Amended in Assembly July 2, 2014

Amended in Senate May 27, 2014

Amended in Senate May 7, 2014

Amended in Senate April 10, 2014

Amended in Senate March 5, 2014

Senate Bill No. 838

Introduced by Senator Beall

(Coauthors: Senators Anderson and Cannella)

(Coauthors: Assembly Members Garcia, Gonzalez, Gorell, Maienschein, Quirk-Silva, and Waldron)

January 6, 2014

An act to add Section 290.1 to the Penal Code, and to amend Sections 676, 730, and 790 of the Welfare and Institutions Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

SB 838, as amended, Beall. Crimes: Sex offenses: juvenile hearings.

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.

This bill would require additional penalties if a person convicted of specified sex offenses, who, with the intent to intimidate, harass, humiliate, or bully the victim, uses social media, including, but not limited to, posting begin delete photos end delete begin insert photographs end insert online or sharing cellular telephone begin delete photos end delete begin insert photographs end insert 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.

By creating enhancements for existing 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 due to being rendered unconscious by any intoxicating, anesthetizing, or controlled substance, or when the victim is at the time incapable, because of a disability, of giving consent, and this is known or reasonably should be known to the person committing the offense.

Existing law provides that when a minor is adjudged a ward of the court, as specified, the court may order any of certain types of treatment, and as an additional alternative, may commit the minor to a juvenile home, ranch, camp, or forestry camp, or the county juvenile hall, as specified.

This bill would require begin delete the court, end delete begin insert a minor to complete a sex end insert begin insert offender treatment program end insert when a minor is adjudged begin insert or continued as end insert a ward of the court for begin delete specified reasons, including, among others, end delete the commission of begin delete certain sex offenses accomplished because the person is prevented from resisting due to being rendered unconscious by any intoxicating, anesthetizing, or controlled substance, or when the victim is at the time incapable, because of a disability, of giving consent, and this is known or reasonably should be known to the person committing the offense, to order the minor to out-of-home placement for a minimum of 2 years. The bill would provide that the placement may include commitment of the minor to a juvenile hall, juvenile home, ranch, camp, or any institution operated by a county juvenile probation department, where the minor would receive treatment appropriate to the circumstances of his or her offense, including, but not limited to, sex offender treatment. end delete begin insert specified sex offenses. The bill would require the court to consider certain factors, in addition to any other relevant information presented, in determining what type of sex end insert begin insert offender treatment program is appropriate for the minor. By increasing the duties o end insert begin insert n county officials in implementing the treatment program requirement, this bill would impose a state-mandated local program. end insert

Existing law authorizes deferral of judgment for certain minors who have committed felony offenses if specified criteria are met.

This bill would add to those criteria that the offense charged is not rape, sodomy, oral copulation, or an act of sexual penetration, as specified, when the victim was prevented from resisting due to being rendered unconscious by any intoxicating, anesthetizing, or controlled substance, or when the victim was at the time incapable, because of mental disorder or developmental or physical disability, of giving consent, and that was known or reasonably should have been known to the minor at the time of the offense.

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

begin delete

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 delete begin delete

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

end delete 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

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.

SEC. 2.  

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

290.1.  

(a) A person convicted of a sex offense listed in
subdivision (c) of Section 290 who, with the intent to intimidate,
harass, humiliate, or bully the victim, uses social media, including,
but not limited to, posting photographs online or sharing cellular
telephone photographs 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 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).

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 due to being rendered
unconscious by any intoxicating, anesthetizing, or controlled
substance, or when the victim is at the time incapable, because of
a 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 due
to being rendered unconscious by any intoxicating, anesthetizing,
or controlled substance, or when the victim is at the time incapable,
because of a 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
due to being rendered unconscious by any intoxicating,
anesthetizing, or controlled substance, or when the victim is at the
time incapable, because of a 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.

(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 of the Penal Code, 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 730 of the Welfare and Institutions Code is
amended to read:

730.  

(a) When a minor is adjudged a ward of the court on the
ground that he or she is a person described by Section 602, the
court may order any of the types of treatment referred to in Section
727, and as an additional alternative, may commit the minor to a
juvenile home, ranch, camp, or forestry camp. If there is no county
juvenile home, ranch, camp, or forestry camp within the county,
the court may commit the minor to the county juvenile hall.

(b) When a ward described in subdivision (a) is placed under
the supervision of the probation officer or committed to the care,
custody, and control of the probation officer, the court may make
any and all reasonable orders for the conduct of the ward including
the requirement that the ward go to work and earn money for the
support of his or her dependents or to effect reparation and in either
case that the ward keep an account of his or her earnings and report
the same to the probation officer and apply these earnings as
directed by the court. The court may impose and require any and
all reasonable conditions that it may determine fitting and proper
to the end that justice may be done and the reformation and
rehabilitation of the ward enhanced.

(c) When a ward described in subdivision (a) is placed under
the supervision of the probation officer or committed to the care,
custody, and control of the probation officer, and is required as a
condition of probation to participate in community service or
graffiti cleanup, the court may impose a condition that if the minor
unreasonably fails to attend or unreasonably leaves prior to
completing the assigned daily hours of community service or
graffiti cleanup, a law enforcement officer may take the minor into
custody for the purpose of returning the minor to the site of the
community service or graffiti cleanup.

(d) When a minor is adjudged begin insert or continued as end insert a ward of the
court on the ground that he or she is a person described by Section
602 by reason of the commission of rape, sodomy, oral copulation,
or an act of sexual penetration specified in Section 289 of the Penal
Code, begin delete when the victim was prevented from resisting due to being
rendered unconscious by any intoxicating, anesthetizing, or
controlled substance, or when the victim was at the time incapable,
because of mental disorder or developmental or physical disability,
of giving consent, and that was known or reasonably should have
been known to the minor at the time of the offense, the court shall
order the minor to out-of-home placement for a minimum of two
years, which may include commitment of the minor to a juvenile
hall, juvenile home, ranch, camp, or any institution operated by a
county juvenile probation department, where the minor shall
receive treatment appropriate to the circumstances of his or her
offense, including, but not limited to, sex offender treatment. end delete begin insert the
minor shall complete a sex offender treatment program. In
determining what type of treatment is appropriate, the court shall
consider all of the following: the seriousness and circumstances
of the offense, the vulnerability of the victim, the minor’s criminal
history and prior attempts at rehabilitation, the sophistication of
the minor, the threat to public safety, the minor’s likelihood of
reoffending, and any other relevant information presented. end insert

SEC. 5.  

Section 790 of the Welfare and Institutions Code is
amended to read:

790.  

(a) Notwithstanding Section 654 or 654.2, or any other
provision of law, this article shall apply whenever a case is before
the juvenile court for a determination of whether a minor is a
person described in Section 602 because of the commission of a
felony offense, if all of the following circumstances apply:

(1) The minor has not previously been declared to be a ward of
the court for the commission of a felony offense.

(2) The offense charged is not one of the offenses enumerated
in subdivision (b) of Section 707.

(3) The minor has not previously been committed to the custody
of the begin insert Department of Corrections and Rehabilitation, end insert Division of
Juvenile Facilities.

(4) The minor’s record does not indicate that probation has ever
been revoked without being completed.

(5) The minor is at least 14 years of age at the time of the
hearing.

(6) The minor is eligible for probation pursuant to Section
1203.06 of the Penal Code.

(7) The offense charged is not rape, sodomy, oral copulation,
or an act of sexual penetration specified in Section 289 of the Penal
Code when the victim was prevented from resisting due to being
rendered unconscious by any intoxicating, anesthetizing, or
controlled substance, or when the victim was at the time incapable,
because of mental disorder or developmental or physical disability,
of giving consent, and that was known or reasonably should have
been known to the minor at the time of the offense.

(b) The prosecuting attorney shall review his or her file to
determine whether or not paragraphs (1) to (7), inclusive, of
subdivision (a) apply. If the minor is found eligible for deferred
entry of judgment, the prosecuting attorney shall file a declaration
in writing with the court or state for the record the grounds upon
which the determination is based, and shall make this information
available to the minor and his or her attorney. Upon a finding that
the minor is also suitable for deferred entry of judgment and would
benefit from education, treatment, and rehabilitation efforts, the
court may grant deferred entry of judgment. Under this procedure,
the court may set the hearing for deferred entry of judgment at the
initial appearance under Section 657. The court shall make findings
on the record that a minor is appropriate for deferred entry of
judgment pursuant to this article in any case where deferred entry
of judgment is granted.

begin delete

SEC. 6.  

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.

end delete

begin insert

begin insert SEC. 6. 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