BILL NUMBER: AB 50 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 31, 2006
AMENDED IN ASSEMBLY JANUARY 31, 2006
AMENDED IN ASSEMBLY JANUARY 26, 2006
AMENDED IN ASSEMBLY JANUARY 23, 2006
AMENDED IN ASSEMBLY JANUARY 4, 2006
AMENDED IN ASSEMBLY MAY 3, 2005
INTRODUCED BY Assembly Members Leno and Cohn
(Coauthors: Assembly Members Calderon, Bass, Berg, Chan, Chavez,
Chu, Coto, Dymally, Evans, Frommer, Goldberg, Hancock, Jerome Horton,
Jones, Karnette, Klehs, Koretz, Laird, Levine, Lieber, Liu,
Matthews, Montanez, Mullin, Nava, Negrete McLeod, Nunez, Oropeza,
Parra, Pavley, Ridley-Thomas, Ruskin, Saldana, Salinas, Torrico,
Umberg, and Wolk)
DECEMBER 6, 2004
An act to amend Sections 209, 272, 288, 311.2, 311.4, 311.9,
311.11, 626.8, 667.61, 3000, 3001, and 3005 of, and to add Sections
626.75, 3006, and 3072 to, the Penal Code, relating to crimes.
LEGISLATIVE COUNSEL'S DIGEST
AB 50, as amended, Leno Sex offenders.
Under existing law, the punishment for a person who kidnaps an
individual in order to commit robbery, rape, oral copulation, sodomy,
or sexual penetration is imprisonment for life with the possibility
of parole.
This bill would add kidnapping in order to commit lewd and
lascivious acts to that provision.
Under existing law, an adult who knowingly contacts or
communicates with a minor who is 14 years of age or younger for the
purpose of persuading, luring or transporting the minor away from the
minor's home or other location without the express consent of the
minor's parent or legal guardian is guilty of an infraction or
misdemeanor.
This bill would, instead, make it a misdemeanor to contact or
communicate with a minor who is 14 years of age or younger with the
intent to commit certain specified crimes involving the minor, and
would increase the punishment for that crime to a misdemeanor or
felony if the person has a previous conviction for certain sex
offenses.
Under existing law, the punishment for lewd and lascivious acts
with a minor or upon a dependent person by a caretaker by force,
violence, duress, menace or fear, is 3, 6, or 8 years.
This bill would increase that punishment to 3, 6, or 10 years.
Under existing law, a person who possesses, prepares, publishes,
produces, develops, duplicates, or prints any data or image with the
intent to distribute, exhibit, or exchange the data or image with a
person 18 years of age or older, knowing the data or image depicts a
person under 18 years of age personally engaging in or personally
simulating sexual conduct is guilty of a misdemeanor.
This bill would increase the punishment for that crime to a
misdemeanor or felony.
Under existing law, a person who uses a minor to assist in the
distribution of child pornography is guilty of a misdemeanor upon a
first offense.
This bill would increase the punishment for the first conviction
of that crime to a misdemeanor or felony.
Under existing law, the first conviction for possession of child
pornography is punished as a misdemeanor.
This bill would make the punishment for a first conviction either
a misdemeanor or a felony if the person possessed 10 or more
items of child pornography .
Under existing law, a person who enters school grounds or remains
upon any public way adjacent to a school who does not have lawful
business at the school and whose presence disrupts the school or
pupils therein, is guilty of a misdemeanor if he or she has
previously been asked to leave the school or otherwise has
established a pattern of unauthorized activity, is guilty of a
misdemeanor.
This bill would make it a misdemeanor for any person who is
required to register as a sex offender who has been convicted of
specified sex offenses from being present on any school property, or
street, sidewalk, or public walkway adjacent to any school property,
as specified.
This bill would also make it a misdemeanor for any person
convicted of committing lewd or lascivious acts upon a child,
continuous sexual abuse of a child, or aggravated sexual assault of a
child to be present on any school property, or street, sidewalk, or
public walkway adjacent to any school property, as specified.
Under existing law, the parole period for an inmate sentenced for
committing lewd and lascivious acts on a child or continuous sexual
abuse of a child is no more than 5 years.
This bill would increase the possible parole period for a person
convicted of either of those crimes to 10 years, but would require
the person to be discharged from parole after 6 years, except under
certain circumstances.
Under existing law, the Department of Corrections and
Rehabilitation is required to develop a plan, subject to the
appropriation of funds therefor, for the implementation of relapse
prevention treatment programs and services for high-risk sex
offenders.
This bill would require the department to study the effects of
this plan on the recidivism rates of those parolees, and to report to
the Legislature thereon.
The bill would authorize the department to establish and operate a
specialized sex offender treatment programs for inmates and parolees
whom the department deems pose a high risk to the public of
committing violent sex crimes.
Because the bill would increase penalties for some crimes and
create new crimes, the bill would impose a state-mandated local
program.
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. This act shall be known and may be cited as the Sex
Offender Management and Containment Act of 2006.
SEC. 2. Section 209 of the Penal Code is amended to read:
209. (a) Any person who seizes, confines, inveigles, entices,
decoys, abducts, conceals, kidnaps or carries away another person by
any means with intent to hold or detain, or who holds or detains,
that person for ransom, reward or to commit extortion or to exact
from another person any money or valuable thing, or any person who
aids or abets any of those acts, is guilty of a felony. Upon
conviction thereof, a person shall be punished by imprisonment in the
state prison for life without possibility of parole if a victim of
any of those acts suffers death or bodily harm or is intentionally
confined in a manner which exposes that person to a substantial
likelihood of death, or shall be punished by imprisonment in the
state prison for life with the possibility of parole if the victim
does not suffer death or bodily harm.
(b) (1) Any person who kidnaps or carries away any individual to
commit robbery, rape, spousal rape, oral copulation, sodomy, or any
violation of Section 288 or 289, shall be punished by imprisonment in
the state prison for life with the possibility of parole.
(2) This subdivision shall only apply if the movement of the
victim is beyond that merely incidental to the commission of, and
increases the risk of harm to the victim over and above that
necessarily present in, the intended underlying offense.
(c) In all cases in which probation is granted, the court shall,
except in unusual cases where the interests of justice would best be
served by a lesser penalty, require as a condition of the probation
that the person be confined in the county jail for 12 months. If the
court grants probation without requiring the defendant to be confined
in the county jail for 12 months, it shall specify its reason or
reasons for imposing a lesser penalty.
(d) Subdivision (b) shall not be construed to supersede or affect
Section 667.61. A person may be charged with a violation of
subdivision (b) and Section 667.61. However, a person may not be
punished under subdivision (b) and Section 667.61 for the same act
that constitutes a violation of both subdivision (b) and Section
667.61.
SEC. 3. Section 272 of the Penal Code, as amended by Chapter 461
of the Statutes of 2005, is amended to read:
272. (a) (1) Every person who commits any act or omits the
performance of any duty, which act or omission causes or tends to
cause or encourage any person under the age of 18 years to come
within the provisions of Section 300, 601, or 602 of the Welfare and
Institutions Code or which act or omission contributes thereto, or
any person who, by any act or omission, or by threats, commands, or
persuasion, induces or endeavors to induce any person under the age
of 18 years or any ward or dependent child of the juvenile court to
fail or refuse to conform to a lawful order of the juvenile court, or
to do or to perform any act or to follow any course of conduct or to
so live as would cause or manifestly tend to cause that person to
become or to remain a person within the provisions of Section 300,
601, or 602 of the Welfare and Institutions Code, is guilty of a
misdemeanor. Upon conviction thereof, that person shall be punished
by a fine not exceeding two thousand five hundred dollars ($2,500),
or by imprisonment in the county jail for not more than one year, or
by both fine and imprisonment in a county jail, or may be released on
probation for a period not exceeding five years.
(2) For purposes of this subdivision, a parent or legal guardian
to any person under the age of 18 years shall have the duty to
exercise reasonable care, supervision, protection, and control over
their minor child.
(b) (1) An adult stranger who is 21 years of age or older, who
knowingly contacts or communicates with a minor who is under 14 years
of age, who knew or reasonably should have known that the minor is
under 14 years of age, with the intent to commit an offense specified
in Sections 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289,
311.1, 311.2, 311.4 or 311.11 involving the minor is guilty of a
misdemeanor punishable by a fine not exceeding one thousand dollars
($1,000), or by imprisonment in a county jail not exceeding one year,
or both a fine and imprisonment.
(2) Any person convicted of violating this subdivision who has a
previous conviction for a violation of Section 288 or 288.5 shall be
punished by imprisonment in a county jail for a period not to exceed
one year, or in the state prison for 16 months, or two or three
years.
(3) This subdivision shall not apply in an emergency situation.
(4) As used in this subdivision, the following terms apply:
(A) "Emergency situation" means a situation where the minor is
threatened with imminent bodily harm, emotional harm, or
psychological harm.
(B) "Contact" or "communication" includes, but is not limited to,
the use of a telephone or the Internet, as defined in Section 17538
of the Business and Professions Code.
(C) "Stranger" means a person of casual acquaintance with whom no
substantial relationship exists, or an individual with whom a
relationship has been established or promoted for the primary purpose
of victimization, as defined in subdivision (e) of Section 6600 of
the Welfare and Institutions Code.
(D) "Express consent" means oral or written permission that is
positive, direct, and unequivocal, requiring no inference or
implication to supply its meaning.
(5) This section shall not be interpreted to criminalize acts of
persons contacting minors within the scope and course of their
employment, or status as a volunteer of a recognized civic or
charitable organization.
(6) This section is intended to protect minors and to help parents
and legal guardians exercise reasonable care, supervision,
protection, and control over minor children.
SEC. 4. Section 288 of the Penal Code is amended to read:
288. (a) 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 3, 6, 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 3, 6, 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.
(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.
SEC. 5. Section 311.2 of the Penal Code is amended to read:
311.2. (a) Every person who knowingly sends or causes to be sent,
or brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, or prints, with intent to distribute or to exhibit to
others, or who offers to distribute, distributes, or exhibits to
others, any obscene matter 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 knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints 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 that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or to
exhibit to, or to exchange with, others for commercial consideration,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, others for commercial consideration, any obscene
matter, knowing that the matter depicts a person under the age of 18
years personally engaging in or personally simulating sexual conduct,
as defined in Section 311.4, is guilty of a felony and shall be
punished by imprisonment in the state prison for two, three, or six
years, or by a fine not exceeding one hundred thousand dollars
($100,000), in the absence of a finding that the defendant would be
incapable of paying such a fine, or by both that fine and
imprisonment.
(c) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints 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 that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person 18 years of age or older,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, a person 18 years of age or older any matter, knowing
that the matter depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct, as
defined in Section 311.4, shall be punished by imprisonment in the
county jail for up to one year, or by a fine not exceeding two
thousand dollars ($2,000), or by both that fine and imprisonment, or
by imprisonment in the state prison. It is not necessary to prove
commercial consideration or that the matter is obscene in order to
establish a violation of this subdivision. If a person has been
previously convicted of a violation of this subdivision, he or she is
guilty of a felony.
(d) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints 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 that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person under 18 years of age, or
who offers to distribute, distributes, or exhibits to, or exchanges
with, a person under 18 years of age any matter, knowing that the
matter depicts a person under the age of 18 years personally engaging
in or personally simulating sexual conduct, as defined in Section
311.4, is guilty of a felony. It is not necessary to prove commercial
consideration or that the matter is obscene in order to establish a
violation of this subdivision.
(e) Subdivisions (a) to (d), inclusive, do not apply to the
activities of law enforcement and prosecuting agencies in the
investigation and prosecution of criminal offenses, to legitimate
medical, scientific, or educational activities, or to lawful conduct
between spouses.
(f) This section does not apply to matter that depicts a legally
emancipated child under the age of 18 years or to lawful conduct
between spouses when one or both are under the age of 18 years.
(g) It does not constitute a violation of this section for a
telephone corporation, as defined by Section 234 of the Public
Utilities Code, to carry or transmit messages described in this
chapter or to perform related activities in providing telephone
services.
SEC. 6. 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, for a first offense, shall be punished by
imprisonment in the county jail for up to one year, or by a fine not
exceeding one thousand dollars ($1,000), or by both that fine and
imprisonment, or by imprisonment in the state prison. 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 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 that contains or incorporates in
any manner, any film, filmstrip, 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 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 that contains or incorporates in
any manner, any film, filmstrip, 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 647.6. 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. 7. Section 311.9 of the Penal Code is amended to read:
311.9. (a) Every person who violates Section 311.2 or 311.5,
except subdivision (b) of Section 311.2, is punishable by fine of not
more than one thousand dollars ($1,000) plus five dollars ($5) for
each additional unit of material coming within the provisions of this
chapter, which is involved in the offense, not to exceed ten
thousand dollars ($10,000), or by imprisonment in the county jail for
not more than six months plus one day for each additional unit of
material coming within the provisions of this chapter, and which is
involved in the offense, such basic maximum and additional days not
to exceed 360 days in the county jail, or by both such fine and
imprisonment. If the person has previously been convicted of any
offense in this chapter, or of a violation of Section 313.1, a
violation of Section 311.2 or 311.5, except subdivision (b) of
Section 311.2, is punishable as a felony.
(b) Every person who violates Section 311.4 is punishable by 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 such fine and
imprisonment, or by imprisonment in the state prison. If the person
has been previously convicted of a violation of former Section 311.3
or Section 311.4 he is punishable by imprisonment in the state
prison.
(c) Every person who violates Section 311.7 is punishable by fine
of not more than one thousand dollars ($1,000) or by imprisonment in
the county jail for not more than six months, or by both such fine
and imprisonment. For a second and subsequent offense he 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 twice
convicted of a violation of this chapter, a violation of Section
311.7 is punishable as a felony.
SEC. 8. Section 311.11 of the Penal Code is amended to read:
311.11. (a) Every person who knowingly possesses or controls any
matter, 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
that contains or incorporates in any manner, any film or filmstrip,
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 imprisonment in the state prison ,
or by a fine not exceeding two thousand five hundred dollars
($2,500), or by both the fine and imprisonment. If a person
possesses 10 or more items or visual images that are prohibited by
this section, he or she shall be punished by imprisonment in the
county jail for up to one year, or in the state prison.
(b) If a person has been previously convicted of a violation of
this section, or of a violation of subdivision (b) of Section 311.2,
or subdivision (b) of Section 311.4, 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. 9. Section 626.75 is added to the Penal Code, to read:
626.75. (a) It is unlawful for any person who is required to
register pursuant to Section 290, who has been convicted of a
violation of Section 220, 261, 266, 267, 272, or 289, or of
subdivision (c), (d), or (f) of Section 286, or of subdivision (c),
(d), or (f) of Section 288a, or of an attempt to commit a violation
of any of those sections, to knowingly be present in any school
building, or upon any school ground, or street, sidewalk, or public
walkway adjacent to, or on real property comprising any public or
private elementary, vocational, junior high, or high school during
hours that the school is open for classes or school-related programs,
unless that person is a parent or guardian of a child attending that
school, or is a student at the school or has prior written
permission for entry from the chief administrative officer of that
school. A violation of this provision shall be punishable as a
misdemeanor.
(b) It is unlawful for any person who is required to register
pursuant to Section 290, who has been convicted of a violation of
Section 288, 288.5, or 269 or of attempting to commit a violation of
any of those sections, to be knowingly present in any school
building, or upon any school ground, or street, sidewalk, or public
walkway adjacent to, or on real property comprising any public or
private elementary, vocational, junior high, or high school during
hours that the school is open for classes or school-related programs,
unless that person is a parent or guardian of a child attending that
school, or is a student at the school or has prior written
permission for entry from the chief administrative officer of the
school. A violation of this provision shall be punished by
imprisonment in the county jail not to exceed one year, by a fine not
to exceed one thousand dollars ($1,000), or by both a fine and
imprisonment.
(c) Nothing in this section shall be construed to infringe upon
the constitutional right of such a person to be present in a school
building that is used as a polling place for the purpose of voting.
SEC. 10. Section 626.8 of the Penal Code is amended to read:
626.8. (a) Any person who comes into any school building or upon
any school ground, or street, sidewalk, or public way adjacent
thereto, without lawful business thereon, and whose presence or acts
interfere with the peaceful conduct of the activities of the school
or disrupt the school or its pupils or school activities, is guilty
of a misdemeanor if he or she does any of the following:
(1) Remains there after being asked to leave by the chief
administrative official of that school or his or her designated
representative, or by a person employed as a member of a security or
police department of a school district pursuant to Section 39670 of
the Education Code, or a city police officer, or sheriff or deputy
sheriff, or a Department of the California Highway Patrol peace
officer.
(2) Reenters or comes upon that place within seven days of being
asked to leave by a person specified in paragraph (1).
(3) Has otherwise established a continued pattern of unauthorized
entry.
This section shall not be used to impinge upon the lawful exercise
of constitutionally protected rights of freedom of speech or
assembly.
(b) Punishment for violation of this section shall be as follows:
(1) Upon a first conviction by a fine of not exceeding five
hundred dollars ($500), by imprisonment in the county jail for a
period of not more than six months, or by both the fine and
imprisonment.
(2) If the defendant has been previously convicted once of a
violation of any offense defined in this chapter or Section 415.5, by
imprisonment in the county jail for a period of not less than 10
days or more than six months, or by both imprisonment and a fine of
not exceeding five hundred dollars ($500), and shall not be released
on probation, parole, or any other basis until he or she has served
not less than 10 days.
(3) If the defendant has been previously convicted two or more
times of a violation of any offense defined in this chapter or
Section 415.5, by imprisonment in the county jail for a period of not
less than 90 days or more than six months, or by both imprisonment
and a fine of not exceeding five hundred dollars ($500), and shall
not be released on probation, parole, or any other basis until he or
she has served not less than 90 days.
(c) As used in this section, the following definitions apply:
(1) "Lawful business" means a reason for being present upon school
property which is not otherwise prohibited by statute, by ordinance,
or by any regulation adopted pursuant to statute or ordinance.
(2) "Continued pattern of unauthorized entry" means that on at
least two prior occasions in the same school year the defendant came
into any school building or upon any school ground, or street,
sidewalk, or public way adjacent thereto, without lawful business
thereon, and his or her presence or acts interfered with the peaceful
conduct of the activities of the school or disrupted the school or
its pupils or school activities, and the defendant was asked to leave
by a person specified in paragraph (1) of subdivision (a).
(3) "School" means any preschool or school having any of grades
kindergarten through 12.
(d) When a person is directed to leave pursuant to paragraph (1)
of subdivision (a), the person directing him or her to leave shall
inform the person that if he or she reenters the place within seven
days he or she will be guilty of a crime.
SEC. 11. Section 667.61 of the Penal Code is amended to read:
667.61. (a) A person who is convicted of an offense specified in
subdivision (c) under one or more of the circumstances specified in
subdivision (d) or under two or more of the circumstances specified
in subdivision (e) shall be punished by imprisonment in the state
prison for life and shall not be eligible for release on parole for
25 years except as provided in subdivision (j).
(b) Except as provided in subdivision (a), a person who is
convicted of an offense specified in subdivision (c) under one of the
circumstances specified in subdivision (e) shall be punished by
imprisonment in the state prison for life and shall not be eligible
for release on parole for 15 years except as provided in subdivision
(j).
(c) This section shall apply to any of the following offenses:
(1) A violation of paragraph (2) of subdivision (a) of Section
261.
(2) A violation of paragraph (1) of subdivision (a) of Section
262.
(3) A violation of Section 264.1.
(4) A violation of subdivision (b) of Section 288.
(5) A violation of subdivision (a) of Section 288.5.
(6) A violation of subdivision (a) of Section 289.
(7) Sodomy or oral copulation in violation of Section 286 or 288a
by force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person.
(8) A violation of subdivision (a) of Section 288, unless the
defendant qualifies for probation under subdivision (c) of Section
1203.066.
(d) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c).
(2) The defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily inherent
in the underlying offense in subdivision (c).
(3) The defendant inflicted aggravated mayhem or torture on the
victim or another person in the commission of the present offense in
violation of Section 205 or 206.
(4) The defendant committed the present offense during the
commission of a burglary, as defined in subdivision (a) of Section
460, with intent to commit an offense specified in subdivision (c).
(e) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) Except as provided in paragraph (2) of subdivision (d), the
defendant kidnapped the victim of the present offense in violation of
Section 207, 209, or 209.5.
(2) Except as provided in paragraph (4) of subdivision (d), the
defendant committed the present offense during the commission of a
burglary, as defined in subdivision (a) of Section 460, or during the
commission of a burglary of a building, including any commercial
establishment, which was then closed to the public, in violation of
Section 459.
(3) The defendant personally inflicted great bodily injury on the
victim or another person in the commission of the present offense in
violation of Section 12022.53, 12022.7, or 12022.8.
(4) The defendant personally used a dangerous or deadly weapon or
firearm in the commission of the present offense in violation of
Section 12022, 12022.3, 12022.5, or 12022.53.
(5) The defendant has been convicted in the present case or cases
of committing an offense specified in subdivision (c) against more
than one victim.
(6) The defendant engaged in the tying or binding of the victim or
another person in the commission of the present offense.
(7) The defendant administered a controlled substance to the
victim by force, violence, or fear in the commission of the present
offense in violation of Section 12022.75.
(f) If only the minimum number of circumstances specified in
subdivision (d) or (e) which are required for the punishment provided
in subdivision (a) or (b) to apply have been pled and proved, that
circumstance or those circumstances shall be used as the basis for
imposing the term provided in subdivision (a) or (b) rather than
being used to impose the punishment authorized under any other law,
unless another law provides for a greater penalty. However, if any
additional circumstance or circumstances specified in subdivision (d)
or (e) have been pled and proved, the minimum number of
circumstances shall be used as the basis for imposing the term
provided in subdivision (a), and any other additional circumstance or
circumstances shall be used to impose any punishment or enhancement
authorized under any other law. Notwithstanding any other law, the
court shall not strike any of the circumstances specified in
subdivision (d) or (e).
(g) The term specified in subdivision (a) or (b) shall be imposed
on the defendant once for any offense or offenses committed against a
single victim during a single occasion. If there are multiple
victims during a single occasion, the term specified in subdivision
(a) or (b) shall be imposed on the defendant once for each separate
victim. Terms for other offenses committed during a single occasion
shall be imposed as authorized under any other law, including Section
667.6, if applicable.
(h) Probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, any person who is subject to
punishment under this section for any offense specified in
paragraphs (1) to (6), inclusive, of subdivision (c).
(i) For the penalties provided in this section to apply, the
existence of any fact required under subdivision (d) or (e) shall be
alleged in the accusatory pleading and either admitted by the
defendant in open court or found to be true by the trier of fact.
(j) Article 2.5 (commencing with Section 2930) of Chapter 7 of
Title 1 of Part 3 shall apply to reduce the minimum term of 25 years
in the state prison imposed pursuant to subdivision (a) or 15 years
in the state prison imposed pursuant to subdivision (b). However, in
no case shall the minimum term of 25 or 15 years be reduced by more
than 15 percent for credits granted pursuant to Section 2933, 4019,
or any other law providing for conduct credit reduction. In no case
shall any person who is punished under this section be released on
parole prior to serving at least 85 percent of the minimum term of 25
or 15 years in the state prison.
SEC. 12. Section 3000 of the Penal Code is amended to read:
3000. (a) (1) The Legislature finds and declares that the period
immediately following incarceration is critical to successful
reintegration of the offender into society and to positive
citizenship. It is in the interest of public safety for the state to
provide for the supervision of and surveillance of parolees,
including the judicious use of revocation actions, and to provide
educational, vocational, family and personal counseling necessary to
assist parolees in the transition between imprisonment and discharge.
A sentence pursuant to Section 1168 or 1170 shall include a period
of parole, unless waived, as provided in this section.
(2) The Legislature finds and declares that it is not the intent
of this section to diminish resources allocated to the Department of
Corrections and Rehabilitation for parole functions for which the
department is responsible. It is also not the intent of this section
to diminish the resources allocated to the Board of Parole Hearings
to execute its duties with respect to parole functions for which the
board is responsible.
(3) The Legislature finds and declares that diligent effort must
be made to ensure that parolees are held accountable for their
criminal behavior, including, but not limited to, the satisfaction of
restitution fines and orders.
(4) Any finding made pursuant to Article 4 (commencing with
Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and
Institutions Code, that a person is a sexually violent predator
shall not toll, discharge, or otherwise affect that person's period
of parole.
(b) Notwithstanding any provision to the contrary in Article 3
(commencing with Section 3040) of this chapter, the following shall
apply:
(1) (A) At the expiration of a term of imprisonment of one year
and one day, or a term of imprisonment imposed pursuant to Section
1170 or at the expiration of a term reduced pursuant to Section 2931
or 2933, if applicable, the inmate shall be released on parole for a
period not exceeding three years, except that any inmate sentenced
for an offense specified in paragraph (3), (4), (5), (11), or (18) of
subdivision (c) of Section 667.5 shall be released on parole for a
period not exceeding five years, unless in either case the parole
authority for good cause waives parole and discharges the inmate from
the custody of the department.
(B) Notwithstanding subparagraph (A), any inmate sentenced for an
offense specified in paragraph (6) or (16) of subdivision (c) of
Section 667.5 shall be released on parole for a period not exceeding
10 years, unless the parole authority for good cause waives parole
and discharges the inmate from the custody of the department.
(2) For an inmate sentenced under Section 1168, the period of
parole shall not exceed five years in the case of an inmate
imprisoned for any offense other than first or second degree murder
for which the inmate has received a life sentence, and shall not
exceed three years in the case of any other inmate, unless in either
case the parole authority for good cause waives parole and discharges
the inmate from custody of the department. This subdivision shall
also be applicable to inmates who committed crimes prior to July 1,
1977, to the extent specified in Section 1170.2.
(3) Notwithstanding paragraphs (1) and (2), for an offense for
which the inmate has received a life sentence pursuant to Section
667.61 or 667.71, the period of parole shall be five years. Upon the
request of the Department of Corrections and Rehabilitation, and on
the grounds that the paroled inmate may pose a substantial danger to
public safety, the Board of Parole Hearings shall conduct a hearing
to determine if the parolee shall be subject to a single additional
five-year period of parole. The board shall conduct the hearing
pursuant to the procedures and standards governing parole revocation.
The request for parole extension shall be made no less than 180 days
prior to the expiration of the initial five-year period of parole.
(4) The parole authority shall consider the request of any inmate
regarding the length of his or her parole and the conditions thereof.
(5) Upon successful completion of parole, or at the end of the
maximum statutory period of parole specified for the inmate under
paragraph (1), (2), or (3), as the case may be, whichever is earlier,
the inmate shall be discharged from custody. The date of the maximum
statutory period of parole under this subdivision and paragraphs
(1), (2), and (3) shall be computed from the date of initial parole
or from the date of extension of parole pursuant to paragraph (3) and
shall be a period chronologically determined. Time during which
parole is suspended because the inmate has absconded or has been
returned to custody as a parole violator shall not be credited toward
any period of parole unless the inmate is found not guilty of the
parole violation. However, except as provided in Section 3064, an
inmate subject to three years on parole shall not be retained under
parole supervision or in custody for a period longer than four years
from the date of his or her initial parole, and, except as provided
in Section 3064, an inmate subject to five years on parole shall not
be retained under parole supervision or in custody for a period
longer than seven years from the date of his or her initial parole or
from the date of extension of parole pursuant to paragraph (3).
(6) The Department of Corrections and Rehabilitation shall meet
with each inmate at least 30 days prior to his or her good time
release date and shall provide, under guidelines specified by the
parole authority, the conditions of parole and the length of parole
up to the maximum period of time provided by law. The inmate has the
right to reconsideration of the length of parole and conditions
thereof by the parole authority. The department or the Board of
Parole Hearings may impose as a condition of parole that an inmate
make payments on the inmate's outstanding restitution fines or orders
imposed pursuant to subdivision (a) or (c) of Section 13967 of the
Government Code, as operative prior to September 28, 1994, or
subdivision (b) or (f) of Section 1202.4.
(7) For purposes of this chapter, the Board of Parole Hearings
shall be considered the parole authority.
(8) The sole authority to issue warrants for the return to actual
custody of any state prisoner released on parole rests with the Board
of Parole Hearings, except for any escaped state inmate or any state
inmate released prior to his or her scheduled release date who
should be returned to custody, and Section 3060 shall apply.
(9) It is the intent of the Legislature that efforts be made with
respect to persons who are subject to subparagraph (C) of paragraph
(1) of subdivision (a) of Section 290 who are on parole to engage
them in treatment.
SEC. 13. Section 3001 of the Penal Code is amended to read:
3001. (a) Notwithstanding any other provision of law, when any
person referred to in paragraph (1) of subdivision (b) of Section
3000 who was not imprisoned for committing a violent felony, as
defined in subdivision (c) of Section 667.5, has been released on
parole from the state prison, and has been on parole continuously for
one year since release from confinement, within 30 days, that person
shall be discharged from parole, unless the Department of
Corrections and Rehabilitation recommends to the Board of Parole
Hearings that the person be retained on parole and the board, for
good cause, determines that the person will be retained.
Notwithstanding any other provision of law, when any person referred
to in paragraph (1) of subdivision (b) of Section 3000 who was
imprisoned for committing a violent felony, as defined in subdivision
(c) of Section 667.5, has been released on parole from the state
prison for a period not exceeding three years and has been on parole
continuously for two years since release from confinement, or has
been released on parole from the state prison for a period not
exceeding five years and has been on parole continuously for three
years since release from confinement, the department shall discharge,
within 30 days, that person from parole, unless the department
recommends to the board that the person be retained on parole and the
board, for good cause, determines that the person will be retained.
The board shall make a written record of its determination and the
department shall transmit a copy thereof to the parolee.
(b) Notwithstanding any other provision of law, when any person
referred to in paragraph (2) or (3) of subdivision (b) of Section
3000 has been released on parole from the state prison, and has been
on parole continuously for three years since release from confinement
or since extension of parole, the board shall discharge, within 30
days, the person from parole, unless the board, for good cause,
determines that the person will be retained on parole. The board
shall make a written record of its determination and the department
shall transmit a copy thereof to the parolee.
(c) Notwithstanding any other provision of law, when any person
referred to in subparagraph (B) of paragraph (1) of subdivision (b)
of Section 3000 has been released on parole from the state prison,
and has been on parole continuously for six years since release from
confinement, the board shall discharge, within 30 days, the person
from parole, unless the board, for good cause, determines that the
person will be retained on parole. The board shall make a written
record of its determination and the department shall transmit a copy
thereof to the parolee.
(d) In the event of a retention on parole, the parolee shall be
entitled to a review by the parole authority each year thereafter
until the maximum statutory period of parole has expired.
(e) The amendments to this section made during the 1987-88 Regular
Session of the Legislature shall only be applied prospectively and
shall not extend the parole period for any person whose eligibility
for discharge from parole was fixed as of the effective date of those
amendments.
SEC. 14. Section 3005 of the Penal Code, as amended by Chapter 55
of the Statutes of 2005, is amended to read:
3005. (a) The Department of Corrections and Rehabilitation, to
the maximum extent practicable and feasible, and subject to
legislative appropriation of necessary funds, shall ensure that all
parolees under active supervision and deemed to pose a high risk to
the public of committing violent sex crimes shall be placed on an
intensive and specialized parole supervision caseload.
(b) The department shall develop and, at the discretion of the
director and subject to an appropriation of the necessary funds, may
implement a plan for the implementation of relapse prevention
treatment programs and the provision of other services deemed
necessary by the department, in conjunction with intensive and
specialized parole supervision, to reduce the recidivism of high-risk
sex offenders.
(c) The department shall study the effects of the specialized
supervision caseload and of any plan implemented pursuant to this
section on recidivism rates of parolees. The study should pay
particular attention to the effectiveness of different treatment
models. The study shall be a two-year analysis completed by January
1, 2009, with an initial report to the Legislature on or before
January 1, 2010, and a final report on or before January 1, 2012.
SEC. 15. Section 3006 is added to the Penal Code, to read:
3006. (a) The Department of Corrections and Rehabilitation,
subject to the legislative appropriation of the necessary funds, may
establish and operate, after January 1, 2007, a specialized sex
offender treatment program for parolees the department deems to pose
a high risk to the public of committing violent sex crimes.
(b) (1) The program shall be based upon a relapse prevention
model, targeted primarily for the same offenders receiving more
intensive and specialized supervision under Section 3005, and shall
include referral to specialized services such as substance abuse
treatment, for offenders needing those specialized services.
(2) Parole agents may conduct group counseling sessions as part of
the program.
(3) The department may include other appropriate offenders in the
treatment program if doing so facilitates the effectiveness of the
treatment program.
(c) Except as otherwise required under Section 645, the department
may provide medication treatments for selected offenders as
determined by medical protocols and only on a voluntary basis and
with the offender's informed consent.
(d) The program shall be established with the assistance and
supervision of the staff of the department primarily by obtaining the
services of specially trained sex offender treatment providers.
SEC. 16. Section 3072 is added to the Penal Code, to read:
3072. (a) The Department of Corrections and Rehabilitation,
subject to the legislative appropriation of the necessary funds, may
establish and operate, after January 1, 2007, a specialized sex
offender treatment pilot program for inmates the department deems to
pose a high risk to the public of committing violent sex crimes.
(b) (1) The program shall be based upon the relapse prevention
model and shall include referral to specialized services, such as
substance abuse treatment, for offenders needing those specialized
services.
(2) Except as otherwise required under Section 645, the department
may provide medication treatments for selected offenders as
determined by medical protocols and only on a voluntary basis and
with the offender's informed consent.
(c) (1) The program shall be targeted primarily at adult sex
offenders who meet the following conditions:
(A) The offender is within two years of being released on parole.
(B) The offender has been clinically assessed.
(C) A review of the offender's criminal history indicates that the
offender poses a high risk of committing new sex offenses upon his
or her release on parole.
(D) The offender, based on his or her clinical assessment, may be
amenable to treatment.
(2) The department may include other appropriate
offenders in the treatment program if doing so facilitates the
effectiveness of the treatment program.
(d) The program under this section shall be established with the
assistance and supervision of the staff of the department primarily
by obtaining the services of specially trained sex offender treatment
provider, as best determined by the secretary of the department and
the Director of the Department of Mental Health.
(e) (1) The program under this section, upon full implementation,
shall provide for the treatment of 500 adult sex offenders at any
given time.
(2) To the maximum extent that is practical and feasible,
offenders participating in the pilot program shall be held in a
separate portion of a prison facility segregated from any non-sex
offenders held at the same prison, and treatment in the pilot program
shall be provided in program space segregated to the maximum extent
that is practical and feasible from program space for any non-sex
offenders held at the same prison.
(f) (1) The Department of Mental Health, by January 1, 2012, shall
provide a report evaluating the pilot program to the fiscal and
public safety policy committees of both houses of the Legislature,
and to the Joint Legislative Budget Committee.
(2) The report shall initially evaluate if the program under this
section is operating effectively, is having a positive clinical
effect on participating sex offenders, and is cost effective for the
state.
(3) In conducting its evaluation, the Department of Mental Health
shall consider the effects of treatment of offenders while in prison
and while subsequently on parole.
(4) The Department of Mental Health shall advise the Legislature
as to whether the program should be continued past its expiration
date, expanded, or concluded.
SEC. 17. 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.