BILL NUMBER: AB 50 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 10, 2006
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, 220, 269, 272, 288,
311.2, 311.4, 311.9, 311.11, 626.8, 667.1, 667.5, 667.51, 667.6,
667.61, 667.71, 1170.125, 1203.06, 1203.065, 1203.075,
3000, 3001, and 3005 of, and 3003,
3005, and 12022.75 of, to add Sections 626.75, 3006,
and 3072 3010.05, 3072, and 13887.5 to, the
Penal Code, to amend Sections 6604, 6604.1, and 6605 of, and to
repeal Section 6608 of, the Welfare and Institutions 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, every person who commits an assault with the
intent to commit a specified crime is punishable by imprisonment in
the state prison for 2, 4, or 6 years.
This bill would subject a person who commits an assault with the
intent to commit a specified crime while committing a first degree
burglary to imprisonment in the state prison for life with the
possibility of parole.
Under existing law, any person who commits a specified act upon a
child who is under 14 years of age and 10 or more years younger than
the person is punishable by imprisonment in the state prison for 15
years to life.
This bill would change the requisite age difference between the
person and the child from 10 years to 7 years. This bill would
clarify the specified acts the commission of which would trigger the
punishment. This bill would also impose consecutive sentences for
multiple offenses if the offenses involved separate victims or the
same victim on separate occasions, as specified.
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.
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.
Existing law, added by initiate acts that require amendments to
its provisions to be approved by 2/3 of the membership of both houses
of the Legislature, defines "violent felony" for purposes of various
provisions of the Penal Code.
This bill would clarify which offenses fall into the definition of
a violent felony.
Existing law provides for an enhanced prison term of 5 years for a
person convicted of committing any of several specified sex offenses
if the person has a prior conviction for any several other specified
sex offense. The enhanced term for a person with 2 or more previous
convictions of any of the other specified sex offenses is either 10
years or 15 years to life. The enhanced term does not apply if that
person has not been in custody for, or committed a felony during, at
least 10 years between the instant and prior offense. Existing law
requires the person to receive credits for time served or worked, to
reduce his or her sentence.
This bill would expand the types of sex crimes to which these
provisions apply, delete the 10 year exception, and would eliminate
the possibility of the person receiving credit to reduce his or her
sentence.
Under existing law, persons who are convicted of committing
certain sex offenses who have previously been convicted of other sex
offenses, including habitual sexual offenders, as defined, or who are
convicted of certain sex offenses during the commission of another
offense, are eligible for credit to reduce the minimum term imposed.
This bill would eliminate that eligibility for those persons.
Under existing law, the punishment for a conviction of certain sex
offenses is 25 years to life if the offense was committed in the
course of a kidnapping or burglary, the victim was tortured, or the
defendant had previously been convicted of one of the specified sex
offenses.
This bill would add continuous sexual abuse of a child to those
sex offenses.
Under existing law, the court has the authority to order an action
dismissed or to strike a prior conviction for purposes of sentencing
a defendant.
This bill would prohibit a court from striking an allegation,
admission, or finding of a prior conviction for, and would prohibit
granting probation to, or suspending the execution or imposition of
sentence for defendants who are convicted of certain sex offenses.
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.
This bill would declare legislative intent to create a period of
parole for offenders found to be sexually violent predators after
those offenders are released from their commitment to the Department
of Mental Health in order to supervise the offenders participation in
ongoing treatment programs.
Existing law establishes a 5-year period of parole for inmates
serving a specified life sentence.
This bill would increase the period of parole from 5 years to 10
years.
Existing law requires the Board of Parole Hearings to discharge a
person from parole after the person serves a specified period of time
on parole unless the board finds good cause to retain the person on
parole.
This bill would require the board to discharge a person paroled
from a specified life term after 6 years.
Existing law authorizes the Department of Corrections and
Rehabilitation to use Global Positioning Systems to monitor certain
parolees.
This bill would appropriate $8,000,000 from the General Fund to
the Department of Corrections and Rehabilitation for the purchase of
global positioning systems to monitor parolees who were convicted of
violent or sexual offenses and are deemed to be at high risk to
reoffend.
Existing law provides for an enhanced penalty of 3 years for any
person who administers a controlled substance to another person
against his or her will, for the purpose of committing a felony.
This bill would create an additional enhancement of 5 years if
that felony is any of several specified sex offenses.
Existing law authorizes counties to establish Sexual Assault
Felony Enforcement (SAFE) teams to reduce violent sexual assaults
through proactive surveillance of habitual offenders.
This bill would appropriate $15,000,000 from the General Fund for
the funding of SAFE teams, as specified.
Under existing law, if a person is determined to be a sexually
violent predator, he or she is committed to the State Department of
Mental Health for 2 years for appropriate treatment and confinement.
Confinement may not be extended except by court order.
This bill would change that commitment to an indeterminate term,
and would require an annual report to be made about the
appropriateness of conditionally releasing the person to a less
restrictive environment.
Existing law establishes a procedure for a person committed as a
sexually violent predator to petition a court for a conditional
release or discharge.
This bill would repeal that provision and provide procedures
governing when and how the person is entitled to a trial on the
appropriateness of a conditional release or discharge.
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 2/3 . Appropriation:
no yes . 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 the 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 220 of the Penal Code
is amended to read:
220. Every (a)
Except as provided in subdivision (b), any person who assaults
another with intent to commit mayhem, rape, sodomy, oral copulation,
or any violation of Section 264.1, 288 or 289 is punishable
shall be punished by imprisonment in the state
prison for two, four, or six years.
(b) Any person who, in the commission of a burglary of the first
degree, as defined in subdivision (a) of Section 460, assaults
another with intent to commit rape, sodomy, oral copulation, or any
violation of Section 264.1, 288, or 289 shall be punished by
imprisonment in the state prison for life with the possibility of
parole.
SEC. 4. Section 269 of the Penal Code
is amended to read:
269. (a) Any person who commits any of the following acts upon a
child who is under 14 years of age and 10 7
or more years younger than the person is guilty of aggravated
sexual assault of a child:
(1) A Rape, in violation of
paragraph (2) of subdivision (a) of Section 261.
(2) A Rape or sexual
penetration, in concert, in violation of Section
264.1.
(3) Sodomy, in violation of paragraph (2) or (3) of
subdivision (c), subdivision (d) or Section 286 , when
committed by force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person
.
(4) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) of Section 288a ,
when committed by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person
.
(5) A Sexual penetration, in
violation of subdivision (a) of Section 289.
(b) Any person who violates this section is guilty of a felony and
shall be punished by imprisonment in the state prison for 15 years
to life.
(c) The court shall impose a consecutive sentence for each offense
that results in a conviction under this section if the offenses
involve separate victims or involve the same victim on separate
occasions, as defined in subdivision (d) of Section 667.6.
SEC. 3. SEC. 5. 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 of any person under the age
of 18 years 18 years of age 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. SEC. 6. 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
victim 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. SEC. 7. 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. SEC. 8. 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 legal 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 legal 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. SEC. 9. 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. SEC. 10. 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.
(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. SEC. 11. 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 legal 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 legal 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. SEC. 12. 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. 13. Section 667.1 of the Penal
Code is amended to read:
667.1. Notwithstanding subdivision (h) of Section 667, for all
offenses committed on or after the effective date of this act, all
references to existing statutes in subdivisions (c) to (g),
inclusive, of Section 667, are to those statutes as they existed on
the effective date of this act, including amendments made to those
statutes by this act the act enacted during
the 2005- 06 Regular Session that amended this section
.
SEC. 14. Section 667.5 of the Penal
Code is amended to read:
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person
as defined in subdiv ision (c) or (d) of
Section 286 .
(5) Oral copulation by force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or
another person , as defined in subdivision (c) or (d)
of Section 288a .
(6) Lewd acts on a child under the age of 14 years
or lascivious acts, as defined in
subdivision (a) or (b) of Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7 or 12022.9 on or after July
1, 1977, or as specified prior to July 1, 1977, in Sections 213,
264, and 461, or any felony in which the defendant uses a firearm
which use has been charged and proved as provided in Section 12022.5
or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) The offense Sexual
penetration, as defined in subdivision (a) or (j) of
Section 289 where the act is accomplished against the
victim's will by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person
.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit mayhem, rape,
sodomy, or oral copulation a specified felony ,
in violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) A Rape, spousal rape, or sexual
penetration, in concert, in violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418.
The Legislature finds and declares that these specified crimes
merit special consideration when imposing a sentence to display
society's condemnation for these extraordinary crimes of violence
against the person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director
Secretary of the Department of Corrections and
Rehabilitation is incarcerated at a facility operated by the
Department of the Youth Authority Division of
Juvenile Facilities , that incarceration shall be deemed to be
a term served in state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
SEC. 15. Section 667.51 of the Penal
Code is amended to read:
667.51. (a) Any person who is found guilty
convicted of violating Section 288 or 288.5
shall receive a five-year enhancement for a prior conviction of an
offense listed in subdivision (b) , provided that no
additional term shall be imposed under this subdivision for any
prison term served prior to a period of 10 years in which the
defendant remained free of both prison custody and the commission of
an offense that results in a felony conviction .
(b) Section 261, 262, 264.1, 269, 285, 286,
288, 288a, 288.5, or 289, or any offense committed in another
jurisdiction that includes all of the elements of any of the offenses
set forth specified in this
subdivision.
(c) Section 261, 264.1, 286, 288, 288a, 288.5, or 289, or any
offense committed in another jurisdiction that includes all of the
elements of any of the offenses set forth in this subdivision.
(d)
(c) A violation of Section 288 or 288.5 by a
person who has been previously convicted two or more times of an
offense listed specified in subdivision
(c) is punishable as a felony (b) shall be
punished by imprisonment in the state prison for 15 years to
life. However, if the two or more prior convictions were for
violations of Section 288, this subdivision is applicable only if
the current violation or at least one of the prior convictions is for
an offense other than a violation of subdivision (a) of Section 288.
For purposes of this subdivision, a prior conviction is required to
have been for charges brought and tried separately. The provisions of
Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1
of Part 3 shall apply to reduce any minimum term in a state prison
imposed pursuant to this section, but that person shall not otherwise
be released on parole prior to that time.
SEC. 16. Section 667.6 of the Penal
Code is amended to read:
667.6. (a) Any person who is found guilty of violating
paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261,
paragraph (1), (4), or (5) of subdivision (a) of Section 262, Section
264.1, subdivision (b) of Section 288, Section 288.5 or subdivision
(a) of Section 289, of committing sodomy in violation of subdivision
(k) of Section 286, of committing oral copulation in violation of
subdivision (k) of Section 288a, or of committing 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 convicted of an
offense specified in subdivision (e) and who has been
convicted previously of any of those offenses shall receive a
five-year enhancement for each of those prior convictions
provided that no enhancement shall be imposed under this subdivision
for any conviction occurring prior to a period of 10 years in which
the person remained free of both prison custody and the commission of
an offense which results in a felony conviction. In addition to the
five-year enhancement imposed under this subdivision, the court also
may impose a fine not to exceed twenty thousand dollars ($20,000) for
anyone sentenced under these provisions. The fine imposed and
collected pursuant to this subdivision 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 established pursuant to
Section 13837 .
(b) Any person who is convicted of an offense specified
in subdivision (a) (e) and who has
served two or more prior prison terms as defined in Section 667.5 for
any offense specified in subdivision (a), of
those offenses shall receive a 10-year enhancement for each of
those prior terms provided that no additional enhancement
shall be imposed under this subdivision for any prison term served
prior to a period of 10 years in which the person remained free of
both prison custody and the commission of an offense which results in
a felony conviction. In addition to the 10-year enhancement imposed
under this subdivision, the court also may impose a fine not to
exceed twenty thousand dollars ($20,000) for any person sentenced
under this subdivision. The fine imposed and collected pursuant to
this subdivision 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 established pursuant to Section 13837 .
(c) In lieu of the term provided in Section 1170.1, a full,
separate, and consecutive term may be imposed for each violation of
Section 220, other than an assault with intent to commit
mayhem, provided that the person has been convicted previously of
violating Section 220 for an offense other than an assault with
intent to commit mayhem, paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261, paragraph (1), (4), or (5) of
subdivision (a) of Section 262, Section 264.1, subdivision (b) of
Section 288, Section 288.5 or subdivision (a) of Section 289, of
committing sodomy in violation of subdivision (k) of Section 286, of
committing oral copulation in violation of subdivision (k) of Section
288a, or of committing 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
whether or not the crimes were committed during a single transaction
and offense specified in subdivision (e) if the crimes
involved the same victim on the same occasion. A term may be imposed
consecutively pursuant to this subdivision if a person is convicted
of at least on offense specified in subdivision (e) . If the
term is imposed consecutively pursuant to this subdivision, it shall
be served consecutively to any other term of imprisonment, and shall
commence from the time the person otherwise would have been released
from imprisonment. The term shall not be included in any
determination pursuant to Section 1170.1. Any other term imposed
subsequent to that term shall not be merged therein but shall
commence at the time the person otherwise would have been released
from prison.
(d) A full, separate, and consecutive term shall be
served imposed for each violation of
Section 220, other than an assault with intent to commit mayhem,
provided that the person has been convicted previously of violating
Section 220 for an offense other than an assault with intent to
commit mayhem, paragraph (2), (3), (6), or (7) of subdivision (a) of
Section 261, paragraph (1), (4), or (5) of subdivision (a) of Section
262, Section 264.1, subdivision (b) of Section 288, subdivision (a)
of Section 289, of committing sodomy in violation of subdivision (k)
of Section 286, of committing oral copulation in violation of
subdivision (k) of Section 288a, or of committing 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 an offense specified in
subdivision (e) if the crimes involve separate victims or
involve the same victim on separate occasions.
In determining whether crimes against a single victim were
committed on separate occasions under this subdivision, the court
shall consider whether, between the commission of one sex crime and
another, the defendant had a reasonable opportunity to reflect upon
his or her actions and nevertheless resumed sexually assaultive
behavior. Neither the duration of time between crimes, nor whether or
not the defendant lost or abandoned his or her opportunity to
attack, shall be, in and of itself, determinative on the issue of
whether the crimes in question occurred on separate occasions.
The term shall be served consecutively to any other term of
imprisonment and shall commence from the time the person otherwise
would have been released from imprisonment. The term shall not be
included in any determination pursuant to Section 1170.1. Any other
term imposed subsequent to that term shall not be merged therein but
shall commence at the time the person otherwise would have been
released from prison.
(e) This section shall apply to the following offenses:
(1) Rape, in violation of paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261.
(2) Spousal rape, in violation of paragraph (1), (4), or (5) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration ,in concert, in
violation of Section 264.1.
(4) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d) or (k), of Section 286.
(5) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) or (k), of Section 288a.
(8) Sexual penetration, in violation of subdivision (a) of (g) or
Section 289.
(9) As a present offense under
subdivision (c) or (d), assault with intent to commit a specified
sexual offense, in violation of Section 220.
(10) As a prior conviction under subdivision (a) or (b), an
offense committed in another jurisdiction that includes all of the
elements of an offense specified in this subdivision.
(f) In addition to any enhancement imposed pursuant to subdivision
(a) or (b), the court may impose a fine not to exceed twenty
thousand dollars ($20,000). The fine imposed and collected pursuant
to this subdivision 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 established pursuant to Section 13837.
(e)
(g) If the court orders a fine to be imposed pursuant
to subdivision (a) or (b) this section
, 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.
SEC. 11. SEC. 17. Section 667.61 of
the Penal Code is amended to read:
667.61. (a) A Any 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). 25 years to life.
(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). 15 years to life.
(c) This section shall apply to any of the following offenses:
(1) A Rape, in violation of
paragraph (2) or (6) of subdivision (a) of Section 261.
(2) A Spousal rape, in violation of
paragraph (1) or (4) of subdivision (a) of Section 262.
(3) A Rape, spousal rape, or sexual
penetration, in concert, in violation of Section 264.1.
(4) A lewd or lascivious act, in violation of
subdivision (b) of Section 288.
(5) A Continuous sexual abuse of a child,
in violation of subdivision (a) of Section
288.5.
(6) A Sexual penetration, in
violation of subdivision (a) of Section 289.
(7) Sodomy or oral copulation in violation of
paragraph (2) or (3) of subdivision (c) 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 lewd or lascivious act, in violation of
subdivision (a) of Section 288 , unless the defendant
qualifies for probation under subdivision (c) of Section 1203.066.
.
(9) Oral copulation in violation of paragraph (3) of subdivision
(c) or subdivision (d) of Section 288a.
(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 of the first degree , as defined
in subdivision (a) of Section 460, with intent to commit an offense
specified in subdivision (c).
(5) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (2), (3), or (4) of this
subdivision.
(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.
(8) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (1), (2), (3), (4), (6), or
(7) of this subdivision.
(f) If only the minimum number of circumstances specified in
subdivision (d) or (e) which that 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) , whichever is greater,
rather than being used to impose the punishment authorized under any
other provision of law, unless another provision of
law provides for a greater penalty or the punishment under
another provision of law may be imposed in addition to the
punishment provided by this section . 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 provision of 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.
(g) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any of the circumstances specified in subdivision (d) or (e) for any
person who is subject to punishment under this section.
(h) Probation Notwithstanding any other
provision of law, 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.
(i) For any offense specified in paragraphs (1) to (7), inclusive,
of subdivision (c), the court shall impose a consecutive sentence
for each offense that results in a conviction under this section if
the crimes involve separate victims or involve the same victim on
separate occasions as defined in subdivision (d) of Section 667.6.
(j) The penalties provided in this section shall apply only if the
existence of any circumstance specified in subdivision (d) or (e) is
alleged in the accusatory pleading pursuant to this section and
either admitted by the defendant in open court or found to be true by
the trier of fact.
SEC. 18. Section 667.71 of the Penal
Code is amended to read:
667.71. (a) For the purpose of this section, a habitual sexual
offender is a person who has been previously convicted of one or more
of the offenses listed specified in
subdivision (c) and who is convicted in the present proceeding of one
of those offenses.
(b) A habitual sexual offender is punishable
shall be punished by imprisonment in the state prison for
25 years to life. Article 2.5 (commencing with Section 2930)
of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum
term of 25 years in the state prison imposed pursuant to this
section. However, in no case shall the minimum term of 25 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 years in the state prison.
(c) This section shall apply to any of the following offenses:
(1) A Rape, in violation
of paragraph (2) of subdivision (a) of Section 261.
(2) A Spousal rape, in violation of
paragraph (1) of subdivision (a) of Section 262.
(3) A Rape, spousal rape, or sexual
penetration, in concert, in violation of Section 264.1.
(4) A lewd or lascivious act, in violation of
subdivision (a) or (b) of Section 288.
(5) A Sexual penetration, in
violation of subdivision (a) of Section 289.
(6) A Continuous sexual abuse of a child,
in violation of Section 288.5.
(7) A Sodomy, in violation of
subdivision (c) or (d) of Section 286 by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person .
(8) A violation of subdivision (d) of Section 286.
(9) A
(8) Oral copulation, in violation of
subdivision (c) or (d) of Section 288a by force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person .
(10) A
(9) Kidnapping, in violation of
subdivision (b) of Section 207.
(11) A
(10) Kidnapping, in violation of former
subdivision (d) of Section 208 (kidnapping to commit specified sex
offenses).
(12)
(11) Kidnapping in violation of subdivision (b) of
Section 209 with the intent to commit rape, spousal
rape, oral copulation, or sodomy or sexual penetration in violation
of Section 289 a specified offense .
(13) A
(12) Aggravated sexual assault of a
child, in violation of Section 269.
(14)
(13) An offense committed in another jurisdiction that
has includes all of the
elements of an offense specified in paragraphs (1) to (13),
inclusive, of this subdivision.
(d) Notwithstanding Section 1385 or any other provision of
law, the court shall not strike any allegation, admission, or finding
of any prior conviction specified in subdivision (c) for any person
who is subject to punishment under this section.
(e) Notwithstanding any other provision of law, 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.
(f) This section shall apply only if the defendant's
status as a habitual sexual offender is alleged in the
information accusatory pleading , and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt
is established by a plea of guilty or nolo contendere or by trial by
court sitting without a jury trier of fact .
SEC. 19. Section 1170.125 of the Penal
Code is amended to read:
1170.125. Notwithstanding Section 2 of Proposition 184, as
adopted at the November 8, 1994 General Election, for all offenses
committed on or after the effective date of this act, all references
to existing statutes in Section 1170.12 are to those statutes as they
existed on the effective date of this act, including amendments made
to those statutes by this act the act
enacted during the 2005- 06 Regular Session that amended
this section .
SEC. 20. Section 1203.06 of the Penal
Code is amended to read:
1203.06.
Notwithstanding Section 1203:
(a) Probation
(a) Notwithstanding any other
provision of law, probation shall not be granted to, nor shall
the execution or imposition of sentence be suspended for, nor
shall a finding bring the defendant within this section be stricken
pursuant to Section 1385 for, any of the following persons:
(1) Any person who personally used a firearm during the commission
or attempted commission of any of the following crimes:
(A) Murder.
(B) Robbery, in violation of Section 211.
(C) Kidnapping, in violation of Section 207 , 209, or 209.5
.
(D) Kidnapping in violation of Section 209
A lewd or lascivious act, in violation of Section 288
.
(E) Burglary of the first degree, as defined in Section 460.
(F) Except as provided in Section 1203.065, rape
Rape, in violation of paragraph (2) of
subdivision (a) of Section 261 , 262, or 264.1 .
(G) Assault with intent to commit rape or sodomy
a specified sexual offense , in violation of
Section 220.
(H) Escape, in violation of Section 4530 or 4532.
(I) Carjacking, in violation of Section 215.
(J) Any person convicted of aggravated
Aggravated mayhem in violation of Section 205.
(K) Torture, in violation of Section 206.
(L) Kidnapping, in violation of Section 209.5
Continuous sexual abuse of a child, in violation of
Section 288.5 .
(M) A felony violation of Section 136.1 or 137.
(N) Sodomy, in violation of Section 286.
(O) Oral copulation, in violation of Section 288a.
(P) Sexual penetration, in violation of Section 289 or 264.1.
(Q) Aggravated sexual assault of a child, in violation of Section
269.
(2) Any person previously convicted of a felony specified in
subparagraphs (A) to (L), inclusive, of paragraph
(1), or assault with intent to commit murder under former Section
217, who is convicted of a subsequent felony and who was personally
armed with a firearm at any time during its commission or attempted
commission or was unlawfully armed with a firearm at the time of his
or her arrest for the subsequent felony.
(3) Aggravated arson, in violation of Section 451.5.
(b) (1) The existence of any fact which
that would make a person ineligible for probation under
subdivision (a) shall be alleged in the accusatory pleading, and
either admitted by the defendant in open court, or found to be true
by the jury trying the issue of guilt, by the court where
guilt is established by plea of guilty or nolo contendere, or by
trial by the court sitting without a jury trier of
fact .
(2) This subdivision does not prohibit the adjournment of criminal
proceedings pursuant to Division 6 (commencing with Section 6000) of
the Welfare and Institutions Code.
(3)
(2) As used in subdivision (a), "used a firearm" means
to display a firearm in a menacing manner, to intentionally fire it,
or to intentionally strike or hit a human being
with it , or to use it in any manner that qualifies under
Section 12022.5 .
(4)
(3) As used in subdivision (a), "armed with a firearm"
means to knowingly carry or have available for use a
firearm as a means of offense or defense.
SEC. 21. Section 1203.065 of the Penal
Code is amended to read:
1203.065. (a) Notwithstanding any other provision of
law, probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, any person who is convicted
of violating paragraph (2) or (6) of subdivision (a) of
Section 261, Section 264.1, 266h, 266i, or 266j,
or 269 or paragraph (2) or (3) of subdivision (c) or subdivision
(d) of Section 286 or 288a, or subdivision (a) of Section 289,
of committing 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,
or of violating or
subdivision (c) of Section 311.4.
(b) (1) Except in unusual cases where the
interests of justice would best be served if the person is granted
probation, probation shall not be granted to any person who is
convicted of a violation of violating
paragraph (7) of subdivision (a) of Section 261, subdivision (k) of
Section 286, subdivision (k) of Section 288a, or Section 220 for
assault with intent to commit any of the following: rape,
sodomy, oral copulation, or any violation of Section 264.1,
subdivision (b) of Section 288, or Section 289 a
specified sexual offense .
(2) When probation is granted, the court
shall specify on the record and shall enter on the minutes the
circumstances indicating that the interests of justice would best be
served by the disposition.
SEC. 22. Section 1203.075 of the Penal
Code is amended to read:
1203.075.
Notwithstanding the provisions of Section 1203:
(a) Probation
(a) Notwithstanding any other
provision of law, probation shall not be granted to, nor shall
the execution or imposition of sentence be suspended for, nor shall a
finding bringing the defendant within this section be stricken
pursuant to Section 1385 for, any person who , with the
intent to inflict the injury , as defined in Section
12022.7, personally inflicts great bodily injury on the person
of another in the commission or attempted commission of any of the
following crimes:
(1) Murder.
(2) Robbery, in violation of Section 211.
(3) Kidnapping, in violation of Section 207 , 209, or 209.5
.
(4) Kidnapping, in violation of Section 209
A lewd or lascivious act, in violation of Section 288 .
(5) Burglary of the first degree, as defined in Section 460.
(6) Rape, in violation of paragraph (2) or (6) of
subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision
(a) of Section 262 Section 261, 262, or 264.1 .
(7) Assault with intent to commit rape or sodomy
a specified sexual offense , in violation of
Section 220.
(8) Escape, in violation of Section 4530 or 4532.
(9) A Sexual penetration, in
violation of subdivision (a) of Section 289.
(10) Sodomy, in violation of Section 286.
(11) Oral copulation, in violation of Section 288a.
(12) Carjacking, in violation of Section 215.
(13) Kidnapping, in violation of Section 209.5
Continuous sexual abuse of a child, in violation of Section
288.5 .
(14) Aggravated sexual assault of a child, in violation of Section
269.
(b) (1) The existence of any
fact which that would make a person
ineligible for probation under subdivision (a) shall be alleged in
the accusatory pleading, and either admitted by the defendant in open
court, or found to be true by the jury trying the issue of
guilt or by the court where guilt is established by a plea of guilty
or nolo contendere or by a trial by the court sitting without a jury
trier of fact .
(2) This subdivision does not prohibit the adjournment of criminal
proceedings pursuant to Division 3 (commencing with Section 3000) or
Division 6 (commencing with Section 6000) of the Welfare and
Institutions Code.
(3) As used in subdivision (a), "great bodily injury" means "great
bodily injury" as defined in Section 12022.7.
SEC. 12. SEC. 23. 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) The Legislature finds and declares that a
large number of offenders who are committed to the Department of
Mental Health as a sexually violent predators are not participating
in the required treatment program and some have been
unconditionally discharge from the program and release into the
community without supervision. It is the intent of the Legislature
that these offenders be placed on a period of parole under the
jurisdiction of the Department of Corrections and Rehabilitation. It
is the intent of the Legislature, th at in order to
encourage offenders to participate in treatment, those offenders who
are conditionally released and unconditionally discharged with the
recommendation and concurrence of the Director of the Department of
Mental Health shall not be placed on a period of parole.
(5) 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. toll that person's period
of parole until that person is discharged from the custody of the
Department of Mental Health, at which time the period of parole, or
any remaining portion thereof, shall begin to run. However, parole
shall not be tolled, discharged, or otherwise affected, if the person
committed as a sexually violent predator participated in treatment
as required by the Director of the Department of Mental Health and
was conditionally released and unconditionally discharged with the
recommendation and concurrence of the director.
(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. 10 years.
(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). the period of
parole is subject to the following:
(A) Except as provided in Section 3064, an inmate subject to three
years on parole may 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.
(B) Except as provided in Section 3064, an inmate subject to five
years on parole may 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.
(C) Except as provided in Section 3064, an inmate subject to 10
years on parole may not be retained under parole supervisor or in
custody for a period longer than 15 years from the date of his or her
initial parole.
(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 inmate
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. SEC. 24. 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. SEC. 25. 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. 26. Section 3003 of the Penal Code
is amended to read:
3003. (a) Except as otherwise provided in this section, an inmate
who is released on parole shall be returned to the county that was
the last legal residence of the inmate prior to his or her
incarceration.
For purposes of this subdivision, "last legal residence" shall not
be construed to mean the county wherein the inmate committed an
offense while confined in a state prison or local jail facility or
while confined for treatment in a state hospital.
(b) Notwithstanding subdivision (a), an inmate may be returned to
another county if that would be in the best interests of the public.
If the Board of Prison Terms Parole Hearings
setting the conditions of parole for inmates sentenced pursuant
to subdivision (b) of Section 1168, as determined by the parole
consideration panel, or the Department of Corrections and
Rehabilitation setting the conditions of parole for inmates
sentenced pursuant to Section 1170, decides on a return to another
county, it shall place its reasons in writing in the parolee's
permanent record and include these reasons in the notice to the
sheriff or chief of police pursuant to Section 3058.6. In making its
decision, the paroling authority shall consider, among others, the
following factors, giving the greatest weight to the protection of
the victim and the safety of the community:
(1) The need to protect the life or safety of a victim, the
parolee, a witness, or any other person.
(2) Public concern that would reduce the chance that the inmate's
parole would be successfully completed.
(3) The verified existence of a work offer, or an educational or
vocational training program.
(4) The existence of family in another county with whom the inmate
has maintained strong ties and whose support would increase the
chance that the inmate's parole would be successfully completed.
(5) The lack of necessary outpatient treatment programs for
parolees receiving treatment pursuant to Section 2960.
(c) The Department of Corrections, in determining an out-of-county
commitment, shall give priority to the safety of the community and
any witnesses and victims.
(d) In making its decision about an inmate who participated in a
joint venture program pursuant to Article 1.5 (commencing with
Section 2717.1) of Chapter 5, the paroling
parole authority shall give serious consideration to releasing
him or her to the county where the joint venture program employer is
located if that employer states to the paroling authority that he or
she intends to employ the inmate upon release.
(e) (1) The following information, if available, shall be released
by the Department of Corrections and Rehabilitation to
local law enforcement agencies regarding a paroled inmate who is
released in their jurisdictions:
(A) Last, first, and middle name.
(B) Birth date.
(C) Sex, race, height, weight, and hair and eye color.
(D) Date of parole and discharge.
(E) Registration status, if the inmate is required to register as
a result of a controlled substance, sex, or arson offense.
(F) California Criminal Information Number, FBI number, social
security number, and driver's license number.
(G) County of commitment.
(H) A description of scars, marks, and tattoos on the inmate.
(I) Offense or offenses for which the inmate was convicted that
resulted in parole in this instance.
(J) Address, including all of the following information:
(i) Street name and number. Post office box numbers are not
acceptable for purposes of this subparagraph.
(ii) City and ZIP Code.
(iii) Date that the address provided pursuant to this subparagraph
was proposed to be effective.
(K) Contact officer and unit, including all of the following
information:
(i) Name and telephone number of each contact officer.
(ii) Contact unit type of each contact officer such as units
responsible for parole, registration, or county probation.
(L) A digitized image of the photograph and at least a single
digit fingerprint of the parolee.
(M) A geographic coordinate for the parolee's residence location
for use with a Geographical Information System (GIS) or comparable
computer program.
(2) The information required by this subdivision shall come from
the statewide parolee database. The information obtained from each
source shall be based on the same timeframe.
(3) All of the information required by this subdivision shall be
provided utilizing a computer-to-computer transfer in a format usable
by a desktop computer system. The transfer of this information shall
be continually available to local law enforcement agencies upon
request.
(4) The unauthorized release or receipt of the information
described in this subdivision is a violation of Section 11143.
(f) Notwithstanding any other provision of law, an inmate who is
released on parole shall not be returned to a location within 35
miles of the actual residence of a victim of, or a witness to, a
violent felony as defined in paragraphs (1) to (7), inclusive, of
subdivision (c) of Section 667.5 or a felony in which the defendant
inflicts great bodily injury on any person other than an accomplice
that has been charged and proved as provided for in Section 12022.53,
12022.7, or 12022.9, if the victim or witness has requested
additional distance in the placement of the inmate on parole, and if
the Board of Prison Terms Parole Hearings
or the Department of Corrections and Rehabilitation
finds that there is a need to protect the life, safety, or well-being
of a victim or witness.
(g) (1) Notwithstanding any other law, an inmate who is released
on parole for any violation of Section 288 or 288.5 shall not be
placed or reside, for the duration of his or her period of parole,
within one-quarter mile of any public or private school, including
any or all of kindergarten and grades 1 to 8, inclusive.
(2) Notwithstanding any other law, an inmate who is released on
parole for a violation of Section 288 or 288.5 whom the Department of
Corrections and Rehabilitation determines poses a high risk to the
public shall not be placed or reside, for the duration of his or her
parole, within one-half mile of any public or private school
including any or all of kindergarten and grades 1 to 12, inclusive.
(h) Notwithstanding any
other law, an inmate who is released on parole for an offense
involving stalking shall not be returned to a location within 35
miles of the victim's actual residence or place of employment if the
victim or witness has requested additional distance in the placement
of the inmate on parole, and if the Board of Prison Terms
Parole Hearings or the Department of Corrections
and Rehabilitation finds that there is a need to protect
the life, safety, or well-being of the victim.
(i)
(h) The authority shall give consideration to the
equitable distribution of parolees and the proportion of
out-of-county commitments from a county compared to the number of
commitments from that county when making parole decisions.
(j)
(i) An inmate may be paroled to another state pursuant
to any other law.
(k)
(j) (1) Except as provided in paragraph (2), the
Department of Corrections and Rehabilitation shall be the
agency primarily responsible for, and shall have control over, the
program, resources, and staff implementing the Law Enforcement
Automated Data System (LEADS) in conformance with subdivision (e).
(2) Notwithstanding paragraph (1), the Department of Justice shall
be the agency primarily responsible for the proper release of
information under LEADS that relates to fingerprint cards.
SEC. 15. SEC. 27. 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. 28. Section 3010.05 is added to the
Penal Code , to read:
3010.05. (a) The sum of eight million dollars ($8,000,000) is
hereby appropriated from the General Fund to the Department of
Corrections and Rehabilitation for use in 2006-07 fiscal General Fund
to the Department of Corrections and Rehabilitation for use in the
2006-07 fiscal year to add 500 Global Positioning System devices to
track and monitor the parolees who pose the highest risk to public
safety and who have been convicted of sexual or violent offenses and
are assessed to be a high-risk to reoffend.
(b) There shall be a three-year plan to add 2,000 Global
Positioning System devices, bringing the total number of Global
Positioning System devices available for parolee monitoring up to
2,500 by 2008, subject to the legislative appropriation of the
necessary funds.
(c) Parole agents supervising offenders with Global Positioning
System devices shall have no more than 20 active cases requiring
supervision.
SEC. 16. SEC. 29. 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. 30. Section 12022.75 of the Penal
Code is amended to read:
12022.75. Any (a)
Except as provided in subdivision (b), any person who, for the
purpose of committing a felony, administers by injection, inhalation,
ingestion, or any other means, any controlled substance listed in
Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety
Code, against the victim's will by means of force, violence, or fear
of immediate and unlawful bodily injury to the victim or another
person, shall, in addition and consecutive to the penalty provided
for the felony or attempted felony of which he or she has been
convicted, be punished by an additional term of three years.
(b) (1) Any person who, in the commission or attempted commission
of any offense specified in paragraph (2), administers any controlled
substance listed in Section 11054, 11055, 11056, 11057, or 11058 of
the Health and Safety Code to the victim shall be punished by an
additional and consecutive term of imprisonment in the state prison
for five years.
(2) This subdivision shall apply to the following offenses:
(A) Rape, in violation of paragraph (3) or (4) of subdivision (a)
of Section 261.
(B) Sodomy ,in violation of subdivision (f) or (i) of Section 286.
(C) Oral copulation, in violation of subdivision (f) or (i) of
Section 288a.
(D) Sexual penetration, in violation of subdivision (d) or (e) of
Section 289.
(E) Any offense specified in subdivision (c) of Section 667.61.
SEC. 31. Section 13887.5 is added to the
Penal Code , to read:
13887.5. (a) The sum of fifteen million dollars ($15,000,000) is
hereby appropriated from the General Fund to the Controller for
distributed to regional SAFE team programs.
(b) A county may not use funds provided pursuant to this act to
supplant any other sources of funding.
(c) The funds appropriated by this act shall be allocated by the
Controller to regional SAFE team programs in accordance with the
proportionate share of sex offender registrants residing within a
SAFE team jurisdiction, as determined by the Department of Justice.
(d) By accepting the funds provided by this act, local entities
agree to report in writing to the Department of Finance on or before
August 15, 2007. The Department of Finance shall make the report
available to the Legislature. The
report shall include, but not be limited to, the data
measuring the objectives identified in Section 13887.3 of the Penal
Code.
(e) Local entities that receive funds pursuant to this act and
that either do not agree to the reporting requirements or do not
report within the specified time shall return the grant money
provided by the Controller within 30 days after the due date of the
report. Any returned funds shall revert to the General Fund.
SEC. 32. Section 6604 of the Welfare
and Institutions Code is amended to read:
6604. The court or jury shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator. If the
court or jury is not satisfied beyond a reasonable doubt that the
person is a sexually violent predator, the court shall direct that
the person be released at the conclusion of the term for which he or
she was initially sentenced, or that the person be unconditionally
released at the end of parole, whichever is applicable. If the court
or jury determines that the person is a sexually violent predator,
the person shall be committed for two years
an indeterminate term to the custody of the State Department of
Mental Health for appropriate treatment and confinement in a secure
facility designated by the Director of Mental Health, and the person
shall not be kept in actual custody longer than two years unless a
subsequent extended commitment is obtained from the court incident to
the filing of a petition for extended commitment under this article
or unless the term of commitment changes pursuant to subdivision (e)
of Section 6605. Time spent on conditional release shall not count
toward the two-year term of commitment, unless the person is placed
in a locked facility by the conditional release program, in which
case the time in a locked facility shall count toward the two-year
term of commitment. The facility shall be located on the grounds of
an institution under the jurisdiction of the Department of
Corrections.
SEC. 33. Section 6604.1 of the Welfare
and Institutions Code is amended to read:
6604.1. (a) The two-year indeterminate
term of commitment provided for in Section 6604 shall commence
on the date upon which the court issues the initial order of
commitment pursuant to that section. The initial two-year
term shall not be reduced by any time spent in a secure facility
prior to the order of commitment. For any subsequent extended
commitments, the term of commitment shall be for two years commencing
from the date of the termination of the previous commitment.
(b) The person shall be evaluated by two practicing psychologists
or psychiatrists, or by one practicing psychologist and one
practicing psychiatrist, designated by the State Department of Mental
Health. The provisions of subdivisions (c) to (i), inclusive, of
Section 6601 shall apply to all evaluations
performed for purposes of extended commitments . The
rights, requirements, and procedures set forth in Section 6603 shall
apply to extended all commitment
proceedings.
SEC. 34. Section 6605 of the Welfare
and Institutions Code is amended to read:
6605. (a) A person found to be a sexually violent predator and
committed to the custody of the State Department of Mental Health
shall have a current examination of his or her mental condition made
at least once every year. The person may retain, or if he or
she is indigent and so requests, the court may appoint, a qualified
expert or professional person to examine him or her, and the expert
or professional person shall have access to all records concerning
the person The annual report shall include
consideration of whether the committed person currently meets the
definition of a sexually violent p redator and whether
conditional release to a less restrictive alternative or
an unconditional release is in the best interest of the person, and
conditions can be imposed that would adequately protect the
community. The State Department of Mental Health shall file this
periodic report with the court that committed the person under this
section. The report shall be in the form of a declaration and shall
be prepared by a professionally qualified person. A copy of the
report shall be served on the prosecuting agency involved in the
initial commitment and upon the committed person. The person may
retain, or if he or she is indigent and so requests, the court may
appoint, a qualified expert or professional person to examine him or
her, and the expert or professional person shall have access to all
records concerning the person. The court may, on its own motion, set
a probable cause hearing upon review of the annual report .
(b) The director shall provide the committed person with
an annual written notice of his or her right to petition the court
for conditional release under Section 6608. The notice shall contain
a waiver of rights. The director shall forward the notice and waiver
form to the court with the annual report. If the person does not
affirmatively waive his or her right to petition the court for
conditional release, the court shall set a show cause hearing to
determine whether facts exist that warrant a hearing on whether the
person's condition has so changed that he or she would not be a
danger to the health and safety of others if discharged. The
committed person shall have the right to be present and to have an
attorney represent him or her at the show cause hearing.
(1) The director, within 30 days of the
filing of the report, shall review and consider the annual review.
The person may submit any report prepared by a retained or appointed
expert and the director shall also consider that report. Notice of
review by the director shall be filed in the court. The director
shall authorize the person to petition the court for conditional
release to a less restrictive alternative or unconditional discharge
if, upon review, the director determines that the person's condition
has so changed that either of the following apply:
(A) The person no longer meets the definition of a sexually
violent predator.
(B) Conditional release to a less restrictive alternative is in
the best interest of the person and conditions can be imposed that
adequately protect the community.
The petition shall be filed with the court and served upon the
prosecuting agency responsible for the initial commitment. The court,
upon receipt of the petition for conditional release to a less
restrictive alternative or unconditional discharge, shall within 45
days order a probable cause hearing.
(2) Nothing contained in this chapter shall prohibit the person
from otherwise petitioning the court for conditional release to a
less restrictive alternative or unconditional discharge without the
director's approval. The director shall provide the committed person
with an annual written notice of the person's right to petition the
court for conditional release to a less restrictive alternative or
unconditional discharge over the secretary's objection. The notice
shall contain a waiver of rights. The director shall file the notice
and waiver form and the annual report with the court. If the person
does not affirmatively waive the right to petition, the court shall
set a hearing to show cause to determine whether probable cause
exists to warrant a hearing on whether the person's condition has so
changed that either:
(A) He or she no longer meets the definition of a sexually violent
predator.
(B) Conditional release to a proposed less restrictive alternative
would be in the best interest of the person and conditions can be
imposed that would adequately protect the community.
(c) If the court at the show cause hearing determines
that probable cause exists to believe that the committed person's
diagnosed mental disorder has so changed that he or she is not a
danger to the health and safety of others and is not likely to engage
in sexually violent criminal behavior if discharged, then the court
shall set a hearing on the issue The
committed person shall have a right to have an attorney represent him
or her at the hearing to show cause, which may be conducted solely
on the basis of affidavits or declarations, but the person is not
entitled to be present at the hearing to show cause. At the hearing
to show cause, the prosecuting attorney shall present prima facie
evidence establishing that the committed person continues to meet the
definition of a sexually violent predator and that a less
restrictive alternative is not in the best interest of the person and
conditions cannot be imposed that adequately protect the community.
In making this showing, the state may rely exclusively upon the
annual report prepared pursuant to subdivision (a). The committed
person may present responsive affidavits or declarations to which the
state may reply .
(d) At the hearing, the committed person shall have the
right to be present and shall be entitled to the benefit of all
constitutional protections that were afforded to him or her at the
initial commitment proceeding. The attorney designated by the county
pursuant to subdivision (i) of Section 6601 shall represent the state
and shall have the right to demand a jury trial and to have the
committed person evaluated by experts chosen by the state. The
committed person also shall have the right to demand a jury trial and
to have experts evaluate him or her on his or her behalf. The court
shall appoint an expert if the person is indigent and requests an
appointment. The burden of proof at the hearing shall be on the state
to prove beyond a reasonable doubt that the committed person's
diagnosed mental disorder remains such that he or she is a danger to
the health and safety of others and is likely to engage in sexually
violent criminal behavior if discharged. If
the court, at the hearing to show cause, determines that either of
the following apply:
(1) The state has failed to present prima facie evidence that the
committed person continues to meet the definition of a sexually
violent predator and that no proposed less restrictive alternative is
in the best interest of the person and conditions cannot be imposed
that would adequately protect the community.
(2) Probable cause exists to believe that the person's condition
has so changed that either the person no longer meets the definition
of a sexually violent predator, or release to a proposed less
restrictive alternative would be in the best interest of the person
and conditions can be imposed that would adequately protect the
community, then the court shall set a trial on either or both issues.
(e) If the court or jury rules against the committed
person at the hearing conducted pursuant to subdivision (d), the term
of commitment of the person shall run for a period of two years from
the date of this ruling. If the court or jury rules for the
committed person, he or she shall be unconditionally released and
unconditionally discharged If the court has not
previously considered the issue of release to a less restrictive
alternative, either through a trial on the merits or through the
procedures set forth in subdivision (d), the court shall consider
whether release to a less restrictive alternative would be in the
best interests of the person and conditions can be imposed that would
adequately protect the community, without considering
whether the person's condition has changed.
(f) In the event that the State Department of Mental
Health has reason to believe that a person committed to it as a
sexually violent predator is no longer a sexually violent predator,
it shall seek judicial review of the person's commitment pursuant to
the procedures set forth in Section 7250 in the superior court from
which the commitment was made. If the superior court determines that
the person is no longer a sexually violent predator, he or she shall
be unconditionally released and unconditionally discharged
At the trial resulting from a finding by the court under
subdivision (d), the committed person shall be entitled to be present
and to the benefit of all constitutional protections that were
afforded to the person at the initi al
commitment proceeding. The prosecuting agency shall represent the
state and shall have a right to a jury trial and to have the
committed person evaluated by experts chosen by the state. The
committed person shall also have the right to a jury trial and the
right to have experts evaluate him or her on his or her behalf and
the court shall appoint an expert if the person is indigent and
requests an appointment.
(g) If the issue at the hearing is whether the person should be
unconditionally discharged, the burden of proof shall be upon the
state to prove beyond a reasonable doubt that the committed person's
condition remains such that the person continues to meet the
definition of a sexually violent predator. Evidence of the prior
commitment trial and disposition is admissible.
(h) If the issue at the hearing is whether the person should be
conditionally released to a less restrictive alternative, the burden
of proof at the hearing shall be upon the state to prove beyond a
reasonable doubt that conditional release to any proposed less
restrictive alternative either:
(1) Is not in the best interest of the committed person.
(2) Does not include conditions that would adequately protect the
community. Evidence of the prior commitment trial and disposition is
admissible.
(i) Probable cause exists to believe that a person's condition has
"so changed," under paragraph (2) of subdivision (b) of this
section, only when evidence exists, since the person's last
commitment trial proceeding, of a substantial change in the person's
physical or mental condition such that the person either no longer
meets the definition of a sexually violent predator or that a
conditional release to a less restrictive alternative is in the
person's best interest and conditions can be imposed to adequately
protect the community.
(j) A new trial proceeding under subdivision (d) of this section
may be ordered, or held, only when there is current evidence of a
change in condition since the person's last commitment trial
proceeding from a licensed professional and the evidence presents the
existence of one of the following:
(1) An identified physiological change to the person, such as
paralysis, stroke, or dementia, that renders the committed person
unable to commit a sexually violent act and this change is permanent.
(2) A change in the person's mental condition brought about
through positive response to continuing participation in treatment
which indicates that the person meets the standard for conditional
release to a less restrictive alternative or that the person would be
safe to be at large if unconditionally released from commitment.
(k) For purposes of this section, a change in a single demographic
factor, without more, does not establish probable cause for a new
trial proceeding under subdivision (d) of this section. As used in
this subdivision, a single demographic factor includes, but is not
limited to, a change in the chronological age, marital status, or
gender of the committed person.
(l) The jurisdiction of the court over a person civilly committed
pursuant to this chapter continues until such time as the person is
unconditionally discharged.
(m) Before the court may enter an order directing conditional
release to a less restrictive alternative, it must find all of the
following exist:
(1) The person will be treated by a treatment provider who is
qualified to provide such treatment in the state of California.
(2) The treatment provider has presented a specific course of
treatment and has agreed to assume responsibility for such treatment
and will report progress to the court on a regular basis, and will
report violations immediately to the court, the prosecutor, the
supervising community corrections officer, and the superintendent of
the special commitment center.
(3) Housing exists that is sufficiently secure to protect the
community, and the person or agency providing housing to the
conditionally released person has agreed in writing to accept the
person, to provide the level of security required by the court, and
immediately to report to the court, the prosecutor, the community
program director, the department and the superintendent of the
special commitment center if the person leaves the housing to which
he or she has been assigned without authorization.
(4) The person is willing to comply with the treatment provider
and all requirements imposed by the treatment provider and by the
court.
(5) The person is willing to comply with supervision requirements
imposed by the Department of Corrections and Rehabilitation.
(n) Upon the conclusion of the evidence in a hearing held pursuant
to subdivisions (d) through (h), or through summary judgment
proceedings prior to such a hearing, if the court finds that there is
no legally sufficient evidentiary basis for a reasonable jury to
find that the conditions set forth in subdivision (d) have been met,
the court shall grant a motion by the state for a judgment as a
matter of law on the issue of conditional release to a less
restrictive alternative.
(o) Whenever the issue of conditional release to a less
restrictive alternative is submitted to the jury, the court shall
instruct the jury to return a verdict in substantially the following
form: Has the state proved beyond a reasonable doubt that either:
(1) The proposed less restrictive alternative is not in the best
interests of respondent.
(2) The conditional release does not include conditions that would
adequately protect the community.
Answer: Yes or No.
(p) If the court or jury determines that conditional release to a
less restrictive alternative is in the best interest of the person
and includes conditions that would adequately protect the community,
and the court determines that the minimum conditions set forth in
subdivision (m) of this section are met, the court shall enter
judgment and direct a conditional release.
(q) The court shall impose any additional conditions necessary to
ensure compliance with treatment and to protect the community. If the
court finds that conditions do not exist that will both ensure the
person's compliance with treatment and protect the community, then
the person shall be remanded to the custody of the Department of
Social and Health Services for control, care, and treatment in a
secure facility.
(r) If the service provider designated by the court to provide
inpatient or outpatient treatment or to monitor or supervise any
other terms and conditions of a person's placement in a less
restrictive alternative is other than the Department of Social and
Health Services or the Department of Corrections and Rehabilitation,
then the service provider so designated must agree in writing to
provide such treatment, monitoring, or supervision in accord with
this section. Any person providing or agreeing to provide treatment,
monitoring, or supervision services pursuant to this chapter may be
compelled to testify and any privilege with regard to such person's
testimony is deemed waived.
(s) Prior to authorizing any release to a less restrictive
alternative, the court shall impose such conditions upon the person
as are necessary to ensure the safety of the community. The court
shall order the Department of Corrections and Rehabilitation to
investigate the less restrictive alternative and recommend any
additional conditions to the court. These conditions shall include,
but are not limited to the following: Specification of residence,
prohibition of contact with potential or past victims, prohibition of
alcohol and other drug use, participation in a specific course of
inpatient or outpatient treatment that may include monitoring by the
use of polygraph and plethysmograph, supervision by a Department of
Corrections and Rehabilitation community corrections officer, a
requirement that the person remain within the state unless the person
receives prior authorization by the court, and any other conditions
that the court determines are in the best interest of the person or
others. A copy of the conditions of release shall be given to the
person and to any designated service providers.
(t) Any service provider designated to provide inpatient or
outpatient treatment shall monthly, or as otherwise directed by the
court, submit to the court, to the Department of Social and Health
services facility from which the person was released, to the
prosecutor of the county in which the person was found to be a
sexually violent predator, and to the supervising community
corrections officer, a report stating whether the person is complying
with the terms and conditions of the conditional release to a less
restrictive alternative.
(u) Each person released to a less restrictive alternative shall
have his or her case reviewed by the court that released him or her
no later than one year after such release and annually thereafter
until the person is unconditionally discharged. Review may occur in a
shorter time or more frequently, if the court, in its discretion on
its own motion, or on motion of the person, the secretary, or the
prosecuting attorney so determines. The sole question to be
determined by the court is whether the person shall continue to be
conditionally released to a less restrictive alternative. The court
in making its determination shall be aided by the periodic reports
filed pursuant to subdivision (b) of this section and the opinions of
the secretary and other experts or professional persons.
(v) Before placing a committed person in a state-operated forensic
conditional release program, the community program director
designated by the State Department of Mental Health shall submit a
written recommendation to the court stating which forensic
conditional release program is most appropriate for supervising and
treating the committed person. If the court does not accept the
community program director's recommendation, the court shall specify
the reason or reasons for its order on the record. The procedures
described in Sections 1605 to 1610, inclusive, shall apply to the
person placed in the forensic conditional release program.
(w) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make the
necessary placement arrangements and, within 21 days after receiving
notice of the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision plan
unless good cause for not doing so is presented to the court.
(x) If the court rules against the committed person at the trial
for unconditional release from commitment, the court may place the
committed person on outpatient status in accordance with the
procedures described in Title 15 (commencing with Section 1600) of
Part 2 of the Penal Code and this section.
SEC. 35. Section 6608 of the Welfare
and Institutions Code is repealed.
6608. (a) Nothing in this article shall prohibit the person who
has been committed as a sexually violent predator from petitioning
the court for conditional release and subsequent
unconditional discharge without the
recommendation or concurrence of the Director of Mental Health. If a
person has previously filed a petition for conditional release
without the concurrence of the director and the court determined,
either upon review of the petition or following a hearing, that the
petition was frivolous or that the committed person's condition had
not so changed that he or she would not be a danger to others in that
it is not likely that he or she will engage in sexually violent
criminal behavior if placed under supervision and treatment in the
community, then the court shall deny the subsequent petition unless
it contains facts upon which a court could find that the condition of
the committed person had so changed that a hearing was warranted.
Upon receipt of a first or subsequent petition from a committed
person without the concurrence of the director, the court shall
endeavor whenever possible to review the petition and determine if it
is based upon frivolous grounds and, if so, shall deny the petition
without a hearing. The person petitioning for conditional release and
unconditional discharge under this subdivision shall be entitled to
assistance of counsel.
(b) The court shall give notice of the hearing date to the
attorney designated in subdivision (i) of Section 6601, the retained
or appointed attorney for the committed person, and the Director of
Mental Health at least 15 court days before the hearing date.
(c) No hearing upon the petition shall be held until the person
who is committed has been under commitment for confinement and care
in a facility designated by the Director of Mental Health for not
less than one year from the date of the order of commitment.
(d) The court shall hold a hearing to determine whether the person
committed would be a danger to the health and safety of others in
that it is likely that he or she will engage in sexually violent
criminal behavior due to his or her diagnosed mental disorder if
under supervision and treatment in the community. If the court at the
hearing determines that the committed person would not be a danger
to others due to his or her diagnosed mental disorder while under
supervision and treatment in the community, the court shall order the
committed person placed with an appropriate forensic conditional
release program operated by the state for one year. A substantial
portion of the state-operated forensic conditional release program
shall include outpatient supervision and treatment. The court shall
retain jurisdiction of the person throughout the course of the
program. At the end of one year, the court shall hold a hearing to
determine if the person should be unconditionally released from
commitment on the basis that, by reason of a diagnosed mental
disorder, he or she is not a danger to the health and safety of
others in that it is not likely that he or she will engage in
sexually violent criminal behavior. The court shall not make this
determination until the person has completed at least one year in the
state-operated forensic conditional release program. The court shall
notify the Director of Mental Health of the hearing date.
(e) Before placing a committed person in a state-operated forensic
conditional release program, the community program director
designated by the State Department of Mental Health shall submit a
written recommendation to the court stating which forensic
conditional release program is most appropriate for supervising and
treating the committed person. If the court does not accept the
community program director's recommendation, the court shall specify
the reason or reasons for its order on the record. The procedures
described in Sections 1605 to 1610, inclusive, of the Penal Code
shall apply to the person placed in the forensic conditional release
program.
(f) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make the
necessary placement arrangements and, within 21 days after receiving
notice of the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision plan
unless good cause for not doing so is presented to the court.
(g) If the court rules against the committed person at the trial
for unconditional release from commitment, the court may place the
committed person on outpatient status in accordance with the
procedures described in Title 15 (commencing with Section 1600) of
Part 2 of the Penal Code.
(h) If the court denies the petition to place the person in an
appropriate forensic conditional release program or if the petition
for unconditional discharge is denied, the person may not file a new
application until one year has elapsed from the date of the denial.
(i) In any hearing authorized by this section, the petitioner
shall have the burden of proof by a preponderance of the evidence.
(j) If the petition for conditional release is not made by the
director of the treatment facility to which the person is committed,
no action on the petition shall be taken by the court without first
obtaining the written recommendation of the director of the treatment
facility.
(k) Time spent in a conditional release program pursuant to this
section shall not count toward the term of commitment under this
article unless the person is confined in a locked facility by the
conditional release program, in which case the time spent in a locked
facility shall count toward the term of commitment.
SEC. 17. SEC. 36. 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.