BILL NUMBER: AB 395	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 22, 2007

INTRODUCED BY   Assembly Member Swanson

                        FEBRUARY 15, 2007

   An act to amend  Section   Sections 278 and
 278.5 of the Penal Code, relating to crimes.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 395, as amended, Swanson. Child abduction.
   Existing law makes it a crime for a person  who does not have
a right to custody  to  maliciously  take, entice away,
keep, withhold, or conceal a child  and   with
the intent to detain or conceal that child from a lawful custodian.
Under existing law, this crime is punishable by imprisonment in a
county jail not exceeding one year, a fine not exceeding $1,000, or
both that fine and imprisonment, or by imprisonment in the state
prison for 2, 3, or 4 years, a fine not exceeding $10,000, or both
that fine and imprisonment. Existing law also makes it a crime for a
person to take, entice away,   keep, withhold, or conceal a
child and  maliciously deprive a lawful custodian of a right to
custody, or a person of a right to visitation. Existing law makes
these acts punishable by imprisonment in a county jail not exceeding
one year, a fine not exceeding $1,000, or both that fine and
imprisonment, or by imprisonment in the state prison for 16 months,
or 2 or 3 years, a fine not exceeding $10,000  ,  or both
that fine and imprisonment.
   This bill would provide greater penalties for a person who commits
a violation  of either of the crimes  described above,
where the abduction continues for more than one year. In particular,
the bill would punish  such  a violation  ,
where a person does not have a right to custody and maliciously acts
  with the intent to detain or conceal the child from a
lawful custodian, by imprisonment in a county jail not exceeding one
year, a fine not exceeding $1,000, or both that fine and
imprisonment, or by imprisonment in the state prison for 4, 6, or 9
years, a fine not exceeding $10,000, or both that fine and
imprisonment. The bill would also punish a violation, where a person
maliciously deprives a lawful custodian of custody or visitation,
 by imprisonment in a county jail not exceeding one year, a fine
not exceeding $1,000, or both that fine and imprisonment, or by
imprisonment in the state prison for 2, 4, or 6 years, a fine not
exceeding $10,000, or both that fine and imprisonment, if specified
conditions are satisfied. By increasing the penalties for  a
crime   crimes  , this bill would impose a
state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 278 of the   Penal
Code   is amended to read: 
   278.   (a)    Every person, not having a right
to custody, who maliciously takes, entices away, keeps, withholds, or
conceals any child with the intent to detain or conceal that child
from a lawful custodian shall be punished by imprisonment in a county
jail not exceeding one year, a fine not exceeding one thousand
dollars ($1,000), or both that fine and imprisonment, or by
imprisonment in the state prison for two, three, or four years, a
fine not exceeding ten thousand dollars ($10,000), or both that fine
and imprisonment. 
   (b) Every person who commits a violation of subdivision (a) where
the abduction continues without interruption for a period exceeding
one year shall be punished by imprisonment in a county jail not
exceeding one year, a fine not exceeding one thousand dollars
($1,000), or both that fine and imprisonment, or by imprisonment in
the state prison for four, six, or nine years, a fine not exceeding
ten thousand dollars ($10,000), or both that fine and imprisonment.
 
   (c) The greater penalties provided under subdivision (b) shall not
be imposed unless the facts of the abduction that bring it within
that subdivision are charged in the accusatory pleading and admitted
or found to be true by the trier of fact.  
   (d) Notwithstanding Section 1385 or any other provision, the court
shall not strike an allegation under this section or a finding
bringing a person within the provisions of this section. 
   SECTION 1.   SEC. 2.   Section 278.5 of
the Penal Code is amended to read:
   278.5.  (a) Every person who takes, entices away, keeps,
withholds, or conceals a child and maliciously deprives a lawful
custodian of a right to custody, or a person of a right to
visitation, shall be punished by imprisonment in a county jail not
exceeding one year, a fine not exceeding one thousand dollars
($1,000), or both that fine and imprisonment, or by imprisonment in
the state prison for 16 months, or two or three years, a fine not
exceeding ten thousand dollars ($10,000), or both that fine and
imprisonment.
   (b) Every person who commits a violation of subdivision (a) where
the abduction continues without interruption for a period exceeding
one year shall be punished by imprisonment in a county jail not
exceeding one year, a fine not exceeding one thousand dollars
($1,000), or both that fine and imprisonment, or by imprisonment in
the state prison for two, four, or six years, a fine not exceeding
ten thousand dollars ($10,000), or both that fine and imprisonment.
   (c) The greater penalties provided under subdivision (b) shall not
be imposed unless the facts of the abduction that bring it within
that subdivision are charged in the accusatory pleading and admitted
or found to be true by the trier of fact.
   (d) Notwithstanding Section 1385 or any other provision, the court
shall not strike an allegation under this section or a finding
bringing a person within the provisions of this section.
   (e) Nothing contained in this section limits the court's contempt
power.
   (f) A custody order obtained after the taking, enticing away,
keeping, withholding, or concealing of a child does not constitute a
defense to a crime charged under this section.
   SEC. 2.   SEC. 3.   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.