusion of the motion for continuance, the court
shall make a finding whether good cause has been shown and, if
it finds that there is good cause, shall state on the record the facts
proved that justify its finding. A statement of facts proved shall
be entered in the minutes.

(g) (1) When deciding whether or not good cause for a
continuance has been shown, the court shall consider the general
convenience and prior commitments of all witnesses, including
peace officers. Both the general convenience and prior
commitments of each witness also shall be considered in selecting
a continuance date if the motion is granted. The facts as to
inconvenience or prior commitments may be offered by the witness
or by a party to the case.

(2) For purposes of this section, “good cause” includes, but is
not limited to, those cases begin delete involving murder, as end delete begin insert where any of the
following has occurred and the prosecuting attorney assigned to
the case has another trial, preliminary hearing, or motion to
suppress in progress in that court or another court: end insert

begin insert (A) end insert begin insert   end insert begin insert Murder, as end insert defined in subdivision (a) of Section 187 begin delete ,
allegations end delete begin insert . end insert

begin insert (B) end insert begin insert   end insert begin insert Allegations end insert that begin insert involve end insert stalking, as defined in Section 646.9 begin delete ,
a violation end delete begin insert . end insert

begin insert (C) end insert begin insert   end insert begin insert A violation end insert of one or more of the sections specified in
subdivision (a) of Section 11165.1 or Section begin delete 11165.6, or domestic end delete
begin insert 11165.6. end insert

begin insert (D) end insert begin insert   end insert begin insert Domestic end insert violence as defined in Section 13700 begin delete , or a end delete begin insert . end insert

begin insert (E) end insert begin insert   end insert begin insert A end insert case being handled in the Career Criminal Prosecution
Program pursuant to Sections 999b begin delete through end delete begin insert to end insert 999h, begin delete or a end delete begin insert inclusive. end insert

begin insert (F) end insert begin insert   end insert begin insert A end insert hate crime, as defined in Title 11.6 (commencing with
Section 422.6) of Part 1 begin delete , has occurred and the prosecuting attorney
assigned to the case has another trial, preliminary hearing, or
motion to suppress in progress in that court or another court. A
continuance end delete begin insert . end insert

begin insert

(G) A case involving a crime against a person with a
developmental disability.

end insert

begin insert (H) end insert begin insert   end insert begin insert A continuance end insert under this begin delete paragraph end delete begin insert subdivision end insert shall be
limited to a maximum of 10 additional court days.

(3) Only one continuance per case may be granted to the people
under this subdivision for cases involving stalking, hate crimes,
or cases handled under the Career Criminal Prosecution Program.
Any continuance granted to the people in a case involving stalking
or handled under the Career Criminal Prosecution Program shall
be for the shortest time possible, not to exceed 10 court days.

(h) Upon a showing that the attorney of record at the time of
the defendant’s first appearance in the superior court on an
indictment or information is a Member of the Legislature of this
state and that the Legislature is in session or that a legislative
interim committee of which the attorney is a duly appointed
member is meeting or is to meet within the next seven days, the
defendant shall be entitled to a reasonable continuance not to
exceed 30 days.

(i) A continuance shall be granted only for that period of time
shown to be necessary by the evidence considered at the hearing
on the motion. Whenever any continuance is granted, the court
shall state on the record the facts proved that justify the length of
the continuance, and those facts shall be entered in the minutes.

(j) Whenever it shall appear that any court may be required,
because of the condition of its calendar, to dismiss an action
pursuant to Section 1382, the court must immediately notify the
Chair of the Judicial Council.

(k) This section shall not apply when the preliminary
examination is set on a date less than 10 court days from the date
of the defendant’s arraignment on the complaint, and the
prosecution or the defendant moves to continue the preliminary
examination to a date not more than 10 court days from the date
of the defendant’s arraignment on the complaint.

(l) This section is directory only and does not mandate dismissal
of an action by its terms.

begin insert

(m) For purposes of this section, a “developmental disability”
has the same meaning as found in subdivision (h) of Section 1385
of the Evidence Code.

end insert

begin insert

begin insert SEC. 10. end insert   

end insert

begin insert Section 13519.06 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 13519.06. end insert   

(a) The Commission on Peace Officer Standards
and Training shall develop, and periodically update as necessary,
a model general order or other formal policy for dealing with
crime victims with developmental disabilities.

(b) The purpose of the model policy shall be to ensure equal
protection of the law for people with developmental disabilities
by ensuring highly professional law enforcement that takes full
account of the unique needs of victims with developmental
disabilities. To that end, the model policy shall include all of the
following:

(1) Information on the wide prevalence of crimes against people
with developmental disabilities.

(2) A statement from the agency’s law enforcement executive
emphasizing the agency’s high-priority commitment to providing
equal protection to meeting the special needs of victims with
developmental disabilities.

(3) The fact that victims and witnesses with developmental
disabilities can be highly credible witnesses when interviewed
appropriately and when given instructions for appropriate
interview techniques.

(4) A description of the training materials that are available,
including, but not limited to, further interview training
opportunities and the telecourse developed by the commission
pursuant to Section 13515.

(5) The definitions of a “dependent adult,” as set forth in Section
368, and “dependent person,” as set forth in Section 288, noting
that they apply to people with developmental disabilities regardless
of the fact that some may live independently.

(6) The importance of enforcing provisions requiring certain
persons to report elder and dependent adult abuse and child abuse
and that prohibit interference with that reporting.

(7) A list of resources available to law enforcement agencies,
including any local resources.

(8) A general requirement that suspects in these cases be
arrested whenever there is probable cause and absent exigent
circumstances, including cases of violations of emergency
protective orders, temporary restraining orders, or similar court
orders, and cases of mandated reporters who fail to make a report
as required by law.

(9) Assisting victims in pursuing criminal options, including
connecting the victim with the appropriate social service agencies
that can provide them additional support.

(10) Detailed instructions regarding the procedures for
obtaining an emergency protective order and specifying that the
order may be sought at any time, and including a space for the
telephone number for the court clerk in the appropriate court
jurisdiction.

(11) Procedures to handle each report, including (A) prompt
response to all reported serious or violent crimes in progress and
cases in which serious or violent crimes may be imminent, or (B)
followup of each report to determine whether there is probable
cause for arrest or other law enforcement intervention.

(12) Procedures for seeking assistance from the Bureau of
Medi-Cal Fraud and Elder Abuse.

(13) Procedures for cooperating with county adult protective
services and child protective services and local long-term care
ombudsman programs, and stating that law enforcement agencies
shall retain responsibility for all criminal investigations, pursuant
to subdivision (b) of Section 368.5.

(14) The law enforcement agency’s reporting and
cross-reporting requirements, including those pursuant to
paragraph (1) of subdivision (a) of Section 422.55 and Section
13023 of this code, and subdivisions (b), (c), (e), and (f) of Section
15640 of the Welfare and Institutions Code.

(15) A requirement that the law enforcement agency report to
the appropriate professional licensing, credentialing, or regulatory
agency where there is reasonable suspicion that a professional
person subject the regulatory agency’s jurisdiction committed a
crime against a person with a developmental disability or failed
to report, as required, regardless of whether the law enforcement
agency or a prosecutor has pursued or intends to pursue criminal
prosecution.

(16) A procedure to allow designated supervisors to develop
alternative provisions of the policy to apply in unusual individual
cases, including a requirement for written reports to the chief,
sheriff, or director of the law enforcement agency each time this
occurs.

(c) In developing the model policy, the commission shall consult
the California Police Chiefs Association, the California State
Sheriffs’ Association, the California District Attorneys Association,
the Bureau of Medi-Cal Fraud and Elder Abuse, the California
Long-Term Care Ombudsman Association, the County Welfare
Directors Association, and subject-matter experts from the
developmental disability field including the State Department of
Developmental Services, regional centers, and advocacy
organizations, including those the commission consulted in
developing the telecourse pursuant to Section 13515.

(d) Within one year of the date when the commission adopts the
model policy, each law enforcement agency in this state shall adopt
and implement the model policy, including any changes consistent
with subdivision (b) that the agency deems appropriate.

end insert

begin insert

begin insert SEC. 11. end insert   

end insert begin insert

No reimbursement is required by this act pursuant
to Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert begin insert

However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end insert

begin delete

SECTION 1.  

(a) The Legislature hereby finds and declares
all of the following:

(1) Research has found that despite a high number of sexual
assaults committed against people with intellectual disabilities,
there are very few criminal convictions in these cases.

(2) Research indicates that no action was taken in almost half
of these cases and that prosecution or disciplinary action took place
in only 18.5 percent of the cases.

(3) It has been reported that 65 percent of these cases that were
reported to the police were not prosecuted because the police
declined to press charges, usually citing the victim as an
incompetent witness.

(4) It is understood that among the factors that contribute to the
difficulty in obtaining criminal convictions in these cases is a lack
of clear protocols and direction for law enforcement, and a lack
of necessary or additional protections for people with intellectual
and developmental disabilities.

(b) It is the intent of the Legislature to enact legislation that
would help to ensure that there is justice for individuals with
intellectual and developmental disabilities who are victims of
sexual assault.

end delete