BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 33|
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THIRD READING
Bill No: SB 33
Author: Battin (R)
Amended: 6/2/05
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-1, 4/19/05
AYES: Alquist, Poochigian, Cedillo, Margett
NOES: Migden
NO VOTE RECORDED: Perata, Romero
SENATE APPROPRIATIONS COMMITTEE : Not relevant
SUBJECT : Lewd conduct with children
SOURCE : National Association to Protect Children
(PROTECT)
DIGEST : Senate Floor Amendments of 6/2/ remove the
provisions of the bill that were inserted into the bill
while it was on the Senate Appropriations Suspense File.
As amended, this bill is exactly the same as when it passed
the Senate Public Safety Committee.
ANALYSIS : As amended, this bill (1) largely eliminates,
in cases involving sexual conduct with a child under 14,
distinctions in probation eligibility between defendants
who are family members of the victim and other defendants,
(2) eliminates probation eligibility (in specified
treatment programs) for persons convicted of intra-family
CONTINUED
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lewd conduct or continuous sexual abuse that involved
multiple victims, pornography or substantial sexual
conduct, (3) eliminates an exception to life terms under
the one-strike law for persons convicted of intra-family
lewd conduct and continuous sexual abuse who are granted
probation, (4) requires specific pleading and proof of
allegations that make defendants ineligible for probation
in lewd conduct and continuous sexual abuse convictions,
(5) allows prosecutors to negotiate plea agreements that
leave defendants eligible for probation in lewd conduct
cases, (6) retains restrictions on the perpetrator living
in or returning to the home of the victim in intra-family
sexual abuse cases, (7) defines incest (a straight felony)
as sexual intercourse between specified blood relatives
over the age of 14, and (8) eliminates deferred entry of
judgment programs in physical and sexual abuse cases.
Existing law provides that any person who commits a lewd
and lascivious act with a child under the age of 14 years
shall be imprisoned in state prison for three, six or eight
years. (Pen. Code 288.) In most cases the court can or
must impose fully consecutive terms for each separate act.
(Pen. Code 667.6, subds. (c) and (d).)
Existing law provides that, except in sexual abuse cases,
the prosecutor may, in lieu of prosecution, refer a person
suspected of abusing or neglecting a child, to the county
social services or probation department for counseling or
psychological treatment and related necessary services.
Prosecutors must consult with the social service or
probation department prior to making such referral. (Pen.
Code 1000.12, subd. (b).)
Existing law (Pen. Code 1000.12, subd. (c)(1)) provides
that in a case in which a minor is the victim of "an act of
molestation or sexual abuse" the prosecutor, in lieu of
trial, may move the court to defer entry of judgment as to
a defendant who pleads guilty to all charges and
enhancements. The court can accept or reject the agreement
between the defendant and the prosecutor. Prosecutors are
not required to offer deferred entry to an eligible
defendant. (People v. Andreotti (2001) 91 Cal.App.4th
1263.) (It appears that this program is seldom used.)
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In deferred entry for sexual abuse cases, the prosecutor
shall compose eligibility standards, including, at a
minimum:
1. Deferred entry is in the best interests of the child.
2. Rehabilitation is feasible in a recognized program, as
defined by Pen. Code 1203.066, designed to the abuse
involved in the charges.
3. No threat of harm to the victim.
4. No charges under Pen. Code 208, subd. (b) (lewd
conduct by force or duress), 288a (oral cop.), 288.5
(continuous sexual abuse of a child) or sexual
penetration, or any crime involving force or duress.
Deferred entry must include these terms:
1. Defendant may not use/possess illegal drugs or associate
with drug users or sellers.
2. Defendant must submit to search and seizure.
3. Unification with family or unsupervised contact with
victim prohibited except on recommendation of treatment
program, motion of the prosecutor and order of the
court.
This bill eliminates deferred entry of judgment in child
abuse cases of all kinds.
This bill provides that the prosecution cannot refer any
defendant charged with "sexual abuse or molestation of a
minor victim" to the county social services or probation
department for counseling of treatment in lieu of
prosecution.
This bill does allow the prosecutor to refer a defendant
charged with "physical" abuse of a minor to the county
social services or probation department for counseling of
treatment in lieu of prosecution.
Existing law provides that a defendant convicted of lewd
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and lascivious conduct that did not involve force or
duress, but that did involve "substantial sexual contact,"
more than one victim, or the use of pornography, is
eligible for probation only under the following, limited
circumstances:
1. Defendant is the victim's parent, stepparent, relative
or member of the victim's household.
2. A grant of probation is in the best interests of the
child.
3. Rehabilitation is feasible and the defendant is amenable
to rehabilitation.
4. The defendant must immediately be placed in a recognized
treatment program for child molesters.
5. Defendant must be removed from home until court
determines best interests of the child allows defendant
to return.
6. The treatment program must meet strict standards,
including demonstration of "expertise in the treatment
of children who are victims of child abuse, their
families and offenders." The program must provide "an
integrated program or treatment and assistance to
victims and their families." (Pen. Code 1203.066,
subds. (c) and (e).) The fact that a defendant is
statutorily eligible for probation does not mean that
the court must grant probation. The court makes such a
determination after weighing all applicable factors.
Existing law allows a prosecutor to challenge a grant of
probation by means of a petition for writ of mandate or
prohibition. In a sentencing scheme such as that in
Section 1203.066, where a prison term is presumed to be the
appropriate disposition, a grant of probation would be
improper unless the record establishes that the defendant
meets the requirements of an exception.
This bill eliminates the limited eligibility for probation
set out in Section 1203.066, subd. (c) and (e), for
intra-family lewd conduct.
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This bill eliminates the standards and requirements for
treatment programs providing treatment to convicted
defendants in intra-family lewd conduct cases.
This bill provides that persons convicted of lewd conduct
and granted probation must be treated in a program that
meets general requirements for sex-offender probation
treatment programs (as found in Pen. Code 288.1, 1027
and 1203.067), not the special requirements and standards
for specified intra-family matters.
This bill does not change the provisions in existing law
that a defendant convicted of intra-family lewd conduct be
removed from the home of the victim and not returned unless
and until it is in the best interests of the child for the
defendant to return.
This bill will not prohibit probation where a fact that
would render a person ineligible for probation, multiple
victims for example, is only established because two
victims or more are named in the charging document and not
specifically alleged pursuant to Section 1203.066.
Existing law includes an exception for one-strike
eligibility in cases where a defendant charged with
non-forced, non-coerced lewd conduct (Pen. Code 288,
subd. (a)) is eligible for probation under the strictly
limited circumstances set out in Penal Code Section
1203.066. (Pen. Code 667.61, subd. (c)(7).) As noted
above, these circumstances include: (1) intra-family
molest, (2) probation for the defendant is in the best
interests of the child, (3) rehabilitation is feasible, (4)
defendant is amenable to rehabilitation, (5) defendant must
immediately be placed in a recognized treatment program for
child molesters, (6) defendant removed from the home, and
(7) treatment program must meet strict standards of
expertise and quality. As noted above in the paragraphs
describing Section 1203.066, the fact that a defendant is
statutorily eligible for probation does not mean that the
court must grant probation. The court makes such a
determination after weighing all applicable factors.
This bill eliminates the exclusion from one-strike
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penalties for persons who are charged with lewd conduct in
specified intra-family forms of lewd conduct involving
substantial sexual conduct, multiple victims or
pornography, but who are eligible for probation under the
limited circumstances set out in Penal Code Section
1203.066.
This bill does not eliminate the provision in the
one-strike law (Pen. Code 667.61) excluding from
one-strike life terms defendants who qualify for probation
under Section 1203.066, subdivision (c), although the bill
as amended on April 14, 2005, rewrites subdivision (c) as a
procedural provision on pleading and proof requirements for
probation ineligibility factors. Apart from the
limitations on and requirements for probation in lewd
conduct cases, Section 1203.066 includes an exhaustive list
of factors that make a defendant ineligible for probation,
use of force or duress, use of a weapon, commission of the
offense by a stranger to the victim where the perpetrator
does not believe the victim is under the age of 14, etc.
Existing law provides that it is a felony for specified
blood relatives (those who could not legally marry) to
commit fornication or adultery with one another. This
felony is punishable by imprisonment in state prison for 16
months, two years or three years and a fine of up to
$10,000. (Pen. Code 285.)
Existing law defines incestuous marriages thus: "Marriages
between parents and children, ancestors and descendants of
every degree [grand and great-grand relatives] and between
brothers and sisters of the half as well as the whole
blood, and between uncles and nieces or aunts and nephews,
are incestuous, and void from the beginning?" (Fam. Code
2200.)
Existing law appears to include no special prohibitions or
limitations on probation for persons convicted of incest, a
person convicted of incest is not subject to a life term
under the one-strike law. Incest is not listed as serious
or violent felony subject to the Three Strikes law.
This bill defines criminal incest as fornication or
adultery by specified blood relatives who are 14 years of
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age or older.
This bill eliminates the possibility of a guilty plea to
incest as reasonably related to a charge of lewd conduct in
intra-family child molest cases.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2005-06 2006-07
2007-08 Fund
Incarceration Costs likely in excess of $200
annually General
SUPPORT : (Verified 6/2/05)
National Association to Protect Children (PROTECT) (source)
A Minor Consideration
Alison Arngrim, Actress and Activist
Bikers Against Child Abuse
California Association for Nurse Practitioners
California Alliance Against Domestic Violence
California Correctional Supervisors Organization
California District Attorneys Association
California Judicial Investigative Task Force
California Protective Parents Association
California State Sheriffs' Association
California Women's Law Center
Child Trauma Academy / Dr. Bruce Perry, M.D., Ph.D. -
senior pediatric psychology consultant to the U.S.
government
City of El Cerrito
Courageous Kids Network
Crime Victims United of California
Feminist Majority
Incest Survivors Speakers Bureau
International Child Abuse Network
Justice for Children
Los Angeles Rape Foundation
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Los Angeles City Attorney
Mothers of Lost Children
Oxnard Police Department
Peace Officers Research Association of California
Prevent Child Abuse California
Rainbow Community Center of Contra Costa County
Rape Treatment Center, Santa Monica UCLA Medical Center
Responsible Citizens, Inc.
Riverside County Sheriff (pending letter)
Santa Monica City Council
Solano County Board of Supervisors
Valencia Pediatric Associates
ARGUMENTS IN SUPPORT : According to the author, "The vast
majority of child sexual abuse is?committed by adults in a
child's?circle of trust. This abuse takes a?devastating
toll on children. Yet California has virtually
decriminalized child sexual abuse within the family."
The bill's sponsor, National Association to Protect
Children, argues that child victims are pressured to accept
the crime and to accept the offender back into the home.
After the offender has been returned to the home, perhaps
not intending to stop sexually abusing the victim, the
child-victim comes to believe that complaining about abuse
would not be taken seriously, Further, the offender often
has inherent power in the family that the minor lacks.
Proponents have argued that children are often pressured
into agreeing with or supporting a grant of probation. They
argue that where an intra-family child molester is returned
to the family, often years after the incident , and the
person molests the original victim or another child, the
victim would be very reluctant to report the second
incident of abuse. Proponents explain low reported
recidivism rates for lewd conduct through the asserted
phenomenon of reluctance to report repeated abuse.
RJG:mel 6/2/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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