BILL NUMBER: SB 33 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 14, 2005
AMENDED IN SENATE FEBRUARY 16, 2005
INTRODUCED BY Senator Battin
DECEMBER 13, 2004
An act to amend Sections 285, 288.1, 1000.12 and 1203.066 of, and
to repeal Section 1000.13 of, the Penal Code, relating to sexual
abuse.
LEGISLATIVE COUNSEL'S DIGEST
SB 33, as amended, 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 14 years of
age or older to commit fornication or adultery with one another.
Existing law provides that any person convicted of committing any
lewd or lascivious act upon a child under 14 years of age shall not
have his or her sentence suspended until the court obtains a report
as to the mental condition of that person from a reputable
psychiatrist or psychologist, or from a recognized treatment program.
This bill would also provide that if the defendant is a member of
the victim's household, he or she shall not be granted probation
unless they are removed from the victim's household until the court
determines that the best interests of the victim would be served by
his or her return. This bill would also provide that while removed
from the household, the court shall prohibit contact by the defendant
with the victim, as specified.
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 committing these
offenses if the existence of any fact required to prove the
allegation is alleged in the accusatory pleading and either admitted
by the defendant or found to be true by the trier of fact. Further,
for the existence of any fact relating to lewd and lascivious acts
against multiple victims, in order for these provisions to apply, the
allegation must specifically reference these provisions .
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
14 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. (a) 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 1203.066, as to the mental condition of that
person.
(b) If the defendant is a member of the victim's household,
probation shall not be granted unless 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 his or her return. While
removed from the household, the court shall prohibit contact by the
defendant with the victim, with the exception that the court may
permit supervised contact, upon the request of the director of the
court ordered supervised treatment program, and with the agreement of
the victim and the victims's parent or legal guardian, other than
the defendant. As used in this subdivision, "contact with the victim"
includes all physical contact, being in the presence of the victim,
communicating by any means, including by a third party acting on
behalf of the defendant, or sending any gifts.
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 physical abuse or neglect to
the fullest extent of the law, if the prosecuting attorney so
chooses.
(b) 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) 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.
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) 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 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, 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, 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.
(c) (1) Except for a violation of subdivision (b) of Section 288,
this section shall only apply if the existence of any fact required
in subdivision (a) is alleged in the accusatory pleading and is
either admitted by the defendant in open court, or found to be true
by the trier of fact.
(2) For the existence of any fact under paragraph (7) of
subdivision (a), the allegation must be made pursuant to this
section.
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.