BILL ANALYSIS
SB 1128
Page 1
Date of Hearing: June 27, 2006
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 1128 (Alquist) - As Amended: June 22, 2006
SUMMARY : Creates the "Sex Offender Punishment, Control and
Containment Act of 2006" which makes several changes to the law
relating to sex offenders. Specifically, this bill :
1)Requires every district attorney, parole office and Department
of Justice (DOJ) to keep all records relating to persons
required to register as a sex offender for a period of 75
years after the disposition of the case. This provision only
applies to convictions occurring after the enactment of this
bill.
2)States that any person who kidnaps or carries away any person
with the intent commit a specified sex offense shall be
punished by imprisonment in the state prison for life with the
possibility of parole.
3)Adds rape, sodomy and oral copulation with the threat of
retaliation, and sodomy and oral copulation in concert to the
list of offenses eligible for a term of 15-years-to-life as an
aggravated sexual assault on a child.
4)Requires that when sentencing an offender on charges of
aggravated sexual assault of a child, as specified, the court
must impose consecutive sentences if the crime(s) involves
separate victims or separate acts, as specified.
5)Punishes any person who, motivated by an unnatural or abnormal
sexual interest in children, arranges a meeting with a minor
or a person he or she believes to be a minor for the purpose
of exposing his or her genitals or pubic or rectal area,
having the child expose his or her genitals or pubic or rectal
area, or engaging in lewd or lascivious behavior, by a fine
not exceeding 5,000; by imprisonment in a county jail not
exceeding one year; or by both the fine and imprisonment.
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6)Punishes any person who annoys or molests a child, as
specified, after having entered a dwelling without consent, as
specified, with not only a term of imprisonment up to one year
in the county jail or in the state prison for a term of 16
months, 2 or 3 years and by a fine of $5000.
7)Provides that any person previously convicted of a
registerable sex offense and who arranges a meeting with a
minor, as specified, shall be sentenced to a term of 16
months, 2 or 3 years in state prison.
8)States that a person who arranges a meeting with a minor, as
specified, and who goes to the arranged meeting place on or
about the arranged time shall be punished by a term of two,
three or four years.
9)Specifies that prosecution for arranging a meeting with a
minor, as specified, shall not prohibit prosecution under any
other provision of law.
10)Clarifies that no other act of substantial sexual conduct, as
specified, with a child under the age of 14 years be charged
with more than one offense of continuous sexual abuse of a
child involving the same victim unless the other charge must
have occurred outside the specified time period.
11)Punishes any adult who engages in sexual intercourse or
sodomy with a child under the age of 10 years of age or
younger by sentencing the offender to a term of
25-years-to-life.
12)States that when an offender registers as a sex offender
pursuant to existing law, the registering agency shall give
the registrant a copy of the completed Department of Justice
(DOJ) form each time the person registers or re-registers,
including the annual update.
13)Adds trespass on school grounds as a felony registered sex
offender to the list of crimes that require an offender to
register as a sex offender.
14)Provides DOJ renovate the Violent Crime Information Network
on or before June 1, 2010, as follows:
a) Correct all software deficiencies affecting data
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integrity and include designated data fields for all
mandated sex offender data;
b) Consolidate and simplify program logic, thereby
increasing system performance and reducing system
maintenance costs;
c) Provide all necessary data storage, processing and
search capabilities;
d) Provide law enforcement agencies with full Internet
access to all sex offender data and photos; and,
e) Incorporate a flexible designed structure to readily
meet future demands for enhanced system functionality,
including public internet access to sex offender
information, as specified.
15)Makes findings and declarations related to the need for
comprehensive management of sex offenders and the Megan's law
database.
16)States that the sex offender risk assessment tools authorized
by this bill for use with selected populations shall be known,
with respect to each selected population, as the
"State-Authorized Risk Assessment Tool for Sex Offenders"
(SARATSO).
17)Specifies that if a SARATSO has not been selected for a given
population, as specified, no duty to administer the SARATSO
shall apply for that population.
18)Demands every person who is required to register as a sex
offender be subjected to assessment with the SARATSO, as
specified.
19)States that the SARATSO Review Committee shall consist of
representatives from the California Department of Corrections
and Rehabilitation (CDCR), Department of Mental Health (DMH)
and the DOJ.
20)Provides the purpose of the Review Committee is to ensure
that the SARATSO reflects the most reliable, objective and
well-established protocols for predicting sex offender risk of
recidivism, has been scientifically validated with multiple
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cross-validations, and is widely accepted by the courts.
21)Specifies the Review Committee shall consult with experts in
the fields of risk assessment and the use of actuarial
instruments in predicting sex offender risk, sex offending,
sex offender treatment, mental health, and law, as the Review
Committee deems appropriate.
22)States that as of January 1, 2007, the SARATSO for adult
males required to register as sex offenders shall be the
STATIC-99 risk assessment scale.
23)States that on or before January 1, 2008, the SARATSO Review
Committee shall determine whether the STATIC-99 should be
supplemented with an actuarial instrument that measures
dynamic risk factors or whether the STATIC-99 should be
replaced as the SARATSO with a different risk assessment tool.
24)Provides that if the Review Committee unanimously agrees on
changes to be made to the SARATSO, it shall post its decision
on CDCR's Internet Web site. Sixty days after the decision is
posted, the selected tool shall become the SARATSO for adult
males.
25)Requires that on or before July 1, 2007, the SARATSO Review
Committee shall research risk assessment tools for female and
juvenile sex offenders. If the Review Committee unanimously
agrees on changes to be made to the SARATSO, the Review
Committee shall post its decision on the CDCR's Internet Web
site. Sixty days after the decision is posted, the selected
tool shall become the SARATSO for females and juveniles.
26)States that the Review Committee shall periodically evaluate
the SARATSO for each specified population. If the Review
Committee unanimously agrees on changes to be made to the
SARATSO, the Review Committee shall post its decision on
CDCR's Internet Web site. Sixty days after the decision is
posted, the selected tool shall become the SARATSO for that
population.
27)Provides that the Review Committee shall perform other
functions as necessary to carry out the provisions of this
bill or as otherwise may be required by law. The Review
Committee shall be immune from liability for good faith
conduct under this act.
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28)States that on or before January 1, 2008, the SARATSO Review
Committee in consultation with probation and parole officers
shall develop a training program for probation officers,
parole officers, local law enforcement personnel, and any
other persons, as specified, to administer the SARATSO.
29)Requires CDCR to be responsible for overseeing the training,
which shall be conducted by experts in the field of risk
assessment and the use of actuarial instruments in predicting
sex offender risk.
30)Requires that subject to promulgations by the Review
Committee, probation departments, regional parole officers,
and local law enforcement agencies designate key persons
within their organizations to attend training and, as
authorized by CDCR, to train others within their organizations
designated to perform risk assessments as required or
authorized by law.
31)States that any person who administers the SARATSO shall
receive training no less frequently than every two years and
the SARATSO may be performed for purposes authorized by
statute only by persons trained pursuant to this bill.
32)Establishes the administration of the SARATSO, effective on
or before July 1, 2008, as follows:
a) CDCR shall assess every eligible person who is
incarcerated in state prison. The assessment shall take
place at least four months, but no sooner than 10 months
prior to release from incarceration.
b) CDCR shall assess every eligible person who is on
parole. The assessment shall take place at least four
months, but no sooner than 10 months, prior to termination
of parole.
c) DMH shall assess every eligible person who is committed
to DMH. The assessment shall take place at least four
months, but no sooner than 10 months, prior to release from
commitment.
d) Each probation department shall assess every eligible
person for whom it prepares a report pursuant to existing
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law.
e) Each probation department shall assess every eligible
person under its supervision who was not assessed by DMH.
The assessment shall take place prior to the termination of
probation, but no later than January 1, 2010.
33)States that if a person required to be assessed pursuant to
the terms of this bill was assessed within the previous five
years, a reassessment is permissible but not required.
34)Requires the SARATSO Review Committee, in consultation with
probation officers and local law enforcement agencies,
establish a plan and a schedule for assessing eligible persons
not assessed pursuant to other provisions of this bill.
35)Provides that the plan assess adult males on or before
January 1, 2012 and assess females and juveniles on or before
January 1, 2013. Priority shall be given to assessing those
persons most recently convicted of an offense requiring
registration as sex offenders. On or before January 15, 2008,
the Review Committee shall introduce legislation to implement
the plan.
36)States that on or before January 1, 2008, the SARATSO Review
Committee shall research the appropriateness and feasibility
of providing a means by which an eligible person subject to
assessment may, at his or her own expense, be assessed with
the SARATSO by a governmental entity prior to his or her
scheduled assessment. If the Review Committee unanimously
agrees that such a process is appropriate and feasible, the
Review Committee shall advise the Governor and the Legislature
of the selected tool, and the Review Committee shall post its
decision on the CDCR Internet Web site. Sixty days after the
decision is posted, the established process shall become
effective.
37)Defines an "eligible person" as any person convicted of an
offense that requires him or her to register as a sex
offender, as specified, and who has not been assessed with the
SARATSO within the previous five years.
38)States that regardless of any other provision of law, any
person authorized to administer the SARATSO and trained
pursuant to the terms in this bill shall be granted access to
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all relevant records pertaining to a registered sex offender,
including, but not limited to:
a) Criminal histories;
b) Sex offender registration records;
c) Police reports;
d) Probation and pre-sentencing reports;
e) Judicial records and case files;
f) Juvenile records;
g) Records maintained by Child Protective Services;
h) Psychological evaluations and psychiatric hospital
reports;
i) Sexually violent predator (SVP) treatment program
reports; and,
j) Records that have been sealed by the courts or DOJ.
39)States that records and information obtained pursuant to this
bill shall not be subject to the California Public Records
Act, as specified.
40)Provides that if a person receives a conviction that requires
him or her to register as sex offender, the probation
officer's report shall include the results of the SARATSO if
applicable.
41)States that the designated probation officers shall compile a
"facts of offense" sheet for every registrant referred to
probation. The "facts of offense" sheet shall state:
a) CII number;
b) Physical description; and,
c) Criminal history including registerable sex offenses,
other offense, and arrests that did not result in
conviction for sexual or violent offenses, unique
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characteristics of the offense for which registration is
required, including but not limited to, weapons used or
victim patterns, risk assessment tier level and type of
victim targeted in the past, and the results of the
SARATSO.
The "Facts of Offense" Sheet (FOS) shall be included in
probation.
42)States the defendant may move the court to correct the FOS.
Any corrections to the FOS shall be made consistent with
existing law.
43)States that in any determination of probation for those
required to register as a sex offender, the court shall
consider the results of the SARATSO if available.
44)Increases the additional fine imposed on persons convicted of
crimes for which they are required to register as sex
offenders from $200 to $300 upon the first conviction and from
$300 to $500 upon a second or subsequent conviction.
45)Requires the Megan's Law Sex Offender Internet Web site
(Megan's Law Database) be translated into languages other than
English, as determined by DOJ.
46)Provides that on or before June 1, 2010, DOJ shall make
available to the public, as to any person who is required to
register as a sex offender, the year of conviction of his or
her most recent offense requiring registration and the year he
or she was released from incarceration for that crime.
However, no year of conviction shall be made available to the
public unless DOJ also is able to display the year of release
from incarceration.
47)Mandates the probation officer to send a copy of the FOS to
the DOJ Sex Offender Tracking Program (SOTP) within 30 days of
the person's sex offense conviction, and the FOS shall be made
part of the registered sex offender's file maintained by the
SOTP. The FOS shall thereafter be made available to law
enforcement by DOJ, which shall post the FOS with the
offender's record on DOJ's Internet Web site and shall be
accessible only to law enforcement.
48)States that if the registered sex offender is sentenced to a
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period of incarceration at either the state prison or the
county jail, the FOS shall be sent by CDCR or the county
sheriff to the registering law enforcement agency in the
jurisdiction where the registrant will be paroled or will live
upon release.
49)Provides that if the registered sex offender is committed to
DMH, the FOS shall be sent by the DMH to the registering law
enforcement agency in the jurisdiction where the person will
live on release, within three days of release.
50)States that any state or local facility that releases from
incarceration a person who was incarcerated for a registerable
sex offense shall, within 30 days of release, provide the year
of conviction and year of release from incarceration for that
crime to DOJ in manner and format approved by DOJ.
51)Specifies that every probation department shall ensure that
all probationers under active supervision who are deemed to
pose a high risk to the public of committing sex crimes as
determined by the SARATSO are placed on an intensive and
specialized probation supervision caseload and are required to
report frequently to designated probation officers. The
probation department may place any other probationer convicted
of a sex registerable offense who is on active supervision on
an intensive and specialized caseload and require him or her
to report frequently to designated probation officers.
52)States that any state or local facility that, prior to
January 1, 2007, released from incarceration a person
incarcerated for a registerable sex offense shall provide to
DOJ the year of the conviction and year of release for that
person's most recent offense that required registration.
53)Repeals and recasts provisions of the Penal Code related to
sexually explicit material and harmful matter of persons under
the age of 18, as specified.
54)Provides for the forfeiture of any monetary gains of the
production or sale, production, publication, distribution,
exchange or control of sexually explicit material of a person
under the age of 18.
55)States that any person who knowingly promotes, employs or
uses a minor who the person knows or reasonably should have
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known is under the age of 18 or engages in or assists others
to engage in either posing or modeling involving sexual
conduct for commercial purposes shall punished as a felony
punishable by a term of three, six or eight years in state
prison.
56)Creates a felony punishable by a term of two, three or four
years for any person who promotes, employs or uses a minor in
sexual conduct for non-commercial purposes.
57) Requires that if the minor used is under the age of 14, the
age of the victim shall be pled and proven for the purposes of
an enhanced penalty, as specified, but failure to prove the
victim was under the age of 14 does not bar prosecution for
employing or using a minor involving sexual conduct if it is
proven the minor is under 18.
58)States that any person who possesses or controls matter, as
specified, that depicts a child under the age of 16 may be
charged with a misdemeanor or a felony punishable by up to one
year in county jail or a term of 16 months, 2 or 3 years in
prison. If the depiction is of a child under the age of 16
engaged in explicit sexual conduct, as specified, the penalty
shall be a term of 16 months, 2 or 3 years in state prison.
59)Provides any person who possesses or controls matter, as
specified, that depicts a child of either 16 or 17 years of
age, he or she is guilty of a misdemeanor, punishable by up to
one year in the county jail. If the matter depicts a child of
either 16 or 17 engaged in explicit sexual conduct, a person
may be charged with a misdemeanor or a felony punishable by up
to one year in the county jail or a term of 16 months, 2 or 3
years in state prison.
60)Punishes any person who possesses or controls matter, as
specified, and who has been previously been convicted of a
related crime, as specified, a felony registerable sex
offense, or is found to be a SVP with an enhanced sentence of
two, four or six years in state prison.
61)Specifies that it is not necessary to prove that the matter
is obscene in order to establish a violation of possessing or
controlling specified matter and this law does not apply to
drawings, figurines, statutes, or any film rated by the Motion
Picture Association of America.
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62)States that any person who knowingly sends or causes to be
sent or brings or causes to be brought into California for
sale or distribution or exhibits or exchanges that matter with
another person, as specified, is guilty of a crime and shall
be punished as follows:
a) If the matter depicts a child who is under the age of 16
engaged in sexual conduct, the crime is felony punishable
by a term of 16 months, 2 or 3 years in state prison.
b) If the matter depicts of child under the age of 16
engaged in explicit sexual conduct, as specified, the
penalty is two, three or four years in state prison.
c) If the offender has been previously convicted of a
registerable sex offense, he or she shall be punishable by
a term of three, six or eight years regardless of the age
of the victim.
63)Defines "distribution" as accomplished by means that include,
but are not limited to, postal delivery, delivery or shipping
services, personal transport, electronic mail, the internet, a
commercial online service or peer-to-peer file sharing or any
equivalent means or manner.
64)Specifies that it is an element of each offense, as
specified, that the defendant knew or should have known that
the child depicted is under the age specified.
65)Provides for the forfeiture of any monetary gains of the
production or sale, production, publication, distribution,
exchange or control of sexually explicit material of a person
under the age of 18.
66)Requires a court to destroy all matter that is the subject of
the conviction which remains in the control of the district
attorney or any law enforcement agency once the conviction has
become final.
67)States that it shall be a defense to any prosecution for
child pornography, as specified, that the act charged was
committed in aid of legitimate medical, scientific, or
educational activities, or during lawful conduct between
spouses when one or both are under the age of 18 or that the
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matter depicts a child under 18 years of age if that child is
legally emancipated.
68)States that nothing in this law shall apply to the activities
of law enforcement and prosecuting agencies in the
investigation and prosecution of criminal offenses.
69)Provides that an employee of commercial film developer or
Internet service provider acting in the scope of his or her
employment and in accordance with the instructions of his or
her employer is not guilty of distributing child pornography,
as specified, if the employee has no financial interest in the
commercial developer by whom he or she is employed.
70)Provides that a person is not in possession of prohibited
matter, as specified, if the person held the material through
acts done within the scope of his or her employment and took
no action to exercise personal dominion and control over the
material.
71)States that provisions related to the possession or
distribution of child pornography, as specified, do not apply
to matter that is unsolicited and is received without
knowledge or consent through a facility, system, or network
over which the person or entity has no control, unless the
person intentionally exerts dominion and control over the
matter or the person intentionally commits any act specified
in those sections relating to the possession or distribution
of child pornography.
72)Clarifies that any act of possessing or distributing child
pornography that is committed on a separate occasion or is
committed such that the person had time to reflect on his or
her conduct may be separately charged and punished.
73)Recast provisions related to harmful matter.
74)Specifies that it does not constitute a violation of
specified child pornography statutes for a person or entity
solely to provide access or connection to or from a facility,
system, or network over which that person or entity has no
control, including related capabilities that are incidental to
providing access or connection unless the individual or
entity that is owned or controlled by, or a conspirator with,
an entity actively that is involved in the creation, editing,
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or knowing distribution of communications prohibited.
75)States an employer is not liable for the actions of an
employee or agent unless the employee's conduct is within the
scope of his or her employment or agency and the employer has
knowledge of, authorizes, or ratifies the employee's or
agent's conduct.
76)States it is a defense to prosecution under the child
pornography statutes, as specified, and in any civil action
that may be instituted based on a violation of any of those
laws that a person has taken reasonable, effective, and
appropriate actions in good faith to restrict or prevent the
transmission of, or access to, a communication prohibited.
77)Creates an in-custody relapse prevention treatment program
for those sex offenders incarcerated in state prison that are
determined by CDCR, using the SARATSO, and are at least five
years away from parole. No offender who has been sentenced to
life without parole or death shall be eligible to participate
in treatment.
78)States that those persons required to register as sex
offenders and who are present on any school property or loiter
on any sidewalk in front or adjacent to the school or youth
recreational facility where minors are present without lawful
business purpose and without permission from the chief
operating officer is guilty of a misdemeanor.
79)States any person who is required to register as a sex
offender where the victim was an elderly or dependant person
and who is present on any property where elderly or dependant
persons reside without lawful purpose or written permission
from the director of the facility, is guilty of a misdemeanor.
80)States that those offenders who are present on school grounds
or an elderly residence, as specified immediately above, shall
be punished as follows:
a) For a first conviction, the offender shall be sentenced
to a maximum of six months in the county jail or a fine of
$500 or by both imprisonment and fine.
b) For those with a prior conviction, the offender shall be
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sentenced to county jail or a minimum period of 10 days or
a maximum of six months, by a fine of $500, or by both
imprisonment and fine. The offender must serve at least 10
days in the county jail.
c) For those with two prior convictions, the offender shall
be sentenced to a minimum period of 90 days or a maximum of
six months, by a fine of $500, or by both imprisonment and
fine. The offender must serve at least 90 days in the
county jail.
81)Extends the statute of limitations for the offense of using
or employing a minor to participate in the production of
sexually explicit material to 10 years from the date of the
production of the material.
82)Expands the list of "violent felonies" for the purposes of
sentencing pursuant to "Three Strikes" to include sodomy, as
defined, and specified sex offenses in concert.
83)Limits the court's discretion to dismiss in the interest of
justice convictions sustained pursuant to the "One-Strike" sex
statute, as specified.
84)Specifies that for certain crimes listed in the One-Strike
sex statute, an offender must be sentenced consecutively if
the crime involves separate victims or the same victim on
separate occasions.
85)Requires each county to designate certain probation officers
to monitor registered sex offenders. Those probationers shall
be subject to active and intense supervision by those
designated officers.
86)Adds continuous sexual abuse of a child to a provision
authorizing a five-year enhancement for specified sex acts.
87)Adds specified sex offenses to the list of crimes eligible
for a five-year enhancement for each prior specified crimes.
88)Adds continuous sexual abuse of a child, aggravated sexual
assault of a child, sodomy, oral copulation, and forcible
sexual penetration to the list of offenses which make a person
upon conviction ineligible for probation.
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89)Increases the period of parole from five to ten years for any
inmate sentenced under the One-Strike Sex Law or sentenced as
a "habitual sex offender" rather than just those offenders
convicted of child molestation and the continuous sexual abuse
of a child.
90)Expands the list of "violent felonies" for the purposes of
sentencing pursuant to Three Strikes to include certain sex
offenses related to sodomy and acting in concert.
91)Creates a five-year enhancement to be imposed consecutively
for any person administering a controlled substance for the
purposes of committing a specified sex offense.
92)States persons who are committed as SVPs shall be committed
for an indeterminate term rather than the current law of two
years.
93)Tolls the period of parole while a person is committed as a
SVP.
94)Expands the definition of "sexually violent offense" to
include specified acts of rape, sodomy and oral copulation in
concert.
95)Specifies that a committed person's failure to engage in
treatment shall be considered evidence that his or her
condition has not changed for purposes of any court proceeding
held pursuant to existing law and a jury shall be so
instructed. Completion of treatment programs shall be a
condition of release.
96)Provides that the Corrections Standards Authority (CSA) shall
establish standards by which grants are awarded on a
competitive basis to counties for Sexual Assault Felony
Enforcement (SAFE) teams. The grant shall be awarded to
innovative teams designed to promote the purposes of sexual
assault felony enforcement.
97)Allocates the sum of $6 million from the General Fund to CSA
for grants to counties for SAFE teams.
98)Allocates the sum of $495,000 from the General Fund to the
Office of Emergency Services for child abuse abduction
prevention programs.
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EXISTING LAW :
1)Provides that "any person who assaults another with the intent
to commit mayhem, rape, sodomy, oral copulation, or any
violation of Penal Code Section 264.1 (rape or sexual
penetration in concert with others), Penal Code Section 288
(lewd conduct with a child or dependent adult) or Penal Code
Section 289 (sexual penetration)" is guilty of a felony,
punishable by imprisonment for two, four, or six years.
(Penal Code Section 220.)
2)Includes the One-Strike Sex Crime Sentencing Law that provides
sentences of 15-years-to-life or 25-years-to-life in certain
sex crimes if specified circumstances in aggravation are found
to be true. (Penal Code Section 667.61.)
3)States that the qualifying sex crimes under the One-Strike Sex
Law are forcible rape, forcible spousal rape, rape by a
foreign object, forcible sodomy, forcible oral copulation,
lewd and lascivious acts with a child under the age of 14
accomplished by force or duress, and lewd and lascivious acts
with a child under the age of 14 accomplished by other than
force or duress where the defendant is not eligible for
probation. [Penal Code Section 667.61(c).]
4)Provides that any person who lives with, or has recurring
access to, a child and who engages in three or more acts of
substantial sexual conduct or acts of lewd conduct with a
child under the age of 14 over a period of at least
three-months' time is guilty of the felony of continuous
sexual abuse of a child, punishable by a prison term of 6, 12
or 16 years and a fine of up to $10,000. (Penal Code Section
288.5.)
5)Provides that a defendant convicted of a One-Strike sex
offense is only eligible for probation if he or she is also
eligible for probation under Penal Code Section 1203.066,
which allows probation for a person convicted of lewd conduct
in intra-family cases where the defendant is particularly
likely to be rehabilitated and the grant of probation is in
the best interests of the child. [Penal Code Section
667.61(c)(7).]
6)States that a defendant convicted of lewd and lascivious
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conduct that did not involve force or duress but did involve
"substantial sexual contact" with more than one victim, or the
use of pornography, is eligible for probation only under the
following limited circumstances: the defendant is the
victim's parent, step-parent, relative or member of the
victim's household. A grant of probation is in the best
interests of the child. Rehabilitation is feasible and the
defendant is amenable to rehabilitation. The defendant must
immediately be placed in a recognized treatment program for
child molesters. 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." (Penal Code Section 1203.066(c) through
(e).]
7)Denies probation for any person convicted of lewd conduct
committed by force, violence, duress or menace. [Penal Code
Section 1203.066(a)(1).]
8)Defines a "habitual sexual offender" as a person previously
convicted of specified sex crimes or kidnapping of a child for
lewd conduct and who is convicted in the current case of one
of those offenses shall be sentenced to a term of
25-years-to-life on each count of conviction. (Penal Code
Section 667.71.) The prior qualifying crimes are:
a) Rape/spousal rape by force, duress, etc. [Penal Code
Section 261(a)(1), 262(a)(1)];
b) Rape or sexual penetration in concert (Penal Code
Section 264.1);
c) Lewd conduct with a child under the age of 14 [Penal
Code Section 288(a) through (b)];
d) Sexual penetration [Penal Code Section 289(a)];
e) Continuous sexual abuse [Penal Code Section 288.5];
f) Sodomy by force or duress, etc. [Penal Code Section
286];
g) Sodomy in concert [Penal Code Section 286(d)];
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h) Oral copulation by force, duress, etc. [Penal Code
Section 288a(c) through (d)];
i) Kidnapping a child under the age of 14 for lewd conduct
by seduction, misrepresentation, etc. [Penal Code Section
207(b)];
j) Kidnapping for sex crimes [former Penal Code Section
208(d)];
aa) Aggravated kidnapping for purposes of specified sex
crimes (Penal Code Section 209); and,
bb) Aggravated sexual abuse of a child (Penal Code Section
269); and, conviction in other jurisdiction with elements
of an offense described above [Penal Code Section
667.71(c)(14)].
9)Provides that every person who possesses or controls any
matter depicting a person under the age of 18 years engaging
in sexual conduct or simulating sexual conduct is guilty of a
misdemeanor with imprisonment in the county jail up to one
year or a fine not exceeding $2,500. If a person has a prior
conviction, he or she is guilty of a felony and subject to
imprisonment in the state prison for two, four, or six years.
It is not necessary to prove that the matter in question is
obscene. (Penal Code Section 311.11.)
10)Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any
obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct with the intent to
distribute, exhibit, or exchange such material is guilty of
either a misdemeanor or a felony, punishable by imprisonment
in the county jail up to one year or in the state prison for
16 months, 2 or 3 years and a fine not to exceed $10,000.
(Penal Code Section 311.1.)
11)Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any
obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct for commercial
purposes is guilty of a felony, punishable by imprisonment in
the state prison for two, three, or six years and a fine up to
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$100,000. [Penal Code Section 311.2(b).]
12)Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any matter
depicting a person under the age of l8 years engaging in or
simulating sexual conduct to distribute, exhibit, or exchange
with a minor is guilty of a felony, punishable by imprisonment
in the state prison for 16 months, 2 or 3 years. It is not
necessary to prove commercial consideration or that the matter
is obscene. [Penal Code Section 311.2(d).]
13)Provides that any person who hires or uses a minor to assist
in the preparation or distribution of obscene matter is guilty
of a misdemeanor. If the person has a prior conviction, he or
she is guilty of a felony with imprisonment in the state
prison for 16 months, 2 or 3 years. (Penal Code Section
311.4.)
14)Provides that any person who hires or uses a minor to assist
in the possession, preparation or distribution of obscene
matter or for commercial purposes is guilty of a felony,
punishable by imprisonment in the state prison for three, six,
or eight years. [Penal Code Section 311.4(b).]
15)States that every person who writes, creates, or solicits the
publication or distribution of advertising or other
promotional material, or who in any manner promotes, the sale,
distribution, or exhibition of matter represented or held out
by him to be obscene, is guilty of a misdemeanor. [Penal Code
Section 311.5.]
16)Provides that an inmate serving a determinate term of
imprisonment shall be released on parole for a period of three
years unless the parole authority for good cause waives the
period of parole and discharges the inmate from custody. A
person convicted of "violent" sex offenses - as defined in
Penal Code Section 667.5(c) - and sentenced to determinate
terms shall be released on parole for a period of five years
unless the parole authority for good cause waives the period
of parole. [Penal Code Section 3000(b)(1).]
17)Defines a "SVP" as an inmate "who has been convicted of a
sexually violent offense against two or more victims and who
has a diagnosed mental disorder that makes the person a danger
to the health and safety of others in that it is likely that
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he or she will engage in sexually violent criminal behavior."
[Welfare and Institutions Code (WIC) Section 6600(a).]
18)States that for any subsequent extended commitment, the term
of commitment shall be for two years. The term shall commence
on the date of the termination of the previous commitment.
[Penal Code Section 6604.1(a).]
19)Provides that for the purposes of extended commitments, the
person shall be evaluated by two practicing psychologists or
psychiatrists, or by one practicing psychiatrist and one
practicing psychologist designated by DMH, both of whom must
concur that the person has a diagnosed mental disorder so that
he or she is likely to engage in acts of sexual violence
without appropriate treatment and custody. [Penal Code
Section 6601(d).]
20)Provides that if one of the professionals performing the
examination for extended commitment does not concur that the
person meets the specified criteria and the other professional
concludes that the person does meet the criteria, the Director
of DMH shall appoint two independent professionals, both of
whom must concur that the person meets the criteria. [Penal
Code Sections 6601(e) and (f).]
21)Provides that any independent professional designated by the
Director of DMH shall not be a state government employee, have
at least five-years' experience in the diagnosis and treatment
of mental disorders, and include psychiatrists and licensed
psychologists who have doctoral degrees in psychology. [Penal
Code Section 6601(g).]
22)Provides that a prisoner found to be a SVP could be civilly
confined based on a judicial commitment. A "SVP" is defined
as a person who has been convicted of a "sexually violent
offense," as specified, against two or more victims for whom
he or she received a determinate sentence. A SVP must have a
diagnosable mental disorder that makes the person 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.
(WIC Sections 6600 to 6608.)
23)Defines "sexually violent offenses" as specified sexual acts
(rape or spousal rape, sex crimes in concert, lewd conduct
with a child under 14 years, foreign or unknown object rape,
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sodomy and oral copulation) committed by force, violence,
duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person. [WIC Section
6600(b).]
24)Defines a "sexually violent offense" as any rape or spousal
rape, sex crimes in concert, foreign or unknown object rape,
sodomy and oral copulation that is committed against a child
under the age of 14 involving substantial sexual conduct.
(WIC Section 6600.1.)
25)Provides that when the Director of the CDCR determines that
an individual who is in his or her custody may be a SVP, the
Director must refer the person to DMH for evaluation. If the
DMH determines the person is an SVP, a petition shall be filed
for commitment as an SVP. (Penal Code Section 6601.)
26)Provides for a hearing procedure to determine whether there
is probable cause to believe that a person who is the subject
of a petition for civil commitment as a SVP is likely to
engage in sexually violent predatory criminal behavior upon
his or her release from prison. (Penal Code Section 6602.)
27)Requires a jury trial at the request of either party with a
determination beyond a reasonable doubt that the person is a
SVP. (Penal Code Section 6603.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author' Statement : According to the author, "The purpose of
the bill is to provide a comprehensive, proactive approach to
preventing the victimization of Californians by sex offenders.
Under current law, California's tactical methods and
infrastructure are insufficient for law enforcement to
appropriately assess, convict and monitor sex offenders. This
bill is the product of months of discussion with, and input
from, experts in the area and incorporates a broad spectrum of
approaches recognized by law enforcement and avoids key flaws
that have marred other bills on this subject, such as
residency requirements that dump offenders into rural
communities or provisions that inadvertently tie the hands of
police in performing Internet sting operations.
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"This bill, the Sex Offender Punishment, Control and Containment
Act of 2006: increases the prison term for child rape to
25-years-to-life; expands the Megan's Law database; toughens
penalties for child pornography; toughens penalties for
Internet predators; ensures police can use on-line decoys to
catch Internet predators; discourages prosecutors from
offering plea bargains in sex offense cases; gives state and
local officials a new system to monitor dangerous parolees;
increases parole time for violent sexual offenses; and keeps
sex offenders away from schools, parks, and other places where
vulnerable populations, including the elderly and disabled,
congregate. By taking this comprehensive approach, this bill
will make all of California's communities safer from all
sexual predators, not just some."
2)Background of SVP Law : California's SVP Act became effective
January 1, 1996. The Act created a new civil commitment for
SVPs. The Legislature disavowed any "punitive purpose" and
declared its intent to establish "civil commitment"
proceedings in order to provide "treatment" to mentally
disordered individuals who cannot control sexually violent
criminal behavior. [See, e.g., AB 888 (Rogan), Chapter 763,
Statutes of 1995, Section 1; Senate Committee on Criminal
Procedure, Analysis of AB 888 (July 11, 1995).] The
Legislature also made clear that despite their criminal
records persons eligible for commitment and treatment as SVPs
are to be viewed "not as criminals, but as sick persons."
(WIC Section 6250.) Consistent with these remarks, the SVP
Act was placed in the WIC, surrounded on each side by other
schemes concerned with the care and treatment of various
mentally ill and disabled groups. [See, e.g., WIC Section
5000 (Lanterman-Petris-Short Act) and WIC Section 6500
(Mentally Retarded Persons Law).]
The SVP law tries to ensure that sexual predators suffering from
mental disorders and deemed likely to re-offend are treated in
a secure facility through a civil commitment process. The
CDCR and the Board of Parole Hearings screen cases to
determine if they meet the criteria specified in the statute.
If so, the prisoner is referred to the DMH for clinical
evaluation by two clinical evaluators. If both clinical
evaluators find that the prisoner meets the criteria, the case
is referred to the county district attorney who may file a
petition for civil commitment. Once a petition has been
filed, a judge holds a probable cause hearing; and if probable
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cause if found, the prisoner is scheduled for a trial. If the
jury finds beyond a reasonable doubt that the offender meets
the statutory criteria, the prisoner may then be civilly
committed to a DMH facility for treatment for two years. The
offender is examined at least once each year of the commitment
and may petition the court for conditional release. At the
end of the two-year commitment, the prisoner is evaluated by
the court to determine whether a new petition of commitment
should be filed. The offender may be re-committed for
subsequent two-year terms.
As of December 1, 2004, there were 490 persons found to be SVPs
and committed for confinement and treatment in a secure
facility designated by the Director of DMH. There were 194
individuals awaiting trial.
3)Comparison and Background Civil Commitment for Offenders :
California's SVP Act provides a court process by which certain
convicted violent sex offenders whose current mental disorders
make them likely to re-offend if free may be committed at the
end of their prison terms for successive two-year periods of
state hospital confinement and treatment as long as the
disorder-related danger persists. To qualify as a SVP, a
person must have been convicted of a sexually violent offense
against two or more victims and must suffer from a diagnosed
mental disorder that makes the person a danger to the health
and safety of others in that it is likely that he or she will
engage in sexually violent predatory criminal behavior.
Danger to the health and safety of others does not require
proof of a recent overt act while the offender is in custody.
It is likely that a person will engage in sexually violent
predatory criminal behavior if the person is found to present
a substantial danger - that is, a serious and well-founded
risk - of committing such crimes if released from custody.
A person alleged to be a SVP is entitled to a trial by jury, to
the assistance of counsel, to the right to retain experts or
professional persons to perform an examination on his or her
behalf, and to have access to all relevant medical and
psychological records and reports. In a jury trial, a
unanimous verdict is required. The trier of fact must find
beyond a reasonable doubt that the SVP criteria have been met.
The person is then committed to DMH for appropriate treatment
and confinement in a secure facility. Thus, before a SVP is
subjected to treatment and confinement, he or she is provided
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with procedural due process of law.
SVPs are not the only group of people who may be confined beyond
the date of incarceration in order to remedy an on-going
mental illness. Mentally disordered offenders (MDOs) are
those deemed mentally ill at the completion of his or her
sentence and for reasons not sex offense-related are found to
be a danger to themselves or others. Those found not guilty
by reason of insanity (NGI) are criminal offenders found to be
not responsible for his or her conduct because of mental
illness. Before the enactment of the SVP Act, those
determined to be mentally disordered sexual offenders (MDSO)
could also be committed in lieu of sentence. This statute has
been subsequently repealed.
Although these varying offenders are committed at different
times and for different reasons, they are all subject to civil
confinement and many of the specific terms and conditions of
incarceration are similar, making them all similarly situated.
MDO patients are generally committed for a period of one year.
A person found NGI is committed for treatment for a period no
longer than the maximum time he or she could be sentenced for
the underlying crime. If the NGI defendant remains a danger
to others because of a mental disorder at the end of the
initial commitment, he or she can be committed for an
additional period of two years but would require judicial
review for an additional two-year confinement. [Penal Code
Section 1026.5(b)(8).] This bill would require a
substantially longer period of commitment for SVP patients
than similarly situated civilly committed "forensic" (criminal
justice) mental patients.
MDSO patients were subject to recommitment periods of two years
as well. The MDSO Act preceded the SVP Act. (Former WIC
Section 6300 et seq.) The MDSO law also was a civil
commitment scheme. Unlike the SVP Act, defendants were
committed for mental health treatment after conviction but
before being sentenced to prison. MDSO patients could be
returned to court for criminal sentencing under specified
circumstances. Following the initial commitment, a MDSO could
(and still can) be committed for treatment in two-year
increments through a recommitment trial. [6 Witkin & Epstein
(3d Ed. 2000) Judgment, 126-131.]
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The MDSO scheme was essentially abandoned in 1981 in favor of
higher criminal penalties in the face of legislative
conclusions that "the commission of sex offenses is not in
itself the product of mental diseases." The MDSO laws
originally included indeterminate commitments. With the
passage of the Determinate Sentencing Law, initial commitments
were set at the maximum sentence that would have been imposed
for the underlying offense. [6 Witkin & Epstein (3d Ed. 2000)
Judgment, 126-131.] There are MDSO patients still in
treatment. For extended commitments of two-years each, MDSO
patients must be shown to have essentially the same mental
disorder as SVP patients and present essentially the same risk
to the public as SVP patients. Extensions of commitments
under the MDSO law are also for two years. [Baker v. Superior
Court (1984) 35 Cal.3d 663.]
The length of time for which an offender may be incarcerated and
the intervals for which the defendant must be reviewed by the
court is very similar for those deemed MDO and NGI, and is
also significantly similar to the original MDSO Act. Since
the SVP Act was enacted after the MDO Act and the NGI
provision, the Legislature presumably was aware of the time
limits in those provisions when determining the time limits
for SVPs. [ People vs. Superior Court (San Francisco) (1999)
70 Cal.App.4th 1384, 1391.]
4)Current Law Relating to Term of Commitment and Judicial
Review : Under current law if the court or jury finds
determines that a person is a SVP, that person shall be
committed for two years before the court must review the
person's status at another hearing. (WIC Section 6604.)
Subsequent two-year confinements are allowed where the court
determines it is appropriate. Each two-year confinement term
is based on a distinct proceeding which requires a fresh
determination of the confinee's mental health and a new
finding that he or she is a SVP. [WIC Section 6605, Jackson
vs. United States (2005) 399 F.3rd 1069, 1072.] At the
hearing, the committed person shall have the right to be
present and shall be entitled to the benefit of all
constitutional protections afforded to him or her at the
initial commitment proceeding. 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
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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. [WIC Section 6605(d).] Hence, the court has a
remedy if at the end of a two-year commitment the court
believes the offender is still mentally ill.
5)This Bill Would Treat Similarly Situated SVP Patients
Differently than MDOs, Triggering a Strict Scrutiny Analysis :
As a general rule, there is a constitutional guarantee of
equal protection under the law, meaning that persons similarly
situated with respect to the purpose of the law must be
similarly treated under the law. [ In re Gary W. (1971) 5
Cal.3d 296, 303.] If the person is not similarly situated
under the law, an equal protection claims fails at the
threshold. The question is not whether persons are similarly
situated for all purposes, but whether they are similarly
situated for the purpose of the law challenged. [ People vs.
Gibson (1988) 204 Cal.App. 3rd 1425, 1436.] The Legislature
may distinguish between persons or groups in passing
legislation. In ordinary equal protection cases not involving
suspect classifications, such as race or the alleged
infringement of a fundamental interest, the right to vote, or
to pursue a lawful occupation, these legislative distinctions
are upheld if they have a rational relationship to a
legitimate state purpose. If the distinction, however,
involves a suspect classification or infringes on a
fundamental interest, it is strictly scrutinized and is upheld
only if it is necessary to further a compelling state
interest. [ Weber vs. City Council (1973) 9 Cal.3rd 950, 958.]
Strict scrutiny is the correct standard of review in
California for disparate involuntary civil commitment schemes
because liberty is a fundamental interest. The burden then
shifts to the State to establish a compelling interest that
justifies the law and demonstrate that the distinctions drawn
by the law are necessary to further that state interest.
[ Conservatorship of Hofferber (1980) 28 Cal.3rd 161, 176;
Hubbard vs. Superior Court (1999) 19 Cal.4th 1138; and In re
Jesse J. Calhoun (2004) 121 Cal.App.4th 1315, 1354, holding
that for the purposes of forced medication, SVPs are similarly
situated to MDOs.] Although the United States and the
California Supreme Court have both held that laws committing
SVPs meet the conditions of strict scrutiny, the reason for
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that decision was specific and was predicated on the
procedural protections in the statute. [See Kansas vs.
Hendricks (1997) 521 U.S. 346, Hubbard , at 1153.]
This bill would lengthen the term of commitment for those found
to be SVP before the court-required review every two years.
Under the Equal Protection Clause of the Fourteenth Amendment,
similarly situated persons must be treated the same when the
interest at stake is deemed fundamental, meaning that SVPs
should not be committed without review for longer periods of
time than MDOs or those found NGI. The Supreme Court has
stated that reviewing equal protection claims of this type
requires a review of strict scrutiny meaning that the
Legislature would have to show the means of achieving a
compelling state interest are narrowly tailored. In this
case, there is no indication that extending review would meet
a compelling state interest. Judicial economy would likely
not be a strong enough state interest to violate the Equal
Protection Clause.
6)Constitutional Demands of Due Process Require a Regular
Evaluation of the Defendant's Mental Condition : Current law
provides several procedural safeguards for committing an
offender beyond the court-ordered period of incarceration.
Those safeguards include right to counsel, the right to a
state paid psychiatrist and the right to a unanimous jury
verdict. (WIC Section 6604.) Moreover, the California and
United States Supreme Court have stated that civil commitment
for sexually violent offenders must meet the most rigorous
form of constitutional review. ( Hubbard , at 1153, Hendricks ,
at 345.) This requirement of due process includes regular
review of the offender's mental status. Mandating courts to
review an offender's mental status every two years protects
his or her due process rights in that it ensures that the
offender is still mentally ill. Although the offender may
petition the court for annual review, there is no requirement
that the court hold a hearing.
Requiring review every two years ensures that only those
offenders who are truly a danger to the community will be
confined. Lengthening the term of commitment from two years
to an indeterminate term may also force the courts to view
civil commitment as punitive and, hence, unconstitutional.
Changing the length of the commitment with no evidence that
dangerous offenders are being prematurely released only makes
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it seem that the Legislature is attempting to extend the term
of incarceration for the predicate crime rather than treating
a mental illness.
7)Child Pornography : This bill makes several changes to
existing law as it relates to the possession, production and
distribution of child pornography. Current law states that
any person who sends, brings or distributes matter depicting a
person under the age of 18, as specified, may be charged with
either a misdemeanor of a felony punishable by up one year in
the county jail or a term of imprisonment for a period of 16
months, 2 or 3 years. [Penal Code Section 311.1(a)]. Any
person who sends or brings into California matter depicting a
child under the age 18 and who personally engages in simulated
sexual conduct for commercial purposes or who offers to
distribute such matter is guilty of a felony punishable by a
term of two, three or four years. [Penal Code Section
311.2(b)]. Current law makes a distinction between
distribution for commercial gain and also sending or
distributing the information to persons above or under the age
of 18. [Penal Code Sections 311.2(c)(d)]. Existing law
specifies that the possession of matter depicting a person
under the age of 18 engaged in or simulating sexual conduct,
as a first offense, is guilty of a misdemeanor punishable by
up to one year in the county jail. [Penal Code Section
311.11(a).]
This bill separates provisions related to obscenity and
pornography into two different chapters. With respect to
penalties for possession, distribution and production, as
specified, provisions of this bill create several gradations
of penalties related to the age of the person depicted and the
nature of the conduct depicted. If a defendant possesses
matter, as specified, of a person under the age of 16 engaged
in "sexual conduct", as defined, he or she may be punished by
up to one year in the county jail or by a term of imprisonment
of 16 months, 2 or 3 years. If the person depicted is engaged
in "explicit sexual conduct", as specified, the defendant may
be sentenced to a term of commitment of 16 months, 2 or 3
years in state prison. If a defendant is in possession of
matter, as specified, that depicts a person 16 or 17 years of
age and the person depicted is engaged in "sexual conduct",
the defendant may be sentenced to up to six months in the
county jail. If the person depicted is 16 or 17 years of age
and is engaged in "explicit sexual conduct", as specified, the
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penalty is an alternate felony-misdemeanor punishable by up
one year in county jail or a term of commitment of 16 months,
2 or 3 years in state prison. This bill also states that any
person who has previously suffered a conviction that required
him or her to register as a sex offender or has suffered a
child pornography conviction, as specified, shall be punished
by a term of two, four or six years in state prison.
As this bill relates to distribution, there are also
distinctions in proposed penalties based on the age of the
person depicted and the conduct depicted. If a person sends
or distributes matter of a person under the age of 16 engaged
in sexual conduct, he or she charged with a felony and
sentenced to a term of 16 months, 2 or 3 years in state
prison. If the person depicted is engaged in "explicit sexual
conduct", he or she may be sentenced to a term of two, three
or four years in state prison. Distribution or production of
matter that depicts a person 16 or 17 years of age engaged in
"sexual conduct" shall be punished as an alternate
felony-misdemeanor carrying a penalty of up to one year in the
county jail or a term of 16 months, 2 or 3 years in state
prison. If a person depicted is engaged in "explicit sexual
conduct", the defendant may be sentenced to 16 months, 2 or 3
years in state prison. This bill also states that any person
who sustains a conviction for distribution or production, as
defined in this bill, and is a registered sex offender shall
be punished by a term of three, six or eight years regardless
of the age of the person depicted or the conduct depicted.
"Sexual conduct" is defined in existing law as including: sexual
intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the
same or opposite sex or between humans and animals;
penetration of the vagina or rectum by any object;
masturbation for the purpose of sexual stimulation of the
viewer; sadomasochistic abuse for the purpose of sexual
stimulation of the viewer; exhibition of the genitals or the
pubic or rectal area of any person for the purpose of sexual
stimulation of the viewer; and, defecation or urination for
the purpose of sexual stimulation of the viewer. This bill
adds to that definition any lewd or lascivious act as defined
in existing law related to child molestation and deletes from
the definition masturbation for the purposes of sexual
stimulation of the viewer. [Penal Code Section 311.3(b)(1) to
(6).]
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This bill defines "explicit sexual conduct" as including sexual
intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the
same or opposite sex or between humans and animals;
penetration of the vagina or rectum by any object;
sadomasochistic abuse for the purpose of sexual stimulation of
the viewer; masturbation on bare skin, bestiality, graphic and
explicit display of the genitals or pubic or rectal area of an
overtly sexual character; 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.
8)STATIC-99 and SARATSO : The "STATIC-99," which this bill
proposes to employ as a tool for assessing the recidivism risk
of registered sex offenders, is a widely accepted diagnostic
tool for predicting recidivism by persons convicted of sex
crimes. The tool was developed in Canada and is used
throughout North America and around the world. The developers
of STATIC-99 conduct ongoing research and evaluation of the
instrument. The researchers particularly seek to make the
instrument both more accurate in predicting risk and easier to
apply in the field. It is likely that employment insecurity
will be emphasized as a predictor of re-offense and that the
factor concerning a lack of close relationships will be made
easier to document. This latter change will likely help
probation officers and parole agents obtain correct data.
Currently in California, STATIC-99 is used by CDCR in
determining which high-risk parolees should be monitored with
Global Positioning System devices. The STATIC-99 is an
important component of the DMH review of persons who face
possible commitment as SVPs. The governing statute requires
DMH to employ and update a standardized assessment protocol.
The identified risk factors for recidivism identified in the
STATIC-99 are, as follows: young offender (ages 18 to 25);
lack of intimate partners (intimate partnerships of two years
or more lessen recidivism); non-sexual violence; prior
convictions for non-sexual violence; prior sex offenses (very
important predictor of future criminal behavior); prior
criminal sentencing - four or more separate sentencings;
convictions for "non-contact" sex offense (exhibitionism,
obscene telephone calls, obscene material); unrelated victims
- perpetrators who were not related to their victims are more
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likely to re-offend; stranger victims - perpetrators who
preyed on strangers are more likely to re-offend; and, male
victims - perpetrators who committed crimes against male
victims are more likely to re-offend. This bill proposes a
comprehensive system for ensuring that risk assessments are
conducted for all persons convicted of registerable sex
offenses, whether granted probation, in prison, on parole, or
in the community after terms of parole or probation have
ended. This system also would require that risk assessment
levels be posted on Megan's Law to further inform the public
as to the particular risk level of individual registrants.
This bill, however, is not limited to just the STATIC-99. It
specifically references the State Authorized Risk Assessment
Tool for Sex Offenders (SARATSO) and creates a review
committee to investigate the best tool to use for this
purpose. Although the best tool may now be the STATIC-99, the
bill allows for the use of other tests that may prove more
accurate in the future.
9)Findings of the Legislative Analyst's Study: A "Containment"
Strategy for Adult Sex Offenders on Parole : In 1999-2000, the
Legislative Analyst's Office (LAO) released a study related to
the current treatment of sex offenders under California law,
"A Containment Strategy for Adult Sex Offenders on Parole".
The report noted that "about one-half of the 7,300 adult sex
offenders now under state parole supervision are considered to
pose a high risk of committing new sex crimes and other
violent acts. Very few of these offenders have received any
treatment while in prison to curb their pattern of criminal
activities, and only a fraction receive intensive supervision,
treatment and control after they are released into the
community. Two out of three fail on parole by committing new
crimes or parole violations. A program to address the
concerns of the public by sending such offenders to state
mental hospitals is proving costly and is holding relatively
few offenders.
"In light of these concerns, the LAO recommends the
implementation of a more cost-effective strategy of
'containment' of high-risk adult sex offenders. The
containment strategy includes longer and more intensive
supervision of high-risk adult sex offenders released on
parole, and pre- and post-release treatment programs to
control the behavior of sexual offenders. Specifically, the
LAO recommends intense supervision for parolees, more
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background information for parole agents, longer periods of
supervision, specialized treatment programs, voluntary
medication treatments, and a pilot program for the in-prison
treatment for high-risk offenders.
"The LAO believes that the containment approach will result in
improved public safety; better use of state parole resources
with more focus on high-risk offenders and less on low-risk
offenders; better use of parole outpatient clinic resources;
and significant long-term savings to the state and local
government, potentially tens of millions of dollars, as a
result of lower costs for the prison and mental hospital
systems."
10)LAO Concluded Treatment is Better Solution : "Correctional
professionals and experts on deviant sexual criminal behavior
are in general agreement that no treatment program can 'cure'
a person with criminal sexual tendencies. However, there is a
growing body of academic evidence suggesting that some
therapies, often referred to as 'cognitive-behavioral
treatment' or 'relapse prevention', can enable some high-risk
sex offenders in prison or on parole to learn how to curb
their impulses to commit further criminal acts.
"Experts on this subject indicate that, to be effective, such
programs must: (a) be tailored especially for sex offenders;
(b) be structured to progress through multiple phases; (c)
address individual problems such as addiction to drugs or
alcohol that may be related to their pattern of criminal
behavior; (d) be of sufficient duration and intensity to be
effective; and, (e) have a strong 'aftercare' component to
ensure there is not a return to criminality after their
release to the community. Medication treatments that can
reduce the intensity of an offender's sexual impulses are used
in conjunction with relapse-prevention therapy for particular
cases. (Informed consent and medical protocols have been used
in these instances.)
"Sex offender treatment programs containing some of these
elements have been implemented for California's sex offenders
in the past, but are rarely available now for either prison
inmates or parolees. This is the case even if an offender's
criminal record was deemed so serious that it resulted in his
or her referral to DMH for evaluation as a SVP. In cases when
a sex offender does not receive a SVP commitment, he or she
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ordinarily would be subject to intensive supervision in the
community but probably will not participate in a specialized
sex offender treatment program."
11)New Hampshire Model : New Hampshire adopted a voluntary
in-custody sex offender treatment program (SOP) for all sex
offenders at least one year from release. The offender must
admit his or her crime; take periodic polygraph exams; and
participate in at least one year of group and individual
therapy, homework, relapse prevention and other steps. [Tom
Fahey, "Treatment Called Key for Sex Offenses", The Union
Leader, September 27, 2005, A1.] That article also quoted the
New Hampshire Parole Board Executive Assistant as reporting,
"I can say it is one of our biggest successes." This bill
proposes a similar in-custody treatment program and lengthens
the term of parole for child molesters from five to ten years.
Perhaps this will be the necessary opportunity to follow
through with treatment started in prison.
12)SAFE Teams : This bill contains an appropriation of $6
million to fund SAFE Teams in individual counties. These
teams identify, monitor, arrest and assist in the prosecution
of sex offenders who violate the terms and conditions of their
probation or parole or fail to comply with registration
requirements, making it more likely that those who are not in
compliance with probation or parole or who are failing to
register as a sex offender will be monitored and regulated.
13)Related Legislation :
a) AB 231 (S. Runner) creates the Sexual Predator
Punishment and Control Act which makes numerous changes and
additions to provisions of law relating to sex offenders
and prohibits a registered sex offender from residing
within 2,000 feet from any public or private school, or
park where children regularly gather. AB 231 failed
passage in this Committee but exists in its entirety in a
pending November Initiative.
b) AB 50 (Leno) creates the Sex Offender Containment and
Management Act of 2006 which makes numerous changes and
additions to laws relating to sex offenders and creates an
in custody treatment program for sex offenders. AB 50 is
pending hearing by the Senate Committee on Public Safety.
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c) SB 558 (G. Runner) is identical to AB 231 summarized
above and is also the substance of the November Initiative.
SB 558 failed passage in the Senate Committee on Public
Safety.
d) AB 1015 (Chu) creates a Sex Offender Management Board to
assess current management practices for adult sex offenders
and report to the Legislature by January 1, 2008. AB 1015
is pending hearing by the Senate Committee on
Appropriations.
e) SB 864 (Poochigian) lengthens the period of civil
commitment for those found to be SVPs from two years to an
indeterminate term. SB 864 failed passage in this
Committee, was granted reconsideration, failed passage
again, and was returned to the Secretary of the Senate.
f) SB 1178 (Speier) requires every adult male convicted of
an offense that requires him to register as a sex offender
to be assessed for risk of re-offending using the STATIC-99
assessment. SB 1178 is set for hearing in the Assembly
Committee on Public Safety the same day as this bill.
14)Arguments in Support :
a) The California Police Chiefs Association states, ". . .
Children are the most vulnerable of victims because they
simply don't have the tools to take evasive action
necessary to avoid being victimized by sexual predators.
As a consequence, it is imperative that we have strong laws
in place that will clearly and unambiguously provide them
with protection
"This bill has a number of important elements, including
enabling us to use on-line decoys to catch Internet
predators; increasing prison terms for child rape;
expanding the Megan's Law database; ratcheting up penalties
for Internet predators; creating 'safe zones' where sex
offenders may not enter; increasing penalties for child
pornography; increasing our ability to track sex offenders;
and creating a disincentive for offering plea bargains in
sex crime cases. Importantly, this bill also recognizes
that the elderly are also victims of sexual predators and
includes provisions to provide protections for that class
of victims, as well."
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The California Coalition against Sexual Assault states, "With
the inclusion of provisions intended to improve
containment, treatment and management of sex offenders,
this bill is a smart, sensible a defective way to enhance
community safety and decrease the likelihood that sexual
predators will re-offend creating more victims."
b) The California State Parent Teacher Association states,
"We support the increased penalties for these serious
offenses including the sexual abuse of children and youth;
the production and distribution or sharing of child
pornography; and the use of the Internet to prey on
children and youth. We also agree that keeping sex
offenders away from schools, parks and other places where
children and youth congregate is more likely to be
successful through restrictions on loitering in these
locations rather than residency restrictions which may have
severe unintended consequences, including the relocation of
sexual offenders into rural communities. We support
increased monitoring of sexual offenders through an
emphasis on assessing the levels of risk of recidivism;
increasing parole terms; updating the Megan's Law Web site;
and increasing funding for community-based SAFE teams. We
strongly support the funding of school-based programs to
promote child safety and prevent child abductions that
actively engage parents.
"We also support the measures designed to protect children
and youth from SVPs by expanding the scope of offenders who
are evaluated for SVP eligibility; increasing the term of
commitment; and ensuring that SVPs are appropriately
monitored upon release from prison through ensuring that
their parole period tolls during the SVP civil commitment
process."
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Health Facilities
California Association of Homes and Services for the Aging
California Coalition against Sexual Assault
California District Attorneys Association
California Police Chiefs Association
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California State Parent Teacher Association
City of San Jose
Community Solutions
Crime Victims United
Office of the Attorney General
Office of the District Attorney, Santa Clara County
Police Officers Research Association of California
1 private citizen
Opposition
1 private citizen
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744