Amended in Assembly January 4, 2016

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 733

Introduced by Assembly Member Chávez

February 25, 2015

An act to amend Sections 290, 290.46, and 647 of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

AB 733, as amended, Chávez. Crimes: prostitution.

Existing law provides that a person who solicits or agrees to engage in or engages in any act of prostitution is guilty of disorderly conduct, a misdemeanor, punishable by imprisonment in the county jail for no more than 6 months, by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law provides that if a person solicits a minor, and the person knew or should have known that the person solicited was a minor at the time of the solicitation, the violation is punishable by imprisonment in a county jail for not less than 2 days and not more than one year, or by a fine not exceeding $10,000, or both.

This bill would make the fine for a person convicted of soliciting a minor mandatory and would begin delete fix the amount of the fine at $10,000. end delete begin insert authorize a court to exercise its discretion in setting the amount of the fine, provided that amount is not less than $3,000. end insert This bill would require that a person convicted of soliciting a minor make restitution to the minor that includes the cost of mental health counseling for the minor.

Existing law, the Sex Offender Registration Act, requires persons convicted of specified sex offenses, or attempts to commit those offenses, to register with local law enforcement agencies while residing in the state or while attending school or working in the state. Existing law requires the terms of probation or parole for all persons placed on formal probation or parole for an offense that requires registration as a sex offender to include, among other things, participation in, or completion of, a sex offender management program, as specified. Existing law requires the Department of Justice to make available to the public information concerning registered sex offenders on an Internet Web site, as specified. Existing law also authorizes a person registered as a sex offender to file an application for exclusion for the Internet Web site and establishes the requirements for exclusion.

This bill would require a person who is convicted of soliciting a minor to register as a sex begin delete offender. end delete begin insert offender if the conviction is the person’s second conviction for solicitation of a minor. end insert This bill would require a court that grants probation to or suspends the imposition of a sentence for a person convicted of soliciting a minor to require participation in a sex offender management program as a condition of probation or the suspension of imposition of the person’s sentence. This bill would require the department to make available to the public specified information regarding the person on that Internet Web site. This bill would authorize the person to apply for exclusion from the Internet Web site described above if the person has satisfied all conditions of probation or suspension of imposition of his or her sentence and has not been convicted of any other offense requiring registration as a sex offender in a 5-year period following satisfaction of those conditions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

SECTION 1.  

Section 290 of the Penal Code is amended to
read:

290.  

(a) Sections 290 to 290.024, inclusive, shall be known
and may be cited as the Sex Offender Registration Act. All
references to “the Act” in those sections are to the Sex Offender
Registration Act.

(b) Every person described in subdivision (c), for the rest of his
or her life while residing in California, or while attending school
or working in California, as described in Sections 290.002 and
290.01, shall be required to register with the chief of police of the
city in which he or she is residing, or the sheriff of the county if
he or she is residing in an unincorporated area or city that has no
police department, and, additionally, with the chief of police of a
campus of the University of California, the California State
University, or community college if he or she is residing upon the
campus or in any of its facilities, within five working days of
coming into, or changing his or her residence within, any city,
county, or city and county, or campus in which he or she
temporarily resides, and shall be required to register thereafter in
accordance with the Act.

(c) The following persons shall be required to register:

Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military
court of a violation of Section 187 committed in the perpetration,
or an attempt to perpetrate, rape or any act punishable under
Section 286, 288, 288a, or 289, Section 207 or 209 committed
with intent to violate Section 261, 286, 288, 288a, or 289, Section
220, except assault to commit mayhem, subdivision (b) and (c) of
Section 236.1, Section 243.4, paragraph (1), (2), (3), (4), or (6) of
subdivision (a) of Section 261, paragraph (1) of subdivision (a) of
Section 262 involving the use of force or violence for which the
person is sentenced to the state prison, Section 264.1, 266, or 266c,
subdivision (b) of Section 266h, subdivision (b) of Section 266i,
Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5,
288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2,
Section 311.3, 311.4, 311.10, 311.11, or 647.6, subdivision (b) of
Section 647, if the person convicted solicited a minor and knew
or should have known that the person solicited was a minor at the
time of the begin delete offense, end delete begin insert offense and the conviction is the person’s
second conviction of that offense, end insert former Section 647a, subdivision
(c) of Section 653f, subdivision 1 or 2 of Section 314, any offense
involving lewd or lascivious conduct under Section 272, or any
felony violation of Section 288.2; any statutory predecessor that
includes all elements of one of the above-mentioned offenses; or
any person who since that date has been or is hereafter convicted
of the attempt or conspiracy to commit any of the above-mentioned
offenses.

SEC. 2.  

Section 290.46 of the Penal Code is amended to read:

290.46.  

(a) (1) On or before the dates specified in this section,
the Department of Justice shall make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in this
section. The department shall update the Internet Web site on an
ongoing basis. All information identifying the victim by name,
birth date, address, or relationship to the registrant shall be
excluded from the Internet Web site. The name or address of the
person’s employer and the listed person’s criminal history other
than the specific crimes for which the person is required to register
shall not be included on the Internet Web site. The Internet Web
site shall be translated into languages other than English as
determined by the department.

(2) (A) On or before July 1, 2010, the Department of Justice
shall make available to the public, via an Internet Web site as
specified in this section, as to any person described in subdivision
(b), (c), or (d), the following information:

(i) The year of conviction of his or her most recent offense
requiring registration pursuant to Section 290.

(ii) The year he or she was released from incarceration for that
offense.

(iii) Whether he or she was subsequently incarcerated for any
other felony, if that fact is reported to the department. If the
department has no information about a subsequent incarceration
for any felony, that fact shall be noted on the Internet Web site.

However, no year of conviction shall be made available to the
public unless the department also is able to make available the
corresponding year of release of incarceration for that offense, and
the required notation regarding any subsequent felony.

(B) (i) Any state facility that releases from incarceration a
person who was incarcerated because of a crime for which he or
she is required to register as a sex offender pursuant to Section
290 shall, within 30 days of release, provide the year of release
for his or her most recent offense requiring registration to the
Department of Justice in a manner and format approved by the
department.

(ii) Any state facility that releases a person who is required to
register pursuant to Section 290 from incarceration whose
incarceration was for a felony committed subsequently to the
offense for which he or she is required to register shall, within 30
days of release, advise the Department of Justice of that fact.

(iii) Any state facility that, prior to January 1, 2007, released
from incarceration a person who was incarcerated because of a
crime for which he or she is required to register as a sex offender
pursuant to Section 290 shall provide the year of release for his or
her most recent offense requiring registration to the Department
of Justice in a manner and format approved by the department.
The information provided by the Department of Corrections and
Rehabilitation shall be limited to information that is currently
maintained in an electronic format.

(iv) Any state facility that, prior to January 1, 2007, released a
person who is required to register pursuant to Section 290 from
incarceration whose incarceration was for a felony committed
subsequently to the offense for which he or she is required to
register shall advise the Department of Justice of that fact in a
manner and format approved by the department. The information
provided by the Department of Corrections and Rehabilitation
shall be limited to information that is currently maintained in an
electronic format.

(3) The State Department of State Hospitals shall provide to the
Department of Justice Sex Offender Tracking Program the names
of all persons committed to its custody pursuant to Article 4
(commencing with Section 6600) of Chapter 2 of Part 2 of Division
6 of the Welfare and Institutions Code, within 30 days of
commitment, and shall provide the names of all of those persons
released from its custody within five working days of release.

(b) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission
of any of the offenses listed in, or who is described in, paragraph
(2), the Department of Justice shall make available to the public
via the Internet Web site his or her name and known aliases, a
photograph, a physical description, including gender and race, date
of birth, criminal history, prior adjudication as a sexually violent
predator, the address at which the person resides, and any other
information that the Department of Justice deems relevant, but not
the information excluded pursuant to subdivision (a). On or before
January 1, 2013, the department shall make available to the public
via the Internet Web site his or her static SARATSO score and
information on an elevated risk level based on the SARATSO
future violence tool.

(2) This subdivision shall apply to the following offenses and
offenders:

(A) Section 187 committed in the perpetration, or an attempt to
perpetrate, rape or any act punishable under Section 286, 288,
288a, or 289.

(B) Section 207 committed with intent to violate Section 261,
286, 288, 288a, or 289.

(C) Section 209 committed with intent to violate Section 261,
286, 288, 288a, or 289.

(D) Paragraph (2) or (6) of subdivision (a) of Section 261.

(E) Section 264.1.

(F) Section 269.

(G) Subdivision (c) or (d) of Section 286.

(H) Subdivision (a), (b), or (c) of Section 288, provided that the
offense is a felony.

(I) Subdivision (c) or (d) of Section 288a.

(J) Section 288.3, provided that the offense is a felony.

(K) Section 288.4, provided that the offense is a felony.

(L) Section 288.5.

(M) Subdivision (a) or (j) of Section 289.

(N) Section 288.7.

(O) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code.

(P) A felony violation of Section 311.1.

(Q) A felony violation of subdivision (b), (c), or (d) of Section
311.2.

(R) A felony violation of Section 311.3.

(S) A felony violation of subdivision (a), (b), or (c) of Section
311.4.

(T) Section 311.10.

(U) A felony violation of Section 311.11.

(c) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission
of any of the offenses listed in paragraph (2), the Department of
Justice shall make available to the public via the Internet Web site
his or her name and known aliases, a photograph, a physical
description, including gender and race, date of birth, criminal
history, the community of residence and ZIP Code in which the
person resides or the county in which the person is registered as a
transient, and any other information that the Department of Justice
deems relevant, but not the information excluded pursuant to
subdivision (a). On or before July 1, 2006, the Department of
Justice shall determine whether any person convicted of an offense
listed in paragraph (2) also has one or more prior or subsequent
convictions of an offense listed in subdivision (c) of Section 290,
and, for those persons, the Department of Justice shall make
available to the public via the Internet Web site the address at
which the person resides. However, the address at which the person
resides shall not be disclosed until a determination is made that
the person is, by virtue of his or her additional prior or subsequent
conviction of an offense listed in subdivision (c) of Section 290,
subject to this subdivision.

(2) This subdivision shall apply to the following offenses:

(A) Section 220, except assault to commit mayhem.

(B) Paragraph (1), (3), or (4) of subdivision (a) of Section 261.

(C) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 286.

(D) Paragraph (2) of subdivision (b), or subdivision (f), (g), or
(i), of Section 288a.

(E) Subdivision (b), (d), (e), or (i) of Section 289.

(F) Subdivision (b) of Section 647, if the person convicted
solicited a minor and knew or should have known that the person
solicited was a minor at the time of the offense.

(d) (1) On or before July 1, 2005, with respect to a person who
has been convicted of the commission or the attempted commission
of any of the offenses listed in, or who is described in, this
subdivision, the Department of Justice shall make available to the
public via the Internet Web site his or her name and known aliases,
a photograph, a physical description, including gender and race,
date of birth, criminal history, the community of residence and
ZIP Code in which the person resides or the county in which the
person is registered as a transient, and any other information that
the Department of Justice deems relevant, but not the information
excluded pursuant to subdivision (a) or the address at which the
person resides.

(2) This subdivision shall apply to the following offenses and
offenders:

(A) Subdivision (a) of Section 243.4, provided that the offense
is a felony.

(B) Section 266, provided that the offense is a felony.

(C) Section 266c, provided that the offense is a felony.

(D) Section 266j.

(E) Section 267.

(F) Subdivision (c) of Section 288, provided that the offense is
a misdemeanor.

(G) Section 288.3, provided that the offense is a misdemeanor.

(H) Section 288.4, provided that the offense is a misdemeanor.

(I) Section 626.81.

(J) Section 647.6.

(K) Section 653c.

(L) Any person required to register pursuant to Section 290
based upon an out-of-state conviction, unless that person is
excluded from the Internet Web site pursuant to subdivision (e).
However, if the Department of Justice has determined that the
out-of-state crime, if committed or attempted in this state, would
have been punishable in this state as a crime described in
subdivision (c) of Section 290, the person shall be placed on the
Internet Web site as provided in subdivision (b) or (c), as applicable
to the crime.

(e) (1) If a person has been convicted of the commission or the
attempted commission of any of the offenses listed in this
subdivision, and he or she has been convicted of no other offense
listed in subdivision (b), (c), or (d) other than those listed in this
subdivision, that person may file an application with the
Department of Justice, on a form approved by the department, for
exclusion from the Internet Web site. If the department determines
that the person meets the requirements of this subdivision, the
department shall grant the exclusion and no information concerning
the person shall be made available via the Internet Web site
described in this section. He or she bears the burden of proving
the facts that make him or her eligible for exclusion from the
Internet Web site. However, a person who has filed for or been
granted an exclusion from the Internet Web site is not relieved of
his or her duty to register as a sex offender pursuant to Section
290 nor from any otherwise applicable provision of law.

(2) This subdivision shall apply to the following offenses:

(A) A felony violation of subdivision (a) of Section 243.4.

(B) Section 647.6, if the offense is a misdemeanor.

(C) A felony violation of Section 311.1, subdivision (b), (c), or
(d) of Section 311.2, or Section 311.3, 311.4, 311.10, or 311.11 if
the person submits to the department a certified copy of a probation
report filed in court that clearly states that all victims involved in
the commission of the offense were at least 16 years of age or older
at the time of the commission of the offense.

(D) (i) An offense for which the offender successfully
completed probation, provided that the offender submits to the
department a certified copy of a probation report, presentencing
report, report prepared pursuant to Section 288.1, or other official
court document that clearly demonstrates that the offender was
the victim’s parent, stepparent, sibling, or grandparent and that the
crime did not involve either oral copulation or penetration of the
vagina or rectum of either the victim or the offender by the penis
of the other or by any foreign object.

(ii) An offense for which the offender is on probation at the
time of his or her application, provided that the offender submits
to the department a certified copy of a probation report,
presentencing report, report prepared pursuant to Section 288.1,
or other official court document that clearly demonstrates that the
offender was the victim’s parent, stepparent, sibling, or grandparent
and that the crime did not involve either oral copulation or
penetration of the vagina or rectum of either the victim or the
offender by the penis of the other or by any foreign object.

(iii) If, subsequent to his or her application, the offender commits
a violation of probation resulting in his or her incarceration in
county jail or state prison, his or her exclusion, or application for
exclusion, from the Internet Web site shall be terminated.

(iv) For the purposes of this subparagraph, “successfully
completed probation” means that during the period of probation
the offender neither received additional county jail or state prison
time for a violation of probation nor was convicted of another
offense resulting in a sentence to county jail or state prison.

(E) A violation of subdivision (b) of Section 647, if the offender
solicited a minor and knew or should have known that the person
solicited was a minor at the time of the offense, if the offender
satisfies one of the following:

(i) The offender submits to the department a certified copy of
a probation report that clearly demonstrates that the offender
satisfied all conditions of probation, and the offender has not been
convicted of a crime that requires registration as a sex offender
pursuant to Section 290 in the five-year period following
satisfaction of all conditions of probation.

(ii) The offender submits to the department a certified copy of
a document from the court that suspended the imposition of the
sentence for the violation that clearly demonstrates that the offender
satisfied all conditions for the suspension of imposition of the
sentence, and the offender has not been convicted of a crime that
requires registration as a sex offender pursuant to Section 290 in
the five-year period following satisfaction of all conditions of
suspension of imposition of the sentence.

(3) If the department determines that a person who was granted
an exclusion under a former version of this subdivision would not
qualify for an exclusion under the current version of this
subdivision, the department shall rescind the exclusion, make a
reasonable effort to provide notification to the person that the
exclusion has been rescinded, and, no sooner than 30 days after
notification is attempted, make information about the offender
available to the public on the Internet Web site as provided in this
section.

(4) Effective January 1, 2012, no person shall be excluded
pursuant to this subdivision unless the offender has submitted to
the department documentation sufficient for the department to
determine that he or she has a SARATSO risk level of low or
moderate-low.

(f) The Department of Justice shall make a reasonable effort to
provide notification to persons who have been convicted of the
commission or attempted commission of an offense specified in
subdivision (b), (c), or (d), that on or before July 1, 2005, the
department is required to make information about specified sex
offenders available to the public via an Internet Web site as
specified in this section. The Department of Justice shall also make
a reasonable effort to provide notice that some offenders are
eligible to apply for exclusion from the Internet Web site.

(g) (1) A designated law enforcement entity, as defined in
subdivision (f) of Section 290.45, may make available information
concerning persons who are required to register pursuant to Section
290 to the public via an Internet Web site as specified in paragraph
(2).

(2) The law enforcement entity may make available by way of
an Internet Web site the information described in subdivision (c)
if it determines that the public disclosure of the information about
a specific offender by way of the entity’s Internet Web site is
necessary to ensure the public safety based upon information
available to the entity concerning that specific offender.

(3) The information that may be provided pursuant to this
subdivision may include the information specified in subdivision
(b) of Section 290.45. However, that offender’s address may not
be disclosed unless he or she is a person whose address is on the
Department of Justice’s Internet Web site pursuant to subdivision
(b) or (c).

(h) For purposes of this section, “offense” includes the statutory
predecessors of that offense, or any offense committed in another
jurisdiction that, if committed or attempted to be committed in this
state, would have been punishable in this state as an offense listed
in subdivision (c) of Section 290.

(i) Notwithstanding Section 6254.5 of the Government Code,
disclosure of information pursuant to this section is not a waiver
of exemptions under Chapter 3.5 (commencing with Section 6250)
of Title 1 of Division 7 of the Government Code and does not
affect other statutory restrictions on disclosure in other situations.

(j) (1) Any person who uses information disclosed pursuant to
this section to commit a misdemeanor shall be subject to, in
addition to any other penalty or fine imposed, a fine of not less
than ten thousand dollars ($10,000) and not more than fifty
thousand dollars ($50,000).

(2) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment pursuant to subdivision (h) of Section 1170.

(k) Any person who is required to register pursuant to Section
290 who enters an Internet Web site established pursuant to this
section shall be punished by a fine not exceeding one thousand
dollars ($1,000), imprisonment in a county jail for a period not to
exceed six months, or by both that fine and imprisonment.

(l) (1) A person is authorized to use information disclosed
pursuant to this section only to protect a person at risk.

(2) Except as authorized under paragraph (1) or any other
provision of law, use of any information that is disclosed pursuant
to this section for purposes relating to any of the following is
prohibited:

(A) Health insurance.

(B) Insurance.

(C) Loans.

(D) Credit.

(E) Employment.

(F) Education, scholarships, or fellowships.

(G) Housing or accommodations.

(H) Benefits, privileges, or services provided by any business
establishment.

(3) This section shall not affect authorized access to, or use of,
information pursuant to, among other provisions, Sections 11105
and 11105.3, Section 8808 of the Family Code, Sections 777.5
and 14409.2 of the Financial Code, Sections 1522.01 and 1596.871
of the Health and Safety Code, and Section 432.7 of the Labor
Code.

(4) (A) Any use of information disclosed pursuant to this section
for purposes other than those provided by paragraph (1) or in
violation of paragraph (2) shall make the user liable for the actual
damages, and any amount that may be determined by a jury or a
court sitting without a jury, not exceeding three times the amount
of actual damage, and not less than two hundred fifty dollars
($250), and attorney’s fees, exemplary damages, or a civil penalty
not exceeding twenty-five thousand dollars ($25,000).

(B) Whenever there is reasonable cause to believe that any
person or group of persons is engaged in a pattern or practice of
misuse of the information available via an Internet Web site
established pursuant to this section in violation of paragraph (2),
the Attorney General, any district attorney, or city attorney, or any
person aggrieved by the misuse is authorized to bring a civil action
in the appropriate court requesting preventive relief, including an
application for a permanent or temporary injunction, restraining
order, or other order against the person or group of persons
responsible for the pattern or practice of misuse. The foregoing
remedies shall be independent of any other remedies or procedures
that may be available to an aggrieved party under other provisions
of law, including Part 2 (commencing with Section 43) of Division
1 of the Civil Code.

(m) The public notification provisions of this section are
applicable to every person described in this section, without regard
to when his or her crimes were committed or his or her duty to
register pursuant to Section 290 arose, and to every offense
described in this section, regardless of when it was committed.

(n) A designated law enforcement entity and its employees shall
be immune from liability for good faith conduct under this section.

(o) The Attorney General, in collaboration with local law
enforcement and others knowledgeable about sex offenders, shall
develop strategies to assist members of the public in understanding
and using publicly available information about registered sex
offenders to further public safety. These strategies may include,
but are not limited to, a hotline for community inquiries,
neighborhood and business guidelines for how to respond to
information posted on this Internet Web site, and any other resource
that promotes public education about these offenders.

SEC. 3.  

Section 647 of the Penal Code is amended to read:

647.  

Except as provided in subdivision (l), every person who
commits any of the following acts is guilty of disorderly conduct,
a misdemeanor:

(a) Who solicits anyone to engage in or who engages in lewd
or dissolute conduct in any public place or in any place open to
the public or exposed to public view.

(b) Who solicits or who agrees to engage in or who engages in
any act of prostitution. A person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or she
manifests an acceptance of an offer or solicitation to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution.
No agreement to engage in an act of prostitution shall constitute
a violation of this subdivision unless some act, in addition to the
agreement, is done within this state in furtherance of the
commission of an act of prostitution by the person agreeing to
engage in that act. As used in this subdivision, “prostitution”
includes any lewd act between persons for money or other
consideration.

(c) Who accosts other persons in any public place or in any
place open to the public for the purpose of begging or soliciting
alms.

(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.

(e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.

(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.

(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour
treatment and evaluation of inebriates. A peace officer may place
a person in civil protective custody with that kind and degree of
force which would be lawful were he or she effecting an arrest for
a misdemeanor without a warrant. A person who has been placed
in civil protective custody shall not thereafter be subject to any
criminal prosecution or juvenile court proceeding based on the
facts giving rise to this placement. This subdivision shall not apply
to the following persons:

(1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.

(2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor
in addition to subdivision (f).

(3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.

(h) Who loiters, prowls, or wanders upon the private property
of another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, “loiter” means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.

(i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of
any inhabited building or structure, without visible or lawful
business with the owner or occupant.

(j) (1) Any person who looks through a hole or opening, into,
or otherwise views, by means of any instrumentality, including,
but not limited to, a periscope, telescope, binoculars, camera,
motion picture camera, camcorder, or mobile phone, the interior
of a bedroom, bathroom, changing room, fitting room, dressing
room, or tanning booth, or the interior of any other area in which
the occupant has a reasonable expectation of privacy, with the
intent to invade the privacy of a person or persons inside. This
subdivision shall not apply to those areas of a private business
used to count currency or other negotiable instruments.

(2) Any 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 under or through the clothing being worn by
that other person, 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, with the intent to arouse, appeal
to, or gratify the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances in
which the other person has a reasonable expectation of privacy.

(3) (A) Any 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 the interior of a bedroom, bathroom, changing
room, fitting room, dressing room, or tanning booth, or the interior
of any other area in which that other person has a reasonable
expectation of privacy, with the intent to invade the privacy of that
other person.

(B) Neither of the following is a defense to the crime specified
in this paragraph:

(i) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.

(ii) The victim was not in a state of full or partial undress.

(4) (A) Any person who intentionally distributes the image of
the intimate body part or parts of another identifiable person, or
an image of the person depicted engaged in an act of sexual
intercourse, sodomy, oral copulation, sexual penetration, or an
image of masturbation by the person depicted or in which the
person depicted participates, under circumstances in which the
persons agree or understand that the image shall remain private,
the person distributing the image knows or should know that
distribution of the image will cause serious emotional distress, and
the person depicted suffers that distress.

(B) A person intentionally distributes an image described in
subparagraph (A) when he or she personally distributes the image,
or arranges, specifically requests, or intentionally causes another
person to distribute that image.

(C) As used in this paragraph, “intimate body part” means any
portion of the genitals, the begin delete anus and end delete begin insert anus, and, end insert in the case of a
female, also includes any portion of the breasts below the top of
the areola, that is either uncovered or clearly visible through
clothing.

(D) It shall not be a violation of this paragraph to distribute an
image described in subparagraph (A) if any of the following
applies:

(i) The distribution is made in the course of reporting an
unlawful activity.

(ii) The distribution is made in compliance with a subpoena or
other court order for use in a legal proceeding.

(iii) The distribution is made in the course of a lawful public
proceeding.

(5) This subdivision shall not preclude punishment under any
section of law providing for greater punishment.

(k) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been once previously convicted
of a violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court, upon
a court trial, or is admitted by the defendant, the defendant shall
be imprisoned in a county jail for a period of not less than 45 days
and shall not be eligible for release upon completion of sentence,
on probation, on parole, on work furlough or work release, or on
any other basis until he or she has served a period of not less than
45 days in a county jail. In all cases in which probation is granted,
the court shall require as a condition thereof that the person be
confined in a county jail for at least 45 days. In no event does the
court have the power to absolve a person who violates this
subdivision from the obligation of spending at least 45 days in
confinement in a county jail.

In any accusatory pleading charging a violation of subdivision
(b), if the defendant has been previously convicted two or more
times of a violation of that subdivision, each of these previous
convictions shall be charged in the accusatory pleading. If two or
more of these previous convictions are found to be true by the jury,
upon a jury trial, or by the court, upon a court trial, or are admitted
by the defendant, the defendant shall be imprisoned in a county
jail for a period of not less than 90 days and shall not be eligible
for release upon completion of sentence, on probation, on parole,
on work furlough or work release, or on any other basis until he
or she has served a period of not less than 90 days in a county jail.
In all cases in which probation is granted, the court shall require
as a condition thereof that the person be confined in a county jail
for at least 90 days. In no event does the court have the power to
absolve a person who violates this subdivision from the obligation
of spending at least 90 days in confinement in a county jail.

In addition to any punishment prescribed by this section, a court
may suspend, for not more than 30 days, the privilege of the person
to operate a motor vehicle pursuant to Section 13201.5 of the
Vehicle Code for any violation of subdivision (b) that was
committed within 1,000 feet of a private residence and with the
use of a vehicle. In lieu of the suspension, the court may order a
person’s privilege to operate a motor vehicle restricted, for not
more than six months, to necessary travel to and from the person’s
place of employment or education. If driving a motor vehicle is
necessary to perform the duties of the person’s employment, the
court may also allow the person to drive in that person’s scope of
employment.

(l) (1) A second or subsequent violation of subdivision (j) is
punishable by imprisonment in a county jail not exceeding one
year, or by a fine not exceeding two thousand dollars ($2,000), or
by both that fine and imprisonment.

(2) If the victim of a violation of subdivision (j) was a minor at
the time of the offense, the violation is punishable by imprisonment
in a county jail not exceeding one year, or by a fine not exceeding
two thousand dollars ($2,000), or by both that fine and
imprisonment.

(m) (1) If a crime is committed in violation of subdivision (b)
and the person who was solicited was a minor at the time of the
offense, and if the defendant knew or should have known that the
person who was solicited was a minor at the time of the offense,
the violation is punishable by imprisonment in a county jail for
not less than two days and not more than one year, and by a fine
in begin delete the end delete begin insert an end insert amount begin delete of ten thousand dollars ($10,000). end delete begin insert set at the
discretion of the court, provided that the amount is not less than
three thousand dollars ($3,000). end insert

(2) The court may, in unusual cases, when the interests of justice
are best served, reduce or eliminate the mandatory two days of
imprisonment in a county jail required by this subdivision. If the
court reduces or eliminates the mandatory two days’ imprisonment,
the court shall specify the reason on the record.

(3) In addition to the punishments specified in this subdivision,
the court shall require the person convicted of the crime to make
restitution to the person who was solicited pursuant to subdivision
(f) of Section 1202.4. The restitution shall include payment for
mental health counseling for the person solicited. For the purposes
of this subdivision, the person solicited shall be considered the
victim for the purposes of Section 1202.4. A victim awarded
restitution pursuant to this paragraph may not submit a claim
against or recover moneys from the Restitution Fund.

(4) If the court grants probation to, or suspends the imposition
of sentence for, a person convicted of a violation this subdivision,
it shall be a condition of probation or the suspension of the
imposition of the sentence that the person convicted shall
participate in a sex offender management program for the duration
of the probation or the suspended sentence, pursuant to subdivision
(b) of Section 1203.067.