Amended in Senate April 10, 2014

Amended in Senate March 5, 2014

Senate Bill No. 838

Introduced by Senator Beall

(Coauthor: Assembly Member Maienschein)

January 6, 2014

An act to add Section 290.1 to the Penal Code, and to amend Sections 676 and 707 of the Welfare and Institutions Code, relating to juveniles.

LEGISLATIVE COUNSEL’S DIGEST

SB 838, as amended, Beall. Juveniles.

Existing law makes it an offense for a person to willfully threaten to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, and causes that person reasonably to be in fear for his or her own safety or for his or her immediate family’s safety. Existing law makes it an offense for a person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in any area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.

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This bill would make it an offense for a person who, with the intent to intimidate, embarrass, or harass another person, by means of an electronic communication device, and without consent of the other person, electronically distributes, publishes, e-mails, hyperlinks, or makes available for downloading, a digital image of a sexual nature of another person, or shows or shares a photograph of the intimate body parts of that person, or an electronic message of a harassing nature about another person, which would be likely to intimidate, harass, or produce embarrassment. The bill would provide that the offense is punishable by imprisonment for up to one year in a county jail, by a fine of not more than $1,000, or by both that fine and imprisonment. The bill would provide that if the material is of a sexual nature and identifies a minor, or shows intimate body parts, as defined, of the minor, the offense would be punishable by imprisonment in the state prison for 16 months, or 2 years or 3 years, or in a county jail for up to one year, or by a fine up to $10,000, or by both the fine and imprisonment.

end delete begin insert

This bill would require additional penalties if a person convicted of specified sex offenses, who, with the intent to identify, intimidate, harass, humiliate, or bully the victim, uses social media, including, but not limited to, posting photos online or sharing cellular telephone photos of the incident that resulted in the conviction, or posting messages online or sharing cellular telephone messages pertaining to the incident that resulted in the conviction. The bill would provide for imposition of an additional year of incarceration, or a fine not exceeding $10,000, or both, if the sex offense conviction was for a felony, and would provide for imposition of an additional fine not exceeding $5,000 if the sex offense conviction was for a misdemeanor.

end insert

By creating begin delete new end delete begin insert enhancements for existing end insert crimes, this bill would impose a state-mandated local program.

Under existing law, as amended by Proposition 21, an initiative statute approved by the voters at the March 7, 2000, statewide primary election, juvenile court hearings are closed to the public, except for juvenile court hearings alleging the commission of specified felonies. The Legislature may amend Proposition 21 by a statute passed in each house by a 2⁄3 vote.

This bill would add to that list of felonies, to which the public may be admitted for the hearing, certain sex offenses accomplished because the person is prevented from resisting begin insert due to being rendered unconscious end insert by any intoxicating, anesthetizing, or controlled substance, or when the victim is at the time incapable, because of begin delete mental disorder or developmental or physical end delete begin insert a end insert disability, of giving consent, and this is known or reasonably should be known to the person committing the offense. The bill would also add to that list of felonies additional specified sex offenses and a sexual offense where the offender used social media to identify, intimidate, harass, humiliate, or bully the victim.

Existing law provides that any person under 18 years of age who commits a crime is within the jurisdiction of the juvenile court, except as specified. Existing law, as amended by Proposition 21, enumerates certain crimes for which a minor 14 years of age or older may be prosecuted under the general law in a court of criminal jurisdiction.

This bill would add to that list of crimes, for which a minor 14 years of age or older may be prosecuted under the general law in a court of criminal jurisdiction, certain sex offenses accomplished because the person is prevented from resisting begin insert due to being rendered unconscious end insert by any intoxicating, anesthetizing, or controlled substance, or when the victim is at the time incapable, because of begin delete mental disorder or developmental or physical end delete begin insert a end insert disability, of giving consent, and this is known or reasonably should be known to the person committing the offense, and a sexual offense where the offender used social media to identify, intimidate, harass, humiliate, or bully the victim.

Because this bill would amend Proposition 21, it would require a 2⁄3 vote.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

SECTION 1.  

This act shall be known, and may be cited, as
Audrie’s Law.

begin delete

SEC. 2.  

Section 290.1 is added to the Penal Code, to read:

290.1.  

(a) Every person who, with the intent to intimidate,
embarrass, or harass another person, by means of an electronic
communication device, and without consent of the other person,
electronically distributes, publishes, e-mails, hyperlinks, or makes
available for downloading, a digital image of a sexual nature of
another person, or shows or shares a photograph of the intimate
body parts of that person, or an electronic message of a harassing
nature about another person, which would be likely to intimidate,
harass, or produce embarrassment, is guilty of a misdemeanor
punishable by up to one year in a county jail, by a fine of not more
than one thousand dollars ($1,000), or by both that fine and
imprisonment.

(b) Every person who engages in behavior described in
subdivision (a), and the material distributed identifies a minor and
is of a sexual nature, or shows the intimate body parts of a minor,
is guilty of a felony and shall be punished by imprisonment in the
state prison for 16 months, or two years or three years, or in a
county jail for not exceeding one year, or by a fine not exceeding
ten thousand dollars ($10,000), or by both the fine and
imprisonment.

(c) For purposes of this section, the following definitions apply:

(1) “Electronic communication device” includes, but is not
limited to, telephones, cell phones, smart phones, computers,
Internet Web pages or sites, Internet phones, hybrid
cellular-Internet-wireless devices, personal digital assistants
(PDAs), video recorders, fax machines, or pagers.

(2) “Electronic communication” has the same meaning as the
term is defined in Section 2510(12) of Title 18 of the United States
Code.

(3) “Harass” means to knowingly and willfully engage in
conduct directed at a specific person that a reasonable person would
consider as seriously alarming, seriously annoying, seriously
tormenting, or seriously terrorizing the person and that serves no
legitimate purpose.

(4) “Of a harassing nature” means of a nature that a reasonable
person would consider as seriously alarming, seriously annoying,
seriously tormenting, or seriously terrorizing of the person and
that serves no legitimate purpose.

(5) “Intimate body parts” means the breasts, genital area, groin,
inner thighs, and buttocks.

end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 290.1 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 290.1. end insert   

(a) A person convicted of a sex offense listed in
subdivision (c) of Section 290 who, with the intent to identify,
intimidate, harass, humiliate, or bully the victim, uses social media,
including, but not limited to, posting photos online or sharing
cellular telephone photos of the incident that resulted in the
conviction or posting messages online or sharing cellular telephone
messages pertaining to the incident shall, in addition to any other
punishment imposed for that conviction, be punished by an
additional term of incarceration or additional fine pursuant to
subdivision (b).

(b) (1) If the conviction for the offense listed in subdivision (c)
of Section 290 is for a felony, the offender shall be punished by an
additional consecutive year in prison, or by a fine not exceeding
ten thousand dollars ($10,000), or by both imprisonment and that
fine.

(2) If the conviction for the offense listed in subdivision (c) of
Section 290 is for a misdemeanor, the offender shall be punished
by an additional fine not exceeding five thousand dollars ($5,000).

end insert

SEC. 3.  

Section 676 of the Welfare and Institutions Code is
amended to read:

676.  

(a) Unless requested by the minor concerning whom the
petition has been filed and any parent or guardian present, the
public shall not be admitted to a juvenile court hearing. Nothing
in this section shall preclude the attendance of up to two family
members of a prosecuting witness for the support of that witness,
as authorized by Section 868.5 of the Penal Code. The judge or
referee may nevertheless admit those persons he or she deems to
have a direct and legitimate interest in the particular case or the
work of the court. However, except as provided in subdivision (b),
members of the public shall be admitted, on the same basis as they
may be admitted to trials in a court of criminal jurisdiction, to
hearings concerning petitions filed pursuant to Section 602 alleging
that a minor is a person described in Section 602 by reason of the
violation of any one of the following offenses:

(1) Murder.

(2) Arson of an inhabited building.

(3) Robbery while armed with a dangerous or deadly weapon.

(4) Rape with force or violence, threat of great bodily harm, or
when the person is prevented from resisting begin insert due to being rendered
unconscious end insert by any intoxicating, anesthetizing, or controlled
substance, or when the victim is at the time incapable, because of
begin delete mental disorder or developmental or physical end delete begin insert a end insert disability, of giving
consent, and this is known or reasonably should be known to the
person committing the offense.

(5) Sodomy by force, violence, duress, menace, threat of great
bodily harm, or when the person is prevented from resisting begin insert due
to being rendered unconscious end insert by any intoxicating, anesthetizing,
or controlled substance, or when the victim is at the time incapable,
because of begin delete mental disorder or developmental or physical end delete begin insert a end insert
disability, of giving consent, and this is known or reasonably should
be known to the person committing the offense.

(6) Oral copulation by force, violence, duress, menace, threat
of great bodily harm, or when the person is prevented from resisting
begin insert due to being rendered unconscious end insert by any intoxicating,
anesthetizing, or controlled substance, or when the victim is at the
time incapable, because of begin delete mental disorder or developmental or
physical end delete begin insert a end insert disability, of giving consent, and this is known or
reasonably should be known to the person committing the offense.

(7) Any offense specified in subdivision (a) or (e) of Section
289 of the Penal Code.

(8) Kidnapping for ransom.

(9) Kidnapping for purpose of robbery.

(10) Kidnapping with bodily harm.

(11) Assault with intent to murder or attempted murder.

(12) Assault with a firearm or destructive device.

(13) Assault by any means of force likely to produce great bodily
injury.

(14) Discharge of a firearm into an inhabited dwelling or
occupied building.

(15) Any offense described in Section 1203.09 of the Penal
Code.

(16) Any offense described in Section 12022.5 or 12022.53 of
the Penal Code.

(17) Any felony offense in which a minor personally used a
weapon described in any provision listed in Section 16590 of the
Penal Code.

(18) Burglary of an inhabited dwelling house or trailer coach,
as defined in Section 635 of the Vehicle Code, or the inhabited
portion of any other building, if the minor previously has been
adjudged a ward of the court by reason of the commission of any
offense listed in this section, including an offense listed in this
paragraph.

(19) Any felony offense described in Section 136.1 or 137 of
the Penal Code.

(20) Any offense as specified in Sections 11351, 11351.5,
11352, 11378, 11378.5, 11379, and 11379.5 of the Health and
Safety Code.

(21) Criminal street gang activity which constitutes a felony
pursuant to Section 186.22 of the Penal Code.

(22) Manslaughter as specified in Section 192 of the Penal Code.

(23) Driveby shooting or discharge of a weapon from or at a
motor vehicle as specified in Sections 246, 247, and 26100 of the
Penal Code.

(24) Any crime committed with an assault weapon, as defined
in Section 30510 of the Penal Code, including possession of an
assault weapon as specified in Section 30605 of the Penal Code.

(25) Carjacking, while armed with a dangerous or deadly
weapon.

(26) Kidnapping, in violation of Section 209.5 of the Penal
Code.

(27) Torture, as described in Sections 206 and 206.1 of the Penal
Code.

(28) Aggravated mayhem, in violation of Section 205 of the
Penal Code.

(29) Any offense specified in subdivision (c) of Section 290.

(30) Any sex offense in which the offender uses social media,
including, but not limited to, posting online photos and messages
or sharing cellular photos or messages of the incident, to identify,
intimidate, harass, humiliate, or bully the victim.

(b) Where the petition filed alleges that the minor is a person
described in Section 602 by reason of the commission of rape with
force or violence or great bodily harm; sodomy by force, violence,
duress, menace, threat of great bodily harm, or when the person
is prevented from resisting by any intoxicating, anesthetizing, or
controlled substance, or when the victim is at the time incapable,
because of mental disorder or developmental or physical disability,
of giving consent, and this is known or reasonably should be known
to the person committing the offense; oral copulation by force,
violence, duress, menace, threat of great bodily harm, or when the
person is prevented from resisting by any intoxicating,
anesthetizing, or controlled substance, or when the victim is at the
time incapable, because of mental disorder or developmental or
physical disability, of giving consent, and this is known or
reasonably should be known to the person committing the offense;
any offense specified in Section 289 or subdivision (c) of Section
290 of the Penal Code, or when the victim of a sexual offense is
then identified, intimidated, harassed, humiliated, or bullied
through social media, the use of smart phone photographs, or text
messaging, members of the public shall not be admitted to the
hearing in either of the following instances:

(1) Upon a motion for a closed hearing by the district attorney,
who shall make the motion if so requested by the victim.

(2) During the victim’s testimony, if, at the time of the offense
the victim was under 16 years of age.

(c) The name of a minor found to have committed one of the
offenses listed in subdivision (a) shall not be confidential, unless
the court, for good cause, so orders. As used in this subdivision,
“good cause” shall be limited to protecting the personal safety of
the minor, a victim, or a member of the public. The court shall
make a written finding, on the record, explaining why good cause
exists to make the name of the minor confidential.

(d) Notwithstanding Sections 827 and 828 and subject to
subdivisions (e) and (f), when a petition is sustained for any offense
listed in subdivision (a), the charging petition, the minutes of the
proceeding, and the orders of adjudication and disposition of the
court that are contained in the court file shall be available for public
inspection. Nothing in this subdivision shall be construed to
authorize public access to any other documents in the court file.

(e) The probation officer or any party may petition the juvenile
court to prohibit disclosure to the public of any file or record. The
juvenile court shall prohibit the disclosure if it appears that the
harm to the minor, victims, witnesses, or public from the public
disclosure outweighs the benefit of public knowledge. However,
the court shall not prohibit disclosure for the benefit of the minor
unless the court makes a written finding that the reason for the
prohibition is to protect the safety of the minor.

(f) Nothing in this section shall be applied to limit the disclosure
of information as otherwise provided for by law.

(g) The juvenile court shall for each day that the court is in
session, post in a conspicuous place which is accessible to the
general public, a written list of hearings that are open to the general
public pursuant to this section, the location of those hearings, and
the time when the hearings will be held.

SEC. 4.  

Section 707 of the Welfare and Institutions Code is
amended to read:

707.  

(a) (1) In any case in which a minor is alleged to be a
person described in subdivision (a) of Section 602 by reason of
the violation, when he or she was 16 years of age or older, of any
criminal statute or ordinance except those listed in subdivision (b),
upon motion of the petitioner made prior to the attachment of
jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history
of the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence that the petitioner or the minor may wish
to submit, the juvenile court may find that the minor is not a fit
and proper subject to be dealt with under the juvenile court law if
it concludes that the minor would not be amenable to the care,
treatment, and training program available through the facilities of
the juvenile court, based upon an evaluation of the following
criteria:

(A) The degree of criminal sophistication exhibited by the minor.

(B) Whether the minor can be rehabilitated prior to the
expiration of the juvenile court’s jurisdiction.

(C) The minor’s previous delinquent history.

(D) Success of previous attempts by the juvenile court to
rehabilitate the minor.

(E) The circumstances and gravity of the offense alleged in the
petition to have been committed by the minor.

A determination that the minor is not a fit and proper subject to
be dealt with under the juvenile court law may be based on any
one or a combination of the factors set forth above, which shall be
recited in the order of unfitness. In any case in which a hearing
has been noticed pursuant to this section, the court shall postpone
the taking of a plea to the petition until the conclusion of the fitness
hearing, and no plea that may have been entered already shall
constitute evidence at the hearing.

(2) (A) This paragraph shall apply to a minor alleged to be a
person described in Section 602 by reason of the violation, when
he or she has attained 16 years of age, of any felony offense when
the minor has been declared to be a ward of the court pursuant to
Section 602 on one or more prior occasions if both of the following
apply:

(i) The minor has previously been found to have committed two
or more felony offenses.

(ii) The offenses upon which the prior petition or petitions were
based were committed when the minor had attained 14 years of
age.

(B) Upon motion of the petitioner made prior to the attachment
of jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history
of the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence that the petitioner or the minor may wish
to submit, the minor shall be presumed to be not a fit and proper
subject to be dealt with under the juvenile court law unless the
juvenile court concludes, based upon evidence, which evidence
may be of extenuating or mitigating circumstances, that the minor
would be amenable to the care, treatment, and training program
available through the facilities of the juvenile court based upon an
evaluation of the following criteria:

(i) The degree of criminal sophistication exhibited by the minor.

(ii) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court’s jurisdiction.

(iii) The minor’s previous delinquent history.

(iv) Success of previous attempts by the juvenile court to
rehabilitate the minor.

(v) The circumstances and gravity of the offense alleged in the
petition to have been committed by the minor.

A determination that the minor is a fit and proper subject to be
dealt with under the juvenile court law shall be based on a finding
of amenability after consideration of the criteria set forth above,
and findings therefore recited in the order as to each of the above
criteria that the minor is fit and proper under each and every one
of the above criteria. In making a finding of fitness, the court may
consider extenuating and mitigating circumstances in evaluating
each of the above criteria. In any case in which the hearing has
been noticed pursuant to this section, the court shall postpone the
taking of a plea to the petition until the conclusion of the fitness
hearing and no plea which may have been entered already shall
constitute evidence at the hearing. If the minor is found to be a fit
and proper subject to be dealt with under the juvenile court law
pursuant to this subdivision, the minor shall be committed to
placement in a juvenile hall, ranch camp, forestry camp, boot camp,
or secure juvenile home pursuant to Section 730, or in any
institution operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities.

(3) If, pursuant to this subdivision, the minor is found to be not
a fit and proper subject for juvenile court treatment and is tried in
a court of criminal jurisdiction and found guilty by the trier of fact,
the judge may commit the minor to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities, in lieu of
sentencing the minor to the state prison, unless the limitations
specified in Section 1732.6 apply.

(b) Subdivision (c) shall be applicable in any case in which a
minor is alleged to be a person described in Section 602 by reason
of the violation of one of the following offenses:

(1) Murder.

(2) Arson, as provided in subdivision (a) or (b) of Section 451
of the Penal Code.

(3) Robbery.

(4) Rape with force, violence, threat of great bodily harm, or
when the person is prevented from resisting begin insert due to being rendered
unconscious end insert by any intoxicating, anesthetizing, or controlled
substance, or when the victim is at the time incapable, because of
begin delete mental disorder or developmental or physical end delete begin insert a end insert disability, of giving
consent, and this is known or reasonably should be known to the
person committing the offense.

(5) Sodomy by force, violence, duress, menace, threat of great
bodily harm, or when the person is prevented from resisting begin insert due
to being rendered unconscious end insert by any intoxicating, anesthetizing,
or controlled substance, or when the victim is at the time incapable,
because of begin delete mental disorder or developmental or physical end delete begin insert a end insert
disability, of giving consent, and this is known or reasonably should
be known to the person committing the offense.

(6) A lewd or lascivious act as provided in subdivision (b) of
Section 288 of the Penal Code, or when the person is prevented
from resisting begin insert due to being rendered unconscious end insert by any
intoxicating, anesthetizing, or controlled substance, or when the
victim is at the time incapable, because of begin delete mental disorder or
developmental or physical end delete begin insert a end insert disability, of giving consent, and this
is known or reasonably should be known to the person committing
the offense.

(7) Oral copulation by force, violence, duress, menace, threat
of great bodily harm, or when the person is prevented from resisting
begin insert due to being rendered unconscious end insert by any intoxicating,
anesthetizing, or controlled substance, or when the victim is at the
time incapable, because of begin delete mental disorder or developmental or
physical end delete begin insert a end insert disability, of giving consent, and this is known or
reasonably should be known to the person committing the offense.

(8) An offense specified in subdivision (a) or (e) of Section 289
of the Penal Code.

(9) Kidnapping for ransom.

(10) Kidnapping for purposes of robbery.

(11) Kidnapping with bodily harm.

(12) Attempted murder.

(13) Assault with a firearm or destructive device.

(14) Assault by any means of force likely to produce great bodily
injury.

(15) Discharge of a firearm into an inhabited or occupied
building.

(16) An offense described in Section 1203.09 of the Penal Code.

(17) An offense described in Section 12022.5 or 12022.53 of
the Penal Code.

(18) A felony offense in which the minor personally used a
weapon described in any provision listed in Section 16590 of the
Penal Code.

(19) A felony offense described in Section 136.1 or 137 of the
Penal Code.

(20) Manufacturing, compounding, or selling one-half ounce
or more of a salt or solution of a controlled substance specified in
subdivision (e) of Section 11055 of the Health and Safety Code.

(21) A violent felony, as defined in subdivision (c) of Section
667.5 of the Penal Code, which also would constitute a felony
violation of subdivision (b) of Section 186.22 of the Penal Code.

(22) Escape, by the use of force or violence, from a county
juvenile hall, home, ranch, camp, or forestry camp in violation of
subdivision (b) of Section 871 if great bodily injury is intentionally
inflicted upon an employee of the juvenile facility during the
commission of the escape.

(23) Torture as described in Sections 206 and 206.1 of the Penal
Code.

(24) Aggravated mayhem, as described in Section 205 of the
Penal Code.

(25) Carjacking, as described in Section 215 of the Penal Code,
while armed with a dangerous or deadly weapon.

(26) Kidnapping for purposes of sexual assault, as punishable
in subdivision (b) of Section 209 of the Penal Code.

(27) Kidnapping as punishable in Section 209.5 of the Penal
Code.

(28) The offense described in subdivision (c) of Section 26100
of the Penal Code.

(29) The offense described in Section 18745 of the Penal Code.

(30) Voluntary manslaughter, as described in subdivision (a)
of Section 192 of the Penal Code.

(31) Any sex offense in which the offender uses social media,
including, but not limited to, posting online photos and messages
or sharing cellular photos or messages of the incident, to identify,
intimidate, harass, humiliate, or bully the victim.

(c) With regard to a minor alleged to be a person described in
Section 602 by reason of the violation, when he or she was 14
years of age or older, of any of the offenses listed in subdivision
(b), upon motion of the petitioner made prior to the attachment of
jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history
of the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence that the petitioner or the minor may wish
to submit, the minor shall be presumed to be not a fit and proper
subject to be dealt with under the juvenile court law unless the
juvenile court concludes, based upon evidence, which evidence
may be of extenuating or mitigating circumstances, that the minor
would be amenable to the care, treatment, and training program
available through the facilities of the juvenile court based upon an
evaluation of each of the following criteria:

(1) The degree of criminal sophistication exhibited by the minor.

(2) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court’s jurisdiction.

(3) The minor’s previous delinquent history.

(4) Success of previous attempts by the juvenile court to
rehabilitate the minor.

(5) The circumstances and gravity of the offenses alleged in the
petition to have been committed by the minor.

A determination that the minor is a fit and proper subject to be
dealt with under the juvenile court law shall be based on a finding
of amenability after consideration of the criteria set forth above,
and findings therefore recited in the order as to each of the above
criteria that the minor is fit and proper under each and every one
of the above criteria. In making a finding of fitness, the court may
consider extenuating or mitigating circumstances in evaluating
each of the above criteria. In any case in which a hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness hearing
and no plea which may have been entered already shall constitute
evidence at the hearing. If, pursuant to this subdivision, the minor
is found to be not a fit and proper subject for juvenile court
treatment and is tried in a court of criminal jurisdiction and found
guilty by the trier of fact, the judge may commit the minor to the
Department of Corrections and Rehabilitation, Division of Juvenile
Facilities, in lieu of sentencing the minor to the state prison, unless
the limitations specified in Section 1732.6 apply.

(d) (1) Except as provided in subdivision (b) of Section 602,
the district attorney or other appropriate prosecuting officer may
file an accusatory pleading in a court of criminal jurisdiction
against any minor 16 years of age or older who is accused of
committing an offense enumerated in subdivision (b).

(2) Except as provided in subdivision (b) of Section 602, the
district attorney or other appropriate prosecuting officer may file
an accusatory pleading against a minor 14 years of age or older in
a court of criminal jurisdiction in any case in which any one or
more of the following circumstances apply:

(A) The minor is alleged to have committed an offense that if
committed by an adult would be punishable by death or
imprisonment in the state prison for life.

(B) The minor is alleged to have personally used a firearm
during the commission or attempted commission of a felony, as
described in Section 12022.5 or 12022.53 of the Penal Code.

(C) The minor is alleged to have committed an offense listed
in subdivision (b) in which any one or more of the following
circumstances apply:

(i) The minor has previously been found to be a person described
in Section 602 by reason of the commission of an offense listed
in subdivision (b).

(ii) The offense was committed for the benefit of, at the direction
of, or in association with any criminal street gang, as defined in
subdivision (f) of Section 186.22 of the Penal Code, with the
specific intent to promote, further, or assist in criminal conduct by
gang members.

(iii) The offense was committed for the purpose of intimidating
or interfering with any other person’s free exercise or enjoyment
of a right secured to him or her by the Constitution or laws of this
state or by the Constitution or laws of the United States and because
of the other person’s race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation, or because the minor
perceives that the other person has one or more of those
characteristics, as described in Title 11.6 (commencing with
Section 422.55) of Part 1 of the Penal Code.

(iv) The victim of the offense was 65 years of age or older, or
blind, deaf, quadriplegic, paraplegic, developmentally disabled,
or confined to a wheelchair, and that disability was known or
reasonably should have been known to the minor at the time of
the commission of the offense.

(3) Except as provided in subdivision (b) of Section 602, the
district attorney or other appropriate prosecuting officer may file
an accusatory pleading in a court of criminal jurisdiction against
any minor 16 years of age or older who is accused of committing
one or more of the following offenses, if the minor has previously
been found to be a person described in Section 602 by reason of
the violation of a felony offense, when he or she was 14 years of
age or older:

(A) A felony offense in which it is alleged that the victim of the
offense was 65 years of age or older, or blind, deaf, quadriplegic,
paraplegic, developmentally disabled, or confined to a wheelchair,
and that disability was known or reasonably should have been
known to the minor at the time of the commission of the offense.

(B) A felony offense committed for the purposes of intimidating
or interfering with any other person’s free exercise or enjoyment
of a right secured to him or her by the Constitution or laws of this
state or by the Constitution or laws of the United States and because
of the other person’s race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation, or because the minor
perceived that the other person had one or more of those
characteristics, as described in Title 11.6 (commencing with
Section 422.55) of Part 1 of the Penal Code.

(C) The offense was committed for the benefit of, at the direction
of, or in association with any criminal street gang as prohibited by
Section 186.22 of the Penal Code.

(4) In any case in which the district attorney or other appropriate
prosecuting officer has filed an accusatory pleading against a minor
in a court of criminal jurisdiction pursuant to this subdivision, the
case shall then proceed according to the laws applicable to a
criminal case. In conjunction with the preliminary hearing as
provided in Section 738 of the Penal Code, the magistrate shall
make a finding that reasonable cause exists to believe that the
minor comes within this subdivision. If reasonable cause is not
established, the criminal court shall transfer the case to the juvenile
court having jurisdiction over the matter.

(5) For an offense for which the prosecutor may file the
accusatory pleading in a court of criminal jurisdiction pursuant to
this subdivision, but elects instead to file a petition in the juvenile
court, if the minor is subsequently found to be a person described
in subdivision (a) of Section 602, the minor shall be committed to
placement in a juvenile hall, ranch camp, forestry camp, boot camp,
or secure juvenile home pursuant to Section 730, or in any
institution operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities.

(6) If, pursuant to this subdivision, the minor is found to be not
a fit and proper subject for juvenile court treatment and is tried in
a court of criminal jurisdiction and found guilty by the trier of fact,
the judge may commit the minor to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities, in lieu of
sentencing the minor to the state prison, unless the limitations
specified in Section 1732.6 apply.

(e) A report submitted by a probation officer pursuant to this
section regarding the behavioral patterns and social history of the
minor being considered for a determination of unfitness shall
include any written or oral statement offered by the victim, the
victim’s parent or guardian if the victim is a minor, or if the victim
has died, the victim’s next of kin, as authorized by subdivision (b)
of Section 656.2. Victims’ statements shall be considered by the
court to the extent they are relevant to the court’s determination
of unfitness.

SEC. 5.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because 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.