AB 962, as introduced, Maienschein. Sex offenses: disabled victims.
(1) Existing law, as amended by Proposition 83, the Sexual Predator Punishment and Control Act (Jessica’s Law), approved by the voters at the November 7, 2006, statewide general election, makes a defendant punisable by imprisonment in the state prison for 25 years to life if convicted of certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, among other things, in the commission of that offense, any person kidnapped the victim, tortured the victim, or committed the offense during the commission of a burglary, as specified. Existing law also makes a defendant punishable by imprisonment in the state prison for 15 years to life if convicted of certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, among other things, in the commission of that offense any person, except as specified in the provisions above, kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense. Proposition 83 provides that the Legislature may amend the provisions of the act to expand the scope of their application or increase the punishment or penalties by a statute passed by a majority vote of each house of the Legislature.
This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions, if the victim is developmentally disabled, as defined. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(2) Existing law makes a defendant punishable by imprisonment in the state prison for 25 years to life if convicted of certain crimes, including rape, spousal rape or sexual penetration in concert, sexual penetration, sodomy, or oral copulation if certain circumstances were present, including, among other things, in the commission of that offense any person kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense, or under other specified circumstances, and the crime was committed against a minor 14 years of age or older.
This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions, if the victim is developmentally disabled, as defined. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(3) Existing law requires that a person who commits certain enumerated crimes, including rape, sodomy, oral copulation, and sexual penetration, against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under 14 years of age, receive a one-year sentence enhancement and requires that any person having a prior conviction for any of the enumerated offenses receive a 2-year sentence enhancement.
This bill would add to the enumerated list of crimes rape, sodomy, oral copulation, and sexual penetration, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(4) 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: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 667.61 of the Penal Code is amended to
2read:
(a) Except as provided in subdivision (j), (l), or (m),
4any person who is convicted of an offense specified in subdivision
5(c) under one or more of the circumstances specified in subdivision
6(d) or under two or more of the circumstances specified in
7subdivision (e) shall be punished by imprisonment in the state
8prison for 25 years to life.
9(b) Except as provided in subdivision (a), (j), (l), or (m), any
10person who is convicted of an offense specified in subdivision (c)
11under one of the circumstances specified in subdivision (e) shall
12be punished by imprisonment in the state prison for 15 years to
13life.
14(c) This section shall apply to any of the following offenses:
15(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
16of Section 261.
17(2) Spousal rape, in violation of paragraph (1) or (4) of
18subdivision (a) of Section 262.
19(3) Rape, spousal rape, or sexual penetration, in concert, in
20violation of Section 264.1.
21(4) Lewd or lascivious act, in violation of subdivision (b) of
22Section 288.
23(5) Sexual penetration, in violation of subdivision (a) of Section
24289.
25(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
26(c), or subdivision (d), of Section 286.
P4 1(7) Oral copulation, in violation of paragraph (2) or
(3) of
2subdivision (c), or subdivision (d), of Section 288a.
3(8) Lewd or lascivious act, in violation of subdivision (a) of
4Section 288.
5(9) Continuous sexual abuse of abegin delete child,end deletebegin insert
childend insert in violation of
6Section 288.5.
7(10) Rape in violation of paragraph (1) of subdivision (a) of
8Section 261, if the victim was “developmentally disabled,” as
9defined in subdivision (d) of Section 667.9, and that fact is alleged
10in the accusatory pleading and either admitted by the defendant
11in open court or found to be true by the trier of fact.
12(11) Sexual penetration, in violation of subdivision (b) of Section
13289, if the victim was “developmentally disabled,” as defined in
14subdivision (d) of Section 667.9, and that fact is alleged in the
15accusatory pleading and either admitted by the defendant in open
16court or found to be true by the trier of fact.
17(12) Sodomy, in violation of subdivision (g) of Section 286, if
18the victim was “developmentally disabled,” as defined in
19subdivision (d) of Section 667.9, and that fact is alleged in the
20accusatory pleading and either admitted by the defendant in open
21court or found to be true by the trier of fact.
22(13) Oral copulation, in violation of subdivision (g) of Section
23288a, if the victim was “developmentally disabled,” as defined in
24subdivision (d) of Section 667.9, and that fact is alleged in the
25accusatory pleading and either admitted by the defendant in open
26court or found to be true by the trier of fact.
27(d) The following circumstances shall apply to the offenses
28specified in subdivision (c):
29(1) The defendant has been previously convicted of an offense
30specified in subdivision (c), including an offense committed in
31another jurisdiction that includes all of the elements of an offense
32specified in subdivision (c).
33(2) The defendant kidnapped the victim of the present offense
34and the movement of the victim substantially increased the risk of
35harm to the victim over and above that level of risk necessarily
36inherent in the underlying offense in subdivision (c).
37(3) The defendant inflicted aggravated mayhem or torture on
38the victim or another person in the commission of the present
39offense in violation of Section 205 or 206.
P5 1(4) The defendant committed the present offense during the
2commission of a burglary of the first degree, as defined in
3
subdivision (a) of Section 460, with intent to commit an offense
4specified in subdivision (c).
5(5) The defendant committed the present offense in violation
6of Section 264.1, subdivision (d) of Section 286, or subdivision
7(d) of Section 288a, and, in the commission of that offense, any
8person committed any act described in paragraph (2), (3), or (4)
9of this subdivision.
10(6) The defendant personally inflicted great bodily injury on
11the victim or another person in the commission of the present
12offense in violation of Section 12022.53, 12022.7, or 12022.8.
13(7) The defendant personally inflicted bodily harm on the victim
14who was under 14 years of age.
15(e) The following circumstances shall apply to the offenses
16specified in subdivision (c):
17(1) Except as provided in paragraph (2) of subdivision (d), the
18defendant kidnapped the victim of the present offense in violation
19of Section 207, 209, or 209.5.
20(2) Except as provided in paragraph (4) of subdivision (d), the
21defendant committed the present offense during the commission
22of a burglary in violation of Section 459.
23(3) The defendant personally used a dangerous or deadly weapon
24or a firearm in the commission of the present offense in violation
25of Section 12022, 12022.3, 12022.5, or 12022.53.
26(4) The defendant has been convicted in the present case or
27cases of committing an offense specified in subdivision (c) against
28more than one victim.
29(5) The defendant engaged in the tying or
binding of the victim
30or another person in the commission of the present offense.
31(6) The defendant administered a controlled substance to the
32victim in the commission of the present offense in violation of
33Section 12022.75.
34(7) The defendant committed the present offense in violation
35of Section 264.1, subdivision (d) of Section 286, or subdivision
36(d) of Section 288a, and, in the commission of that offense, any
37person committed any act described in paragraph (1), (2), (3), (5),
38or (6) of this subdivision or paragraph (6) of subdivision (d).
39(f) If only the minimum number of circumstances specified in
40subdivision (d) or (e) that are required for the punishment provided
P6 1in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
2proved, that circumstance or those circumstances shall be used as
3the basis for
imposing the term provided in subdivision (a), (b),
4(j), (l), or (m) whichever is greater, rather than being used to impose
5the punishment authorized under any other provision of law, unless
6another provision of law provides for a greater penalty or the
7punishment under another provision of law can be imposed in
8addition to the punishment provided by this section. However, if
9any additional circumstance or circumstances specified in
10subdivision (d) or (e) have been pled and proved, the minimum
11number of circumstances shall be used as the basis for imposing
12the term provided in subdivision (a), (j), or (l) and any other
13additional circumstance or circumstances shall be used to impose
14any punishment or enhancement authorized under any other
15provision of law.
16(g) Notwithstanding Section 1385 or any other provision of law,
17the court shall not strike any allegation, admission, or finding of
18any of the circumstances specified in subdivision (d) or
(e) for any
19person who is subject to punishment under this section.
20(h) Notwithstanding any other provision of law, probation shall
21not be granted to, nor shall the execution or imposition of sentence
22be suspended for, any person who is subject to punishment under
23this section.
24(i) For any offense specified in paragraphs (1) to (7), inclusive,
25of subdivision (c), or in paragraphs (1) to (6), inclusive, of
26subdivision (n), the court shall impose a consecutive sentence for
27each offense that results in a conviction under this section if the
28crimes involve separate victims or involve the same victim on
29separate occasionsbegin insert,end insert as defined in subdivision (d) of Section 667.6.
30(j) (1) Any person who
is convicted of an offense specified in
31subdivision (c), with the exception of a violation of subdivision
32(a) of Section 288, upon a victim who is a child under 14 years of
33age under one or more of the circumstances specified in subdivision
34(d) or under two or more of the circumstances specified in
35subdivision (e), shall be punished by imprisonment in the state
36prison for life without the possibility of parole. Where the person
37was under 18 years of age at the time of the offense, the person
38shall be punished by imprisonment in the state prison for 25 years
39to life.
P7 1(2) Any person who is convicted of an offense specified in
2subdivision (c) under one of the circumstances specified in
3subdivision (e), upon a victim who is a child under 14 years of
4age, shall be punished by imprisonment in the state prison for 25
5years to life.
6(k) As used in this section, “bodily harm” means any
substantial
7physical injury resulting from the use of force that is more than
8the force necessary to commit an offense specified in subdivision
9(c).
10(l) Any person who is convicted of an offense specified in
11subdivision (n) under one or more of the circumstances specified
12in subdivision (d) or under two or more of the circumstances
13specified in subdivision (e), upon a victim who is a minor 14 years
14of age or older shall be punished by imprisonment in the state
15prison for life without the possibility of parole. If the person who
16was convicted was under 18 years of age at the time of the offense,
17he or she shall be punished by imprisonment in the state prison
18for 25 years to life.
19(m) Any person who is convicted of an offense specified in
20subdivision (n) under one of the circumstances specified in
21subdivision (e) against a minor 14 years of age or older shall be
22punished by
imprisonment in the state prison for 25 years to life.
23(n) Subdivisions (l) and (m) shall apply to any of the following
24offenses:
25(1) Rape, in violation of paragraph (2) of subdivision (a) of
26Section 261.
27(2) Spousal rape, in violation of paragraph (1) of subdivision
28(a) of Section 262.
29(3) Rape, spousal rape, or sexual penetration, in concert, in
30violation of Section 264.1.
31(4) Sexual penetration, in violation of paragraph (1) of
32subdivision (a) of Section 289.
33(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
34Section 286, or in violation of subdivision (d) of Section 286.
35(6) Oral copulation, in violation of paragraph (2) of subdivision
36(c) of Section 288a, or in violation of subdivision (d) of Section
37288a.
38(7) Rape in violation of paragraph (1) of subdivision (a) of
39Section 261, if the victim was “developmentally disabled,” as
40defined in subdivision (d) of Section 667.9, and that fact is alleged
P8 1in the accusatory pleading and either admitted by the defendant
2in open court or found to be true by the trier of fact.
3(8) Sexual penetration, in violation of subdivision (b) of Section
4289, if the victim was “developmentally disabled,” as defined in
5subdivision (d) of Section 667.9, and that fact is alleged in the
6accusatory pleading and either admitted by the defendant in open
7
court or found to be true by the trier of fact.
8(9) Sodomy, in violation of subdivision (g) of Section 286, if the
9victim was “developmentally disabled,” as defined in subdivision
10(d) of Section 667.9, and that fact is alleged in the accusatory
11pleading and either admitted by the defendant in open court or
12found to be true by the trier of fact.
13(10) Oral copulation, in violation of subdivision (g) of Section
14288a, if the victim was “developmentally disabled,” as defined in
15subdivision (d) of Section 667.9, and that fact is alleged in the
16accusatory pleading and either admitted by the defendant in open
17court or found to be true by the trier of fact.
18(o) The penalties provided in this section shall apply
only if the
19existence of any circumstance specified in subdivision (d) or (e)
20is alleged in the accusatory pleading pursuant to this section, and
21is either admitted by the defendant in open court or found to be
22true by the trier of fact.
Section 667.9 of the Penal Code is amended to read:
(a) Any person who commits one or more of the crimes
25specified in subdivision (c) against a person who is 65 years of
26age or older, or against a person who is blind, deaf,
27developmentally disabled, a paraplegic, or a quadriplegic, or
28against a person who is under the age of 14 years, and that
29disability or condition is known or reasonably should be known
30to the person committing the crime, shall receive a one-year
31enhancement for each violation.
32(b) Any person who commits a violation of subdivision (a) and
33who has a prior conviction for any of the offenses specified in
34subdivision (c), shall receive a two-year enhancement for each
35violation in addition to the sentence provided under Section 667.
36(c) Subdivisions (a) and (b) apply to the following crimes:
37(1) Mayhem, in violation of Section 203 or 205.
38(2) Kidnapping, in violation of Section 207, 209, or 209.5.
39(3) Robbery, in violation of Section 211.
40(4) Carjacking, in violation of Section 215.
P9 1(5) Rape, in violation of paragraphbegin delete (2)end deletebegin insert (1), (2),end insert or (6) of
2subdivision (a) of Section 261.
3(6) Spousal rape, in violation
of paragraph (1) or (4) of
4subdivision (a) of Section 262.
5(7) Rape, spousal rape, or sexual penetration in concert, in
6violation of Section 264.1.
7(8) Sodomy, in violation of paragraph (2) or (3) of subdivision
8(c), or subdivisionbegin delete (d),end deletebegin insert
(d) or (g),end insert of Section 286.
9(9) Oral copulation, in violation of paragraph (2) or (3) of
10subdivision (c), or subdivisionbegin delete (d),end deletebegin insert (d) or (g),end insert of Section 288a.
11(10) Sexual penetration, in violation of subdivision (a)begin insert or (b)end insert
12 of Section 289.
13(11) Burglary of the first degree, as defined in Section 460, in
14violation of Section 459.
15(d) As used in this section, “developmentally disabled” means
16a severe, chronic disability of a
person, which is all of the
17following:
18(1) Attributable to a mental or physical impairment or a
19combination of mental and physical impairments.
20(2) Likely to continue indefinitely.
21(3) Results in substantial functional limitation in three or more
22of the following areas of life activity:
23(A) Self-care.
24(B) Receptive and expressive language.
25(C) Learning.
26(D) Mobility.
27(E) Self-direction.
28(F) Capacity for independent living.
29(G) Economic self-sufficiency.
No reimbursement is required by this act pursuant to
31Section 6 of Article XIII B of the California Constitution because
32the only costs that may be incurred by a local agency or school
33district will be incurred because this act creates a new crime or
34infraction, eliminates a crime or infraction, or changes the penalty
35for a crime or infraction, within the meaning of Section 17556 of
36the Government Code, or changes the definition of a crime within
37the meaning of Section 6 of Article XIII B of the California
38Constitution.
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