Amended in Assembly April 7, 2016

Amended in Assembly March 30, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2199

Introduced by Assembly Member Campos

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(Coauthor: Assembly Member Lackey)

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February 18, 2016

An act to amend begin delete Sections end delete begin insert Section end insert 261.5 begin delete and 288 of end delete begin insert of, and to add Section 287 to, end insert the Penal Code, relating to sexual offenses.

LEGISLATIVE COUNSEL’S DIGEST

AB 2199, as amended, Campos. Sexual offenses against minors: persons in a position of authority.

(1) Existing law provides various circumstances that constitute rape, which are punishable by imprisonment in the state prison for 3, 6, or 8 years, except as specified.

Existing law also prescribes circumstances that constitute unlawful sexual intercourse, some of which involve an adult perpetrator who engages in that unlawful intercourse with a minor, as specified. Unlawful sexual intercourse under those circumstances is punishable by imprisonment for 2, 3, or 4 years, and also may be subject to designated civil penalties or fines. Under existing law, any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to a specified provision of law for 2, 3, or 4 years.

This bill would subject any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age and is convicted of a felony to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act of unlawful sexual intercourse. By changing the penalty for the commission of unlawful sexual intercourse under the above circumstances, this bill would impose a state-mandated local program.

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(2) Under existing law, any person who willfully and lewdly commits a lewd or lascivious act with a minor under 14 years of age with the intent of arousing the minor is guilty of a felony, punishable by imprisonment in the state prison for 3, 6, or 8 years. Existing law makes it a public offense for a person to commit this act with the intent of arousing a minor of 14 or 15 years of age when the person is at least 10 years older than the minor, punishable by imprisonment in the state prison for one, 2, or 3 years, or by imprisonment in a county jail for no more than one year.

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This bill would subject any person who willfully and lewdly commits a lewd or lascivious act with a minor under 14 years of age with the intent of arousing the minor, or who commits such an act with the intent of arousing a minor of 14 or 15 years of age when the person is at least 10 years older than the minor, to a sentence enhancement of 2 years, if the perpetrator holds a position of authority over the minor with whom he or she engaged in the act. By changing the penalty for the commission of a lewd or lascivious act under the above circumstances, this bill would impose a state-mandated local program.

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(2) Existing law makes it a crime for a person to engage in specified acts of a sexual nature with a minor, including lewd and lascivious conduct when the victim is a child of 14 or 15 years and the person is at least 10 years older, and sodomy, oral copulation, or digital penetration of a minor under 16 years of age when the person is 21 years of age or older.

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This bill would impose an additional term of 2 years when a person who is convicted of a felony violation of the above crimes is a person in a position of authority, as defined. By increasing the penalty for a crime, this bill would impose a state-mandated local program.

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(3) 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 1.  

Section 261.5 of the Penal Code is amended to
read:

261.5.  

(a) Unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse of
the perpetrator, if the person is a minor. For the purposes of this
section, a “minor” is a person under 18 years of age and an “adult”
is a person who is at least 18 years of age.

(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years older
or three years younger than the perpetrator, is guilty of a
misdemeanor.

(c) Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger
than the perpetrator is guilty of either a misdemeanor or a felony,
and shall be punished by imprisonment in a county jail not
exceeding one year, or by imprisonment pursuant to subdivision
(h) of Section 1170.

(d) Any person 21 years of age or older who engages in an act
of unlawful sexual intercourse with a minor who is under 16 years
of age is guilty of either a misdemeanor or a felony, and shall be
punished by imprisonment in a county jail not exceeding one year,
or by imprisonment pursuant to subdivision (h) of Section 1170
for two, three, or four years.

(e) Notwithstanding any other provision of this section, a person
who is guilty of a felony pursuant to subdivision (d) who holds a
position of authority over the minor with whom he or she has
engaged in an act of unlawful sexual intercourse, shall be punished
by an additional term of imprisonment in a county jail for two
years.

(1) For purposes of this subdivision, a person is in a “position
of authority” if he or she, by reason of that position, is able to
exercise undue influence over a minor. A “position of authority”
includes, but is not limited to, a stepparent, foster parent, partner
of the parent, caretaker, youth leader, recreational director, athletic
manager, coach, teacher, counselor, therapist, religious leader,
doctor, employer, or employee of one of those aforementioned
persons.

(2) For purposes of this subdivision, “undue influence” has the
same meaning as that term is defined in Section 15610.70 of the
Welfare and Institutions Code.

(f) (1) Notwithstanding any other provision of this section, an
adult who engages in an act of sexual intercourse with a minor in
violation of this section may be liable for civil penalties in the
following amounts:

(A) An adult who engages in an act of unlawful sexual
intercourse with a minor less than two years younger than the adult
is liable for a civil penalty not to exceed two thousand dollars
($2,000).

(B) An adult who engages in an act of unlawful sexual
intercourse with a minor at least two years younger than the adult
is liable for a civil penalty not to exceed five thousand dollars
($5,000).

(C) An adult who engages in an act of unlawful sexual
intercourse with a minor at least three years younger than the adult
is liable for a civil penalty not to exceed ten thousand dollars
($10,000).

(D) An adult over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor under 16 years of age is
liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).

(2) The district attorney may bring actions to recover civil
penalties pursuant to this subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action
shall be deposited with the treasurer of the county in which the
judgment was entered, and the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which is hereby created in
the State Treasury. Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the purpose of preventing
underage pregnancy upon appropriation by the Legislature.

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

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SEC. 2.  

Section 288 of the Penal Code is amended to read:

288.  

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

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

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

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

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

(3) Any person who is guilty of a felony pursuant to subdivision
(a) or is guilty of a public offense pursuant to paragraph (1), and
who holds a position of authority over the minor with whom he
or she has engaged in an act of unlawful sexual intercourse, shall
be punished by an additional term of imprisonment for two years.

(A) For purposes of this paragraph, a person is in a “position
of authority” if he or she, by reason of that position, is able to
exercise undue influence over a minor. A “position of authority”
includes, but is not limited to, a stepparent, foster parent, partner
of the parent, youth leader, recreational director, athletic manager,
coach, teacher, counselor, therapist, religious leader, doctor,
employer, or employee of one of those aforementioned persons.

(B) For purposes of this paragraph, “undue influence” has the
same meaning as that term is defined in Section 15610.70 of the
Welfare and Institutions Code.

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

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

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

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

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

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

(B) Clinics.

(C) Home health agencies.

(D) Adult day health care centers.

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

(F) Sheltered workshops.

(G) Camps.

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

(I) Respite care facilities.

(J) Foster homes.

(K) Regional centers for persons with developmental disabilities.

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

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

(N) Board and care facilities.

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

(P) Private residences.

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

(A) Bathing.

(B) Dressing.

(C) Grooming.

(D) Medication storage.

(E) Medical dispensation.

(F) Money management.

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

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

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

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

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

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

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begin insert SEC. 2. end insert   

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begin insert Section 287 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

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begin insert 287. end insert   

(a) A person who is guilty of a felony violation of
paragraph (2) of subdivision (b) of Section 286, paragraph (1) of
subdivision (c) of Section 288, paragraph (2) of subdivision (b) of
Section 288a, or subdivision (h) of Section 289, and who holds a
position of authority over the minor victim, shall be punished by
an additional term of imprisonment for two years.

(b) For purposes of this section, a person is in a “position of
authority” if he or she, by reason of that position, is able to
exercise undue influence over a minor. A “position of authority”
includes, but is not limited to, a stepparent, foster parent, partner
of the parent, youth leader, recreational director, athletic manager,
coach, teacher, counselor, therapist, religious leader, doctor,
employer, or employee of one of those aforementioned persons.

(c) For purposes of this section, “undue influence” has the same
meaning as that term is defined in Section 15610.70 of the Welfare
and Institutions Code.

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SEC. 3.  

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.