BILL NUMBER: SB 33 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Battin
DECEMBER 13, 2004
An act to amend Sections 285, 288.1, 1000.12 and 1203.006 of, and
to repeal Section 1000.13 of, the Penal Code, relating to sexual
abuse.
LEGISLATIVE COUNSEL'S DIGEST
SB 33, as introduced, Battin. Child sexual abuse.
Existing law provides that it is a crime punishable by
imprisonment in the state prison for persons within the degrees of
consanguinity within which marriages are declared by law to be
incestuous and void to commit fornication or adultery with one
another.
This bill would provide that it is a crime punishable by
imprisonment in the state prison for persons within specified degrees
of consanguinity who are 18 years of age or older to commit
fornication or adultery with one another.
Existing law provides that, in lieu of prosecuting a person
suspected of committing an act of abuse or neglect involving a minor
victim, the prosecuting attorney may refer that person for counseling
and psychological treatment.
This bill would specify that these provisions only apply to a
person suspected of committing physical abuse or neglect.
Existing law also provides that, in lieu of trial, the prosecuting
attorney may make a motion to defer entry of judgment with respect
to any crime charged in which a minor is a victim of an act of
molestation or sexual abuse, upon written agreement between the
prosecuting attorney and the suspect, if he or she is a family member
of the victim, the person has no prior violent or sexual felony
convictions, and no adverse diversion or counseling history, as
specified, provided that rehabilitation is feasible, there is no
threat of harm to the minor, the charged offense is not a lewd or
lascivious act or any other sexual offense committed by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury, the defendant pleads guilty and completes an approved
treatment program, 5 years after which, the court shall dismiss the
charges against the defendant.
This bill would repeal these provisions.
Existing law provides that a person who is convicted of committing
lewd and lascivious acts upon a child or engaging in continuous
sexual abuse of a child, if the violation involved more than one
victim, substantial sexual conduct with a victim who was under 14
years of age, or the use of obscene matter depicting sexual conduct,
as specified, shall be ineligible for probation, a suspended
sentence, nor shall any of the charges against him or her be
dismissed, as specified, unless the court makes several findings
including that the defendant is the victim's parent or relative,
grant of probation is in the best interest of the child,
rehabilitation of the defendant is feasible, and there is no threat
of physical harm to the child.
This bill would instead provide that probation shall not be
granted to, nor shall the execution or imposition of sentence be
suspended for any person convicted of committing lewd and lascivious
acts upon a child or engaging in continuous sexual abuse of a child
unless the person is not ineligible under other provisions, the grant
of probation is in the best interest of the child, rehabilitation of
the defendant is feasible, and there is no threat of physical harm
to the child.
This bill would make other conforming changes.
Because this bill would increase local incarceration costs and
change the punishment for a crime, it would create a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 285 of the Penal Code is amended to read:
285. Persons being within the degrees of consanguinity within
which marriages are declared by law to be incestuous and void, who
intermarry with each other, or who being 18 years of age or
older, commit fornication or adultery with each other, are
punishable by imprisonment in the state prison.
SEC. 2. Section 288.1 of the Penal Code is amended to read:
288.1. Any person convicted of committing any lewd or lascivious
act including any of the acts constituting other crimes provided for
in Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years shall not have his or
her sentence suspended until the court obtains a report from a
reputable psychiatrist, from a reputable psychologist who meets the
standards set forth in Section 1027, or from a recognized treatment
program pursuant to Section 1000.12 or 1203.066,
as to the mental condition of that person.
SEC. 3. Section 1000.12 of the Penal Code is amended to read:
1000.12. (a) It is the intent of the Legislature that nothing in
this chapter deprive a prosecuting attorney of the ability to
prosecute any person who is suspected of committing any crime in
which a minor is a victim of an act of molestation
, physical abuse ,
or neglect to the fullest extent of the law, if the
prosecuting attorney so chooses.(b) Except as provided in
subdivision (c), in In lieu of prosecuting a
person suspected of committing any crime, involving a minor victim,
of an act of physical abuse or neglect, the prosecuting
attorney may refer that person to the county department in charge of
public social services or the probation department for counseling or
psychological treatment and such other services as the department
deems necessary. The prosecuting attorney shall seek the advice of
the county department in charge of public social services or the
probation department in determining whether or not to make the
referral.
(c) (1) In lieu of trial, the prosecuting attorney may make a
motion to the trial court to defer entry of judgment with respect to
any crime charged in which a minor is a victim of an act of
molestation or sexual abuse, provided that the defendant pleads
guilty to all crimes and enhancements charged. Upon that motion and
defendant's plea of guilty to all charges and enhancements, the court
may defer entry of judgment, contingent upon the defendant's
referral to, and completion of, a treatment program approved by the
prosecuting attorney. Upon the defendant's successful completion of
the treatment program, and upon the positive recommendation of the
treatment program authority and the motion of the prosecuting
attorney, but no sooner than five years from the date of the
defendant's referral to the treatment program, the court shall
dismiss the charge or charges against the defendant.
(2) Upon any failure of treatment under the program described in
paragraph (1), the prosecuting attorney may make a motion to the
court for entry of judgment and the court shall, upon a finding of
failure of treatment based on a preponderance of evidence, enter
judgment upon the defendant's pleas and admissions, and schedule a
sentencing hearing as otherwise provided in this code.
(3) The office of the prosecuting attorney shall promulgate
eligibility standards for deferred entry of judgment and treatment of
defendants described in paragraph (1), which shall include, but not
be limited to, all of the following:
(A) Deferred entry of judgment for the defendant is in the best
interests of the minor victim.
(B) Rehabilitation of the defendant is feasible in a recognized
treatment program, as defined in Section 1203.066, designed to deal
with child molestation, abuse, or neglect, as specifically related to
the charges made.
(C) There is no threat of harm to the minor victim if entry of
judgment is deferred.
(D) No person shall be deemed eligible for deferred entry of
judgment under this section unless he or she pleads guilty to all
charges and enhancements.
(E) Deferred entry of judgment shall not apply to any person who
is charged under subdivision (b) of Section 288, or any sexual
offense involving force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the minor victim or another
person.
(F) Any person who applies for deferred entry of judgment under
this section shall also meet all of the requirements for the
counseling program delineated under Section 1000.13.
(4) Deferred entry of judgment shall be granted upon the following
terms:
(A) Defendant shall seek and participate in a rehabilitation
program as prescribed by the district attorney.
(B) Defendant shall not use, handle, or have in his or her
possession marijuana, narcotics, dangerous drugs, or controlled
substances of any kind, unless lawfully prescribed for the defendant
by a licensed physician.
(C) Defendant shall not associate with known or reputed users or
sellers of marijuana, dangerous drugs, or narcotics, or be in places
where narcotics or dangerous drugs are present.
(D) Defendant shall submit his or her person, property,
automobile, and any object under his or her control to search and
seizure in or out of the presence of the defendant, by any law
enforcement officer or probation officer.
(E) Unification with the family or unsupervised contact with the
minor victim or any other minor shall be prohibited except upon
recommendation of the treatment program and motion of the district
attorney and order of the court.
(F) Any violation of the law constitutes a failure of treatment.
(c) This section shall not apply to any person who is charged with
sexual abuse or molestation of a minor victim, or any sexual offense
involving force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the minor victim or another person.
SEC. 4. Section 1000.13 of the Penal Code is repealed.
1000.13. (a) Notwithstanding Section 1000.12, no person suspected
of violating any section of this code in which a minor is a victim
of sexual abuse shall be referred for counseling in lieu of
prosecution except upon written agreement between the prosecuting
attorney and the suspected person and unless all of the following
apply to the suspected person:(1) The person is a family member of
the victim. For the purposes of this chapter "family member" means a
parent, stepparent, sibling, aunt, uncle, cousin, grandparent, or a
member of the victim's household who has developed a family
relationship with the victim.
(2) The person's criminal record does not indicate that diversion
has been terminated, or probation or parole has been revoked, without
thereafter being completed within the previous 10 years.
(3) The person has not been referred for counseling or other
services pursuant to this chapter prior to the commission of the
present alleged offense.
(4) The person has no prior conviction for any felony sexual
offense or any offense in which a minor is a victim of sexual abuse
and has no conviction for any felony offense involving violence
against another person during the previous 10 years in which the
suspected person remained free of prison custody.
(b) The prosecuting attorney may impose additional relevant
criteria for determining whether to refer the suspected person under
this chapter.
SEC. 5. Section 1203.066 of the Penal Code is amended to read:
1203.066. (a) Notwithstanding Section 1203 or any other 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 the provisions of this section be stricken
pursuant to Section 1385 for, any of the following persons:(1) A
person who is convicted of violating Section 288 or 288.5 when the
act is committed by the use of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or another
person.
(2) A person who caused bodily injury on the child victim in
committing a violation of Section 288 or 288.5.
(3) A person who is convicted of a violation of Section 288 or
288.5 and who was a stranger to the child victim or befriended the
child victim for the purpose of committing an act in violation of
Section 288 or 288.5, unless the defendant honestly and reasonably
believed the victim was 14 years of age or older.
(4) A person who used a weapon during the commission of a
violation of Section 288 or 288.5.
(5) A person who is convicted of committing a violation of Section
288 or 288.5 and who has been previously convicted of a violation of
Section 261, 262, 264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a,
or 289, or of assaulting another person with intent to commit a
crime specified in this paragraph in violation of Section 220, or who
has been previously convicted in another state of an offense which,
if committed or attempted in this state, would constitute an offense
enumerated in this paragraph.
(6) A person who violated Section 288 or 288.5 while kidnapping
the child victim in violation of Section 207, 209, or 209.5.
(7) A person who is convicted of committing a violation of Section
288 or 288.5 against more than one victim.
(8) A person who, in violating Section 288 or 288.5, has
substantial sexual conduct with a victim who is under 14 years of
age.
(9) A person who, in violating Section 288 or 288.5, used obscene
matter, as defined in Section 311, or matter, as defined in Section
311, depicting sexual conduct, as defined in Section 311.3.
(b) "Substantial sexual conduct" means penetration of the vagina
or rectum of either the victim or the offender by the penis of the
other or by any foreign object, oral copulation, or masturbation of
either the victim or the offender.
(c) Paragraphs (7), (8), and (9) of subdivision (a) shall
not apply when Probation shall not be granted to,
nor shall the execution or imposition of sentence be suspended for,
any person who is convicted of violating Section 288 or 288.5, unless
the court makes all of the following findings:
(1) The defendant is the victim's natural parent,
adoptive parent, stepparent, relative, or is a member of the victim's
household who has lived in the victim's household
has not been found ineligible under subdivision (a) .
(2) A grant of probation to the defendant is in the best interest
of the child.
(3) Rehabilitation of the defendant is feasible, the defendant is
amenable to undergoing treatment, and the defendant is placed in a
recognized treatment program designed to deal with child molestation
immediately after the grant of probation or the suspension of
execution or imposition of sentence.
(4) The defendant is removed from the household of the victim
until the court determines that the best interests of the victim
would be served by returning the defendant to the household of the
victim. While removed from the household, the court shall prohibit
contact by the defendant with the victim, except the court may permit
the supervised contact, upon the request of the director of the
court ordered supervised treatment program, and with the agreement of
the victim and the victim's parent or legal guardian, other than the
defendant. As used in this paragraph, "contact with the victim"
includes all physical contact, being in the presence of the victim,
communication by any means, any communication by a third party acting
on behalf of the defendant, and any gifts.
(5) There is no threat of physical harm to the child victim if
probation is granted. The court upon making its findings pursuant to
this subdivision is not precluded from sentencing the defendant to
jail or prison, but retains the discretion not to do so. The court
shall state its reasons on the record for whatever sentence it
imposes on the defendant.
The court shall order the psychiatrist or psychologist who is
appointed pursuant to Section 288.1 to include a consideration of the
factors specified in paragraphs (2), (3), and (4) in making his or
her report to the court.
(d) The existence of any fact 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 plea of guilty or nolo
contendere or by trial by the court sitting without a jury.
(e) As used in this section and in Section 1000.12
, the following terms apply:
(1) "Recognized treatment program" means a program with
substantial expertise in the treatment of children who are victims of
sexual abuse, their families, and offenders, that demonstrates to
the court all of the following:
(A) An integrated program of treatment and assistance to victims
and their families.
(B) A treatment regimen designed to specifically address the
offense.
(C) The ability to serve indigent clients.
(2) "Integrated program of treatment and assistance to victims and
their families" means that the program provides all of the
following:
(A) A full range of services necessary to the recovery of the
victim and any nonoffending members of the victim's family, including
individual, group, and family counseling as necessary.
(B) Interaction with the courts, social services, probation, the
district attorney, and other government agencies to ensure
appropriate help to the victim's family.
(C) Appropriate supervision and treatment, as required by law, for
the offender.
(f) For purposes of this section and Section 1000.12
, a program that provides treatment only to offenders and
does not provide an integrated program of treatment and assistance to
victims and their families is not a recognized treatment program.
SEC. 6.
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.