BILL NUMBER: AB 295	AMENDED
	BILL TEXT

	AMENDED IN SENATE   JULY 6, 1995
	AMENDED IN ASSEMBLY   APRIL 17, 1995
	AMENDED IN ASSEMBLY   MARCH 16, 1995

INTRODUCED BY  Assembly Member Baldwin

                        FEBRUARY 7, 1995

   An act to amend Sections 311, 311.3, 311.4, 311.11, 312.3, and
11166 of  , and to add Section 312.6 to,  the Penal Code,
relating to pornography.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 295, as amended, Baldwin.  Pornography.
   (1) Existing law  defines the term "matter" for purposes
of   includes  provisions governing obscene matter
and child pornography.  A violation of these provisions is a crime.

   This bill would exempt from these provisions a person or entity
that solely provides access or connection to or from a facility,
system, or network over which that person or entity has no control,
as provided.  The bill would also exempt from these provisions an
employer, for actions of an employee or agent, as provided.
Additionally, the bill would create as a defense to a prosecution or
civil action pursuant to these provisions that a person has taken
good faith actions to restrict or prevent the transmission of, or
access to, a specified communication.
   (2) Existing law defines the term "matter" for purposes of the
provisions governing obscene matter and child pornography. 
   This bill would expand the definition of the term "matter" to
include, among other things, various types of film and computer
media.  Because the bill would incorporate this expanded definition
into these criminal provisions, it would change the definitions of
various crimes, thereby imposing a state-mandated local program.

   (2)  
   (3)  The Child Abuse and Neglect Reporting Act requires a
commercial film and photographic print processor who has knowledge of
or observes a film, photograph, videotape, negative, or slide
depicting a child under the age of 14 years engaged in an act of
sexual conduct to report the instance of suspected child abuse to a
law enforcement agency.  A violation of this provision is a
misdemeanor.
   This bill would require a commercial film and photographic print
processor who has knowledge of or observes such a depiction of a
child under the age of 18 years engaged in an act of sexual conduct
to make the required report.  By expanding the scope of a crime, the
bill would impose a state-mandated local program.  
  (3)  
  (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.  
   (4)  
   (5)  The bill would provide that it shall become operative
only if AB 1881 of the 1995-96 Regular Session is chaptered and
becomes effective on or before January 1, 1996.
   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 311 of the Penal Code is amended to read:
   311.  As used in this chapter, the following definitions apply:
   (a) "Obscene matter" means matter, taken as a whole, that to the
average person, applying contemporary statewide standards, appeals to
the prurient interest, that, taken as a whole, depicts or describes
sexual conduct in a patently offensive way, and that, taken as a
whole, lacks serious literary, artistic, political, or scientific
value.
   (1) If it appears from the nature of the matter or the
circumstances of its dissemination, distribution, or exhibition that
it is designed for clearly defined deviant sexual groups, the appeal
of the matter shall be judged with reference to its intended
recipient group.
   (2) In prosecutions under this chapter, if circumstances of
production, presentation, sale, dissemination, distribution, or
publicity indicate that matter is being commercially exploited by the
defendant for the sake of its prurient appeal, this evidence is
probative with respect to the nature of the matter and may justify
the conclusion that the matter lacks serious literary, artistic,
political, or scientific value.
   (3) In determining whether the matter taken as a whole lacks
serious literary, artistic, political, or scientific value in
description or representation of those matters, the fact that the
defendant knew that the matter depicts persons under the age of 16
years engaged in sexual conduct, as defined in subdivision (c) of
Section 311.4, is a factor that may be considered in making that
determination.
   (b) "Matter" means any book, magazine, newspaper, or other printed
or written material, or any picture, drawing, photograph, motion
picture, or other pictorial representation, or any statue or other
figure, or any recording, transcription, or mechanical, chemical, or
electrical reproduction, or any other article, equipment, machine, or
material.  "Matter" also means live or recorded telephone messages
if transmitted, disseminated, or distributed as part of a commercial
transaction.  "Matter" also means any representation of information,
data, or image, including, but not limited to, any film, filmstrip,
photograph, negative, slide, photocopy, videotape, video laser disc,
computer hardware, computer software, computer floppy disc, data
storage media, CD-ROM, or computer-generated equipment or any other
computer-generated image or audio representation that contains or
incorporates in any manner, any film, filmstrip, photograph,
negative, slide, photocopy, videotape, or video laser disc.
   (c) "Person" means any individual, partnership, firm, association,
corporation, limited liability company, or other legal entity.
   (d) "Distribute" means transfer possession of, whether with or
without consideration.
   (e) "Knowingly" means being aware of the character of the matter
or live conduct.
   (f) "Exhibit" means show.
   (g) "Obscene live conduct" means any physical human body activity,
whether performed or engaged in alone or with other persons,
including but not limited to singing, speaking, dancing, acting,
simulating, or pantomiming, taken as a whole, that to the average
person, applying contemporary statewide standards appeals to the
prurient interest and is conduct that, taken as a whole, depicts or
describes sexual conduct in a patently offensive way and that, taken
as a whole, lacks serious literary, artistic, political, or
scientific value.
   (1) If it appears from the nature of the conduct or the
circumstances of its production, presentation, or exhibition that it
is designed for clearly defined deviant sexual groups, the appeal of
the conduct shall be judged with reference to its intended recipient
group.
   (2) In prosecutions under this chapter, if circumstances of
production, presentation, advertising, or exhibition indicate that
live conduct is being commercially exploited by the defendant for the
sake of its prurient appeal, that evidence is probative with respect
to the nature of the conduct and may justify the conclusion that the
conduct lacks serious literary, artistic, political, or scientific
value.
   (3) In determining whether the live conduct taken as a whole lacks
serious literary, artistic, political, or scientific value in
description or representation of those matters, the fact that the
defendant knew that the live conduct depicts persons under the age of
16 years engaged in sexual conduct, as defined in subdivision (c) of
Section 311.4, is a factor that may be considered in making that
determination.
  SEC. 2.  Section 311.3 of the Penal Code is amended to read:
   311.3.  (a) A person is guilty of sexual exploitation of a child
if he or she knowingly develops, duplicates, prints, or exchanges any
matter, as defined in subdivision (b) of Section 311, that depicts a
person under the age of 18 years engaged in an act of sexual
conduct.
   (b) As used in this section, "sexual conduct" means any of the
following:
   (1) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
   (2) Penetration of the vagina or rectum by any object.
   (3) Masturbation, for the purpose of sexual stimulation of the
viewer.
   (4) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
   (5) Exhibition of the genitals or pubic or rectal areas of any
person for the purpose of sexual stimulation of the viewer.
   (6) Defecation or urination for the purpose of sexual stimulation
of the viewer.
   (c) Subdivision (a) does not apply to the activities of law
enforcement and prosecution agencies in the investigation and
prosecution of criminal offenses or to legitimate medical,
scientific, or educational activities, or to lawful conduct between
spouses.
   (d) Every person who violates subdivision (a) shall be punished by
a fine of not more than two thousand dollars ($2,000) or by
imprisonment in the county jail for not more than one year, or by
both that fine and imprisonment. If the person has been previously
convicted of a violation of subdivision (a) or any section of this
chapter, he or she shall be punished by imprisonment in the state
prison.
   (e) The provisions of this section do not apply to an employee of
a commercial film developer who is acting within the scope of his or
her employment and in accordance with the instructions of his or her
employer, provided that the employee has no financial interest in the
commercial developer by which he or she is employed.
  SEC. 3.  Section 311.4 of the Penal Code is amended to read:
   311.4.  (a) Every person who, with knowledge that a person is a
minor, or who, while in possession of any facts on the basis of which
he or she should reasonably know that the person is a minor, hires,
employs, or uses the minor to do or assist in doing any of the acts
described in Section 311.2, is, for a first offense, guilty of a
misdemeanor.  If the person has previously been convicted of any
violation of this section, the court may, in addition to the
punishment authorized in Section 311.9, impose a fine not exceeding
fifty thousand dollars ($50,000).
   (b) Every person who, with knowledge that a person is a minor
under the age of 18 years, or who, while in possession of any facts
on the basis of which he or she should reasonably know that the
person is a minor under the age of 18 years, knowingly promotes,
employs, uses, persuades, induces, or coerces a minor under the age
of 18 years, or any parent or guardian of a minor under the age of 18
years under his or her control who knowingly permits the minor, to
engage in or assist others to engage in either posing or modeling
alone or with others for purposes of preparing any matter, as defined
in subdivision (b) of Section 311, depicting, or a live performance
involving, sexual conduct by a minor under the age of 18 years alone
or with other persons or animals, for commercial purposes, is guilty
of a felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.
   (c) Every person who, with knowledge that a person is a minor
under the age of 18 years, or who, while in possession of any facts
on the basis of which he or she should reasonably know that the
person is a minor under the age of 18 years, knowingly promotes,
employs, uses, persuades, induces, or coerces a minor under the age
of 18 years, or any parent or guardian of a minor under the age of 18
years under his or her control who knowingly permits the minor, to
engage in or assist others to engage in either posing or modeling
alone or with others for purposes of preparing any matter, as defined
in subdivision (b) of Section 311, depicting, or a live performance
involving, sexual conduct by a minor under the age of 18 years alone
or with other persons or animals, is guilty of a felony.  It is not
necessary to prove commercial purposes in order to establish a
violation of this subdivision.
   (d) (1) As used in subdivisions (b) and (c), "sexual conduct"
means any of the following, whether actual or simulated:  sexual
intercourse, oral copulation, anal intercourse, anal oral copulation,
masturbation, bestiality, sexual sadism, sexual masochism,
penetration of the vagina or rectum by any object in a lewd or
lascivious manner, exhibition of the genitals or pubic or rectal area
for the purpose of sexual stimulation of the viewer, any lewd or
lascivious sexual act as defined in Section 288, or excretory
functions performed in a lewd or lascivious manner, whether or not
any of the above conduct is performed alone or between members of the
same or opposite sex or between humans and animals.  An act is
simulated when it gives the appearance of being sexual conduct.
   (2) As used in subdivisions (b) and (c), "matter" means any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, or any other computer-related equipment or computer-generated
image that contains or incorporates in any manner, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, or
video laser disc.
   (e) This section does not apply to a legally emancipated minor or
to lawful conduct between spouses if one or both are under the age of
18.
   (f) In every prosecution under this section involving a minor
under the age of 14 years at the time of the offense, the age of the
victim shall be pled and proven for the purpose of the enhanced
penalty provided in Section 647a.  Failure to plead and prove that
the victim was under the age of 14 years at the time of the offense
is not a bar to prosecution under this section if it is proven that
the victim was under the age of 18 years at the time of the offense.

  SEC. 4.  Section 311.11 of the Penal Code is amended to read:
   311.11.  (a) Every person who knowingly possesses or controls any
matter, the production of which involves the use of a person under
the age of 18 years, knowing that the matter depicts a person under
the age of 18 years personally engaging in or simulating sexual
conduct, as defined in subdivision (d) of Section 311.4, is guilty of
a public offense and shall be punished by imprisonment in the county
jail for up to one year, or by a fine not exceeding two thousand
five hundred dollars ($2,500), or by both the fine and imprisonment.

   (b) If a person has been previously convicted of a violation of
this section, he or she is guilty of a felony and shall be punished
by imprisonment for two, four, or six years.
   (c) It is not necessary to prove that the matter is obscene in
order to establish a violation of this section.
   (d)   This section does not apply to drawings, figurines, statues,
or any film rated by the Motion Picture Association of America, nor
does it apply to live or recorded telephone messages when
transmitted, disseminated, or distributed as part of a commercial
transaction.
  SEC. 5.  Section 312.3 of the Penal Code is amended to read:
   312.3.  (a) Matter that depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct as
defined in Section 311.4 and that is in the possession of any city,
county, city and county, or state official or agency is subject to
forfeiture pursuant to this section.
   (b) An action to forfeit matter described in subdivision (a) may
be brought by the Attorney General, the district attorney, county
counsel, or the city attorney.  Proceedings shall be initiated by a
petition of forfeiture filed in the superior court of the county in
which the matter is located.
   (c) The prosecuting agency shall make service of process of a
notice regarding that petition upon every individual who may have a
property interest in the alleged proceeds.  The notice shall state
that any interested party may file a verified claim with the superior
court stating the amount of their claimed interest and an
affirmation or denial of the prosecuting agency's allegation.  If the
notice cannot be given by registered mail or personal delivery, the
notice shall be published for at least three successive weeks in a
newspaper of general circulation in the county where the property is
located.  All notices shall set forth the time within which a claim
of interest in the property seized is required to be filed.
   (d) (1) Any person claiming an interest in the property or
proceeds may, at any time within 30 days from the date of the first
publication of the notice of seizure, or within 30 days after receipt
of actual notice, file with the superior court of the county in
which the action is pending a verified claim stating his or her
interest in the property or proceeds.  A verified copy of the claim
shall be given by the claimant to the Attorney General or district
attorney, county counsel, or city attorney, as appropriate.
   (2) If, at the end of the time set forth in paragraph (1), an
interested person has not filed a claim, the court, upon motion,
shall declare that the person has defaulted upon his or her alleged
interest, and it shall be subject to forfeiture upon proof of
compliance with subdivision (c).
   (e) The burden is on the petitioner to prove beyond a reasonable
doubt that matter is subject to forfeiture pursuant to this section.

   (f) It is not necessary to seek or obtain a criminal conviction
prior to the entry of an order for the destruction of matter pursuant
to this section.  Any matter described in subdivision (a) that is in
the possession of any city, county, city and county, or state
official or agency, including found property, or property obtained as
the result of a case in which no trial was had or that has been
disposed of by way of dismissal or otherwise than by way of
conviction may be ordered destroyed.
   (g) A court order for destruction of matter described in
subdivision (a) may be carried out by a police or sheriff's
department or by the Department of Justice.  The court order shall
specify the agency responsible for the destruction.
   (h) As used in this section, "matter" means any book, magazine,
newspaper, or other printed or written material or any picture,
drawing, photograph, motion picture, or other pictorial
representation, or any statue or other figure, or any recording,
transcription or mechanical, chemical or electrical reproduction, or
any other articles, equipment, machines, or materials.  "Matter" also
means any film, filmstrip, photograph, negative, slide, photocopy,
videotape, video laser disc, computer hardware, computer software,
computer floppy disc, or any other computer-related equipment or
computer-generated image that contains or incorporates in any manner,
any film, filmstrip, photograph, negative, slide, photocopy,
videotape, or video laser disc.
   (i) This section does not apply to a depiction of a legally
emancipated minor or to lawful conduct between spouses if one or both
are under the age of 18.
   (j) It is a defense in any forfeiture proceeding that the matter
seized was lawfully possessed in aid of legitimate scientific or
educational purposes.
  SEC. 6.   Section 312.6 is added to the Penal Code, to read:
   312.6.  (a) It does not constitute a violation of this chapter for
a person or entity solely to provide access or connection to or from
a facility, system, or network over which that person or entity has
no control, including related capabilities that are incidental to
providing access or connection. This subdivision does not apply to an
individual or entity that is owned or controlled by, or a
conspirator with, an entity actively involved in the creation,
editing, or knowing distribution of communications that violate this
chapter.
   (b) An employer is not liable under this chapter for the actions
of an employee or agent unless the employee's or agent's conduct is
within the scope of his or her employment or agency and the employer
has knowledge of, authorizes, or ratifies the employee's or agent's
conduct.
   (c) It is a defense to prosecution under this chapter and in any
civil action that may be instituted based on a violation of this
chapter that a person has taken reasonable, effective, and
appropriate actions in good faith to restrict or prevent the
transmission of, or access to, a communication specified in this
chapter.
  SEC. 7.   Section 11166 of the Penal Code is amended to read:

   11166.  (a) Except as provided in subdivision (b), any child care
custodian, health practitioner, employee of a child protective
agency, child visitation monitor, firefighter, animal control
officer, or humane society officer who has knowledge of or observes a
child, in his or her professional capacity or within the scope of
his or her employment, whom he or she knows or reasonably suspects
has been the victim of child abuse, shall report the known or
suspected instance of child abuse to a child protective agency
immediately or as soon as practically possible by telephone and shall
prepare and send a written report thereof within 36 hours of
receiving the information concerning the incident.  A child
protective agency shall be notified and a report shall be prepared
and sent even if the child has expired, regardless of whether or not
the possible abuse was a factor contributing to the death, and even
if suspected child abuse was discovered during an autopsy.  For the
purposes of this article, "reasonable suspicion" means that it is
objectively reasonable for a person to entertain a suspicion, based
upon facts that could cause a reasonable person in a like position,
drawing, when appropriate, on his or her training and experience, to
suspect child abuse. For the purpose of this article, the pregnancy
of a minor does not, in and of itself, constitute a basis of
reasonable suspicion of sexual abuse.
   (b) Any child care custodian, health practitioner, employee of a
child protective agency, child visitation monitor, firefighter,
animal control officer, or humane society officer who has knowledge
of or who reasonably suspects that mental suffering has been
inflicted upon a child or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of child abuse to a child protective agency.
   (c) Any commercial film and photographic print processor who has
knowledge of or observes, within the scope of his or her professional
capacity or employment, any film, photograph, videotape, negative,
or slide depicting a child under the age of 18 years engaged in an
act of sexual conduct, shall report the instance of suspected child
abuse to the law enforcement agency having jurisdiction over the case
immediately, or as soon as practically possible, by telephone, and
shall prepare and send a written report of it with a copy of the
film, photograph, videotape, negative, or slide attached within 36
hours of receiving the information concerning the incident.  As used
in this subdivision, "sexual conduct" means any of the following:
   (1) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
   (2) Penetration of the vagina or rectum by any object.
   (3) Masturbation for the purpose of sexual stimulation of the
viewer.
   (4) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
   (5) Exhibition of the genitals, pubic, or rectal areas of any
person for the purpose of sexual stimulation of the viewer.
   (d) Any other person who has knowledge of or observes a child whom
he or she knows or reasonably suspects has been a victim of child
abuse may report the known or suspected instance of child abuse to a
child protective agency.
   (e) When two or more persons who are required to report are
present and jointly have knowledge of a known or suspected instance
of child abuse, and when there is agreement among them, the telephone
report may be made by a member of the team selected by mutual
agreement and a single report may be made and signed by the selected
member of the reporting team.  Any member who has knowledge that the
member designated to report has failed to do so shall thereafter make
the report.
   (f) The reporting duties under this section are individual, and no
supervisor or administrator may impede or inhibit the reporting
duties, and no person making a report shall be subject to any
sanction for making the report. However, internal procedures to
facilitate reporting and apprise supervisors and administrators of
reports may be established provided that they are not inconsistent
with this article.
   The internal procedures shall not require any employee required to
make reports pursuant to this article to disclose his or her
identity to the employer.
   (g) A county probation or welfare department shall immediately, or
as soon as practically possible, report by telephone to the law
enforcement agency having jurisdiction over the case, to the agency
given the responsibility for investigation of cases under Section 300
of the Welfare and Institutions Code, and to the district attorney's
office every known or suspected instance of child abuse, as defined
in Section 11165.6, except acts or omissions coming within
subdivision (b) of Section 11165.2, or reports made pursuant to
Section 11165.13 based on risk to a child which relates solely to the
inability of the parent to provide the child with regular care due
to the parent's substance abuse, which shall be reported only to the
county welfare department.  A county probation or welfare department
also shall send a written report thereof within 36 hours of receiving
the information concerning the incident to any agency to which it is
required to make a telephone report under this subdivision.
   A law enforcement agency shall immediately, or as soon as
practically possible, report by telephone to the agency given
responsibility for investigation of cases under Section 300 of the
Welfare and Institutions Code and to the district attorney's office
every known or suspected instance of child abuse reported to it,
except acts or omissions coming within subdivision (b) of Section
11165.2, which shall be reported only to the county welfare
department.  A law enforcement agency shall report to the county
welfare department every known or suspected instance of child abuse
reported to it which is alleged to have occurred as a result of the
action of a person responsible for the child's welfare, or as the
result of the failure of a person responsible for the child's welfare
to adequately protect the minor from abuse when the person
responsible for the child's welfare knew or reasonably should have
known that the minor was in danger of abuse.  A law enforcement
agency also shall send a written report thereof within 36 hours of
receiving the information concerning the incident to any agency to
which it is required to make a telephone report under this
subdivision.   
  SEC. 7.   
  SEC. 8.   No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB 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 XIIIB of the California Constitution.

   Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.  
  SEC. 8.   
  SEC. 9.   This bill shall become operative only if Assembly
Bill 1881 of the 1995-96 Regular Session is chaptered and becomes
effective on or before January 1, 1996.