BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 33 (Sharon Runner)
As Amended June 30, 2005
Hearing date: July 12, 2005
Penal Code
JM:br VOTE ONLY
CONTACTING MINORS - PENALTIES
HISTORY
Source: Author
Prior Legislation: AB 141 (Cardoza) - 2001; held on suspense in
Assembly Appropriations
AB 2021 (Steinberg) - Ch. 621, Stats. 2000
Support: Crime Victims United; San Bernardino County District
Attorney; San Bernardino County Sheriff; Attorney
General; California Correctional Supervisors
Association; Child Abuse Prevention Council of Contra
Costa County; California Peace Officers' Association;
California District Attorneys Association; Los Angeles
District Attorney's Office; Los Angeles County
Sheriff's Department; Girl Scouts Council of California
Opposition:Voters Correction Reform Association
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUES
IN THE ALTERNATE INFRACTION-MISDEMEANOR OF COMMUNICATING WITH A
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CHILD FOR THE PURPOSE OF LURING THE CHILD FROM HIS OR HER HOME,
SHOULD THE MINIMUM AGE OF THE VICTIM OF SUCH AN OFFENSE BE
RAISED FROM 12 YEARS TO UNDER 14 YEARS?
SHOULD FORFEITURE OF A COMPUTER USED IN THE CRIME BE ALLOWED?
PURPOSE
The purposes of this bill are to 1) raise the minimum age of a
child-victim of illegal communication with a child from 12 and
under to under 14 year and 2) allow forfeiture of a computer
used in the commission of such an offense.
Existing law provides that an adult stranger 21 years of age
or older who knowingly contacts or communicates with a minor
12 years of age or younger, who knew or should have known that
the minor is 12 years of age or younger, for the purpose of
persuading, transporting, or luring the minor away from his or
her home or known location, without consent, is guilty of
either an infraction or a misdemeanor. (Pen. Code 272,
subd. (b)(1).)
Existing law provides that the crime of luring a child from his
home does not apply to contact made by a person 1) in an
emergency, or 2) in the course and scope of employment, or 3) to
contact made by a volunteer for a recognized civic or charitable
organization. (Pen. Code 272, subd. (b)(2) and (4).)
Existing law provides that an infraction is not punishable by
imprisonment. (Pen. Code 19.6.)
Existing law provides that a person charged with an infraction
is not entitled to a trial by jury or a public defender or other
counsel appointed to represent him or her at public expense.
(Pen. Code 19.6.)
Existing law provides that any person who by act or omission
persuades, induces, or commands a person under the age of 18
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years to disobey a lawful order of the juvenile court or causes
a minor to remain a delinquent or dependent child is guilty of
contributing to the delinquency of a minor. (Pen. Code 272,
subd. (a)(1).)
Existing law makes the punishment for the offense of
contributing to the delinquency of a minor a misdemeanor,
punishable by imprisonment in the county jail up to one year; by
a fine not exceeding $2,500; or by both. (Pen. Code 272,
subd. (a)(1).)
Existing law provides that any person with knowledge that a
person is a minor, or who fails to exercise reasonable care in
determining the true age of a minor, who sends any harmful
matter with the intent to sexually arouse himself or herself or
a minor for the purpose of seducing the minor is guilty of an
alternate felony-misdemeanor. A second conviction for the
offense is a felony. (Pen. Code 288.2, subd. (a).)
Existing law authorizes the forfeiture of a computer or
telecommunications equipment used in the commission of specified
theft, fraud, and computer crimes. (Pen. Code 502.01.)
Existing law authorizes forfeiture of computers and
telecommunications equipment used to commit specified theft,
fraud, and computer crimes. (Pen. Code 502.01.)
Existing law (Pen. Code 502.01) provides that computer and
telecommunications equipment used in the following crimes is
subject to forfeiture:
Forgery (Pen. Code<1> 470)
Forging a driver's license or identification card ( 470a)
Counterfeiting public and private seals ( 472)
Possessing or uttering forged paper ( 475)
Forging bills, notes, and checks ( 476)
Counterfeiting money ( 480)
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<1> All statutory references are to the Penal Code unless
otherwise noted.
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Acquiring four or more access cards in a 12-month period (
484e, subd. (b))
Acquiring access card account information with intent to
defraud ( 484e, subd. (d))
Making or altering a counterfeit access card with intent to
defraud ( 484f, subd. (a))
Altering/modifying access card account information with intent
to defraud ( 484i, subd. (b))
Accessing and without permission using computer systems to
defraud, deceive, extort or obtain money or property;
accessing and without permission taking, copying, or using
computer data; using computer services without permission;
accessing and without permission adding, deleting or
destroying data, software, or programs; without permission,
disrupting or denying computer services to an authorized
user; without permission, providing a means of accessing a
computer; accessing any computer, computer system or network
without permission; introducing a contaminant into any
computer, computer system or network; without permission,
using the Internet domain name of another person to send
e-mail which damages a computer, or computer system or
network ( 502, subd. (c))
Avoidance of telephone or cellular service charges ( 502.7
and 502.8)
False impersonation ( 529)
Producing, selling or transferring a false birth or baptism
certificate ( 529a)
Using personal identifying information without consent (
530.5)
Removal of serial numbers ( 537e)
Stalking ( 646.9)
Terrorist threats ( 422)
Obscenity and child pornography crimes ( 311.1-311.5,
311.10, 311.11)
Distribution or exhibition of harmful matter<2> to a minor
with the intent to seduce him or her ( 288.2)
Lewd conduct with a child or dependent adult ( 288).
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<2> Harmful matter is material that is obscene for a child, but
not necessarily for an adult. (Pen. Code 313.)
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Existing law requires a conviction of the underlying offense
before a computer is subjection to forfeiture under Section
502.01 in a civil proceeding after or at the time of sentencing.
The prosecution must prove by a preponderance of the evidence
that the computer was used in the commission of the crime.
(Pen. Code 502.01, subds. (a) and (b).)
This bill adds the crime of luring a minor from the home ( 272,
subd. (b)) to the list of crimes for which a computer used in
the commission of the offense may be forfeited.
This bill increases the age of the minor, for the purpose of
these provisions, from 12 and under to under14.
COMMENTS
1. Need for This Bill
According to the author:
With the proliferation of the Internet, child
predators are moving from the playground to the
Internet in their search for unsuspecting children.
Children now encounter ever-increasing dangers and
parents, in turn, face a growing challenge to protect
their young.
AB 2021 (Steinberg) [Ch. 621, Stats. 2000] instituted
the first curb on the formerly limitless access to
children enjoyed by child predators. While this law
created the crime of child luring, it failed to
include protection for those children who are most
vulnerable - teenage children.
According to Online Victimization: a Report on the
Nation's Youth, a June 2000 study by the Crimes
Against Children Research Center, approximately one in
five youths received a sexual solicitation or approach
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over the Internet. The primary vulnerable population
for sexual victimization was teenagers.
Access to the Internet and a sense of independence
makes teenagers the most frequently targeted
population for predatory luring. AB 33, therefore,
would increase the age of children protected by state
law from 12 to 14. Furthermore, AB 33 would enhance
the penalty for child luring in order to further
discourage the crime and provide a more appropriate
punishment. Under some circumstances, the bill allows
forfeiture of a defendant's computer that was used to
commit child luring. Removing a known predator's
access to innocent victims is a common sense approach
to preventing further victimization.
2. Summary of What This Bill Would Do
Elements of the Crime (as amended by this bill)
Contacting child who is now under 14 years of
age (existing law applies to a child who is no more
than 12 years old). As previously drafted, the
bill raised the minimum age to 14 and under. Some
Committee members expressed concerns that the law
would then apply to high-school freshmen. These
members stated a preference to apply this law to
cases involving children in junior high and lower
grades.
By stranger over the age of
21
To lure the child away from
home for any purpose
Defendant does not have the
express consent of the parent
Defendant intends to avoid
parental consent
Exceptions - bill does not change existing law
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Does not apply to an emergency situation
Does not apply to a person who contacts a minor
within the scope and course of their employment
Does not apply to a volunteer for a recognized
civic or charitable organization.
Penalties - as
amended by this bill
Under existing law, the crime is an
infraction-misdemeanor. As previously drafted, this
bill eliminates the infraction. As amended on June
30, 2005, the bill includes an infraction option.
It is recommended that the bill be amended to
provide that the infraction-misdemeanor shall be
subject to the provisions of Penal Code Section 17,
subdivision (d), which describes standard procedural
and substantive rules for infraction-misdemeanors.
This amendment would reduce confusion for
practitioners, the courts and defendants.
Retaining the infraction option responds to
concerns raised by some Committee members. In
particular, concerns were raised as to the
application and interpretation of the exception in
existing law for contact made in the course of
employment or by a volunteer for a civic or
charitable organization could be problematic.
This bill allows forfeiture of the defendant's
computer
SHOULD THE BILL BE AMENDED TO CLARIFY THAT THE
INFRACTION-MISDEMEANOR FOR CONTACTING A MINOR SHALL BE SUBJECT
TO PENAL CODE SECTION 17, (d)?
3. Laws Governing Infraction-Misdemeanors (Wobblets)
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Penal Code Section 17, subdivision (d), and Sections 19.6-19.8
set out the rules for infraction-misdemeanor crimes. (An
infraction misdemeanor is commonly called a "wobblet.") The
most important distinctions between infractions and misdemeanors
are that an infraction cannot be punished through a jail
sentence and that a defendant charged with an infraction is not
entitled to either a jury trial or an attorney at public
expense.
Thus, it is less costly to prosecute an infraction than a
misdemeanor, but the punishment is not as severe. Further, many
persons familiar with the criminal justice system believe that
it may often be easier for the prosecution to obtain a
conviction in a court trial than in a jury trial. Typically,
however, a person charged with the infraction version of an
infraction-misdemeanor can demand to be prosecuted for the
misdemeanor, thereby obtaining a jury trial and appointed
counsel. Also, the court, with the defendant's consent, can
deem an infraction-misdemeanor to be an infraction where the
prosecutor charged the defendant with the misdemeanor.
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Section 19.8 states:
The following offenses are subject to subdivision (d)
of Section 17 [concerning infractions]: Sections
193.8, 330, 415, 485, 555, and 853.7, of this code;
subdivision (m) of Section 602 of this code;
subdivision (b) of Section 25658 and Sections 21672,
25658.5, 25661, and 25662 of the Business and
Professions Code; Section 27204 of the Government
Code; subdivision (c) of Section 23109 and Sections
12500, 14601.1, 27150.1, 40508, and 42005 of the
Vehicle Code, and any other offense which the
Legislature makes subject to subdivision (d) of
Section 17.
Except where a lesser maximum fine is expressly
provided for violation of any of those sections, any
violation which is an infraction is punishable by a
fine not exceeding two hundred fifty dollars ($250).
(Pen. Code 19.8.)
Except for the violations enumerated in subdivision
(d) of Section 13202.5 of the Vehicle Code, and
Section 14601.1 of the Vehicle Code based upon failure
to appear, a conviction for any offense made an
infraction under subdivision (d) of Section 17 is not
grounds for the suspension, revocation, or denial of
any license, or for the revocation of probation or
parole of the person convicted.
Penal Code Section 17, subdivision (d), provides:
Violation of any code section listed in Section
19.8 is an infraction subject to the procedures
described in Sections 19.6 and 19.7 when:
(1) The prosecutor files a complaint charging the
offense as an infraction unless the defendant, at
the time he or she is arraigned, after being
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informed of his or her rights, elects to have the
case proceed as a misdemeanor, or;
(2) The court, with the consent of the defendant,
determines that the offense is an infraction in
which event the case shall proceed as if the
defendant had been arraigned on an infraction
complaint. (Pen. Code 17, subd. (d).)
Penal Code Section 19.7 provides:
Except as otherwise provided by law, all provisions
of law relating to misdemeanors shall apply to
infractions including, but not limited to, powers
of peace officers, jurisdiction of courts, periods
for commencing action and for bringing a case to
trial and burden of proof.
4. Related Prior Bills
AB 1443 (La Suer), of the 2002-03 Legislative Session, would
have provided that any person who contacts a minor with the
intent to commit child abuse or specified sex offenses shall
be punished the same as an attempt to commit the specified
offense. AB 1443 failed passage in the Assembly Public Safety
Committee.
SB 882 (Denham), of the 2002-03 Legislative Session, would
have provided that any person who contacts a minor with the
intent to commit child abuse or specified sex offenses shall
be punished the same as an attempt to commit the specified
offense. SB 882 failed passage in the Senate Public Safety
Committee.
AB 141 (Cardoza), of the 2001-02 Legislative Session, would
have increased the penalty for child luring from an alternate
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misdemeanor/infraction to an alternate felony/misdemeanor. AB
141 was held on the Appropriations Committee Suspense File.
AB 1141 (La Suer), of the 2000-01 Legislative Session, would
have provided that any person who contacts a minor with the
intent to commit child abuse or specified sex offenses shall
be punished the same as an attempt to commit the specified
offense. AB 1141 was held on the Senate Appropriations
Committee Suspense File.
AB 2021 (Steinberg), Chapter 621, Statutes of 2000, created a
new infraction/misdemeanor for an adult 21 years of age or
older knowingly contacting a minor 12 years of age or less for
the purpose of luring the minor away from his or her home or
other location.
AB 1843 (Baldwin), of the 1997-98 Legislative Session, would
have made it a felony to contact or communicate with a person
under the age of 18 for the purpose of engaging or with the
intent to engage in any unlawful act against a minor. AB 1843
failed passage in the Assembly Committee on Public Safety.
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