BILL NUMBER: AB 499 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Swanson
FEBRUARY 20, 2007
An act to amend Sections 647, 653.22, 653.23, 679.01, 679.04,
11165.1, and 11166.3 of the Penal Code, and to amend Sections 300 and
313 of, and to add Sections 307.6 and 626.1 to, the Welfare and
Institutions Code, relating to sexually exploited minors.
LEGISLATIVE COUNSEL'S DIGEST
AB 499, as introduced, Swanson. Sexually exploited minors.
(1) Existing law provides that a minor under the jurisdiction of
the juvenile court who is in need of protective services shall
receive care, treatment, and guidance consistent with his or her best
interest and the best interest of the public. Existing law provides
that a minor under the jurisdiction of the juvenile court as a
consequence of delinquent conduct shall, in conformity with the
interests of public safety and protection, receive care, treatment,
and guidance that is consistent with his or her best interest, that
holds the minor accountable for his or her behavior, and that is
appropriate for his or her circumstances.
Under existing law, it is a misdemeanor to solicit or engage in
lewd or dissolute conduct in any public place, to solicit or engage
in any act of prostitution, to loiter in any public place with the
intent to commit prostitution, or to supervise or otherwise aid a
prostitute.
This bill would declare the intent of the Legislature that minors
arrested for prostitution should not be prosecuted, but rather
treated as victims, and taken to a secure detention center or safe
house and processed the same as a person who is a victim of sexual
abuse or domestic violence. The bill would require a peace officer,
if a person under 18 years of age has violated any of the
prostitution-related provisions described above, to place the person
in civil protective custody on a safety hold as a sexually exploited
minor and to take the person to a secure protective facility, as
specified. The bill would provide that a person who has been placed
in civil protective custody on a safety hold as a sexually exploited
minor shall not thereafter be subject to any criminal prosecution or
juvenile court proceeding based on the facts giving rise to that
placement. By imposing new duties on local law enforcement
authorities, the bill would impose a state-mandated local program.
(2) Existing law establishes statutory rights of victims and
witnesses of crime, as specified, and authorizes a law enforcement
officer to provide a victim's rights card to the victim of a crime.
Existing law provides that a victim of sexual assault has the right
to have victim advocates and a support person of the victim's
choosing present at any interview by law enforcement authorities,
district attorneys, or defense attorneys. Existing law defines
"victim" for purposes of these provisions as a person against whom a
crime has been committed.
This bill would include a sexually exploited minor, as described
in paragraph (1) above, within the definition of "victim" for
purposes of these provisions. The bill would also give sexually
exploited minors the right to have victim advocates and a support
person of the victim's choosing present at any interview by law
enforcement authorities, district attorneys, or defense attorneys. By
imposing new duties on local law enforcement and criminal justice
authorities, the bill would impose a state-mandated local program.
(3) Existing law establishes the Child Abuse and Neglect Reporting
Act, which requires specified persons who have knowledge of or
observe a child in their professional capacity or within the scope of
their employment, whom the person knows or reasonably suspects has
been the victim of child abuse or neglect to make a report to a child
protective agency, as defined. Existing law defines "sexual abuse"
to include sexual assault or sexual exploitation, as specified, for
purposes of these provisions.
This bill would clarify that a sexually exploited minor, as
described in paragraph (1) above, is a form of sexual exploitation
within the definition of "sexual abuse" for purposes of these
provisions.
(4) Existing law, part of the Child Abuse and Neglect Reporting
Act, states the Legislature's intent that in each county the law
enforcement agencies and the county welfare or probation department
shall develop and implement cooperative arrangements in order to
coordinate existing duties in connection with the investigation of
suspected child abuse or neglect cases.
This bill, instead, would require the law enforcement agencies
and county welfare or probation department in each county to develop
and implement a joint policy with cooperative arrangements in order
to coordinate existing duties in connection with the investigation of
suspected child abuse or neglect cases, including the appropriate
handling of sexually exploited minors, as described in paragraph (1)
above. By imposing new duties on local authorities, the bill would
impose a state-mandated local program.
(5) Existing law provides that a child who has been abused or
neglected, as described, is within the jurisdiction of the juvenile
court and may be adjudged a dependent child of the juvenile court.
This provision applies, among other things, if the child has been
sexually abused, or there is a substantial risk that the child will
be sexually abused, as defined in the Child Abuse and Neglect
Reporting Act, by his or her parent or guardian or a member of his or
her household, or the parent or guardian has failed to adequately
protect the child from sexual abuse when the parent or guardian knew
or reasonably should have known that the child was in danger of
sexual abuse.
This bill would clarify that a sexually exploited minor may be
found within the jurisdiction of the juvenile court and adjudged a
dependent child of the juvenile court.
(6) Existing law authorizes a peace officer to take a minor that
the officer has reasonable cause to believe is within the
jurisdiction of the juvenile court, either as a dependent child or as
a ward of the court, into temporary custody without a warrant, as
specified. Existing law provides procedures for processing the minor
thereafter.
This bill would require an officer who takes a sexually exploited
minor into temporary custody pursuant to specified provisions to take
the minor to a secure protective facility designated by the county
that offers victim services to establish a safety plan and secure
appropriate placement for the minor. The bill would require the
receiving organization to take immediate steps to notify the minor's
parent, guardian, or a responsible relative of the place to which the
minor was taken, and would require the officer to make a report of
suspected child abuse or neglect. By imposing new duties on local law
enforcement, the bill would impose a state-mandated local program.
(7) Existing law requires the release within 48 hours of a minor
who is taken into temporary custody by a peace officer or probation
officer for suspected abuse or neglect, unless a petition to declare
him or her a dependent child has been filed.
This bill would authorize a sexually exploited minor who is taken
into temporary custody by a peace officer or probation officer to be
held in custody in excess of 48 hours in order to establish a safety
plan and secure appropriate placement for the minor.
(8) 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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
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. It is the intent of the Legislature that minors
arrested for prostitution should not be prosecuted, but rather
treated as victims. These children should be taken to a secure
detention center or safe house and processed the same as a person who
is a victim of sexual abuse or domestic violence.
SEC. 2. Section 647 of the Penal Code is amended to read:
647. Every person who commits any of the following acts is guilty
of disorderly conduct, a misdemeanor:
(a) Who solicits anyone to engage in or who engages in lewd or
dissolute conduct in any public place or in any place open to the
public or exposed to public view.
(b) Who solicits or who agrees to engage in or who engages in any
act of prostitution. A person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or she
manifests an acceptance of an offer or solicitation to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution.
No An agreement to engage in an act of
prostitution shall not constitute a violation of this
subdivision unless some act, in addition to the agreement, is done
within this state in furtherance of the commission of an act of
prostitution by the person agreeing to engage in that act. As used in
this subdivision, "prostitution" includes any lewd act between
persons for money or other consideration.
(c) Who accosts other persons in any public place or in any place
open to the public for the purpose of begging or soliciting alms.
(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.
(e) Who loiters or wanders upon the streets or from place to place
without apparent reason or business and who refuses to identify
himself or herself and to account for his or her presence when
requested by any peace officer so to do, if the surrounding
circumstances would indicate to a reasonable person that the public
safety demands this identification.
(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.
(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour treatment
and evaluation of inebriates. A peace officer may place a person in
civil protective custody with that kind and degree of force which
would be lawful were he or she effecting an arrest for a misdemeanor
without a warrant. No A person who has
been placed in civil protective custody shall not
thereafter be subject to any criminal prosecution or juvenile court
proceeding based on the facts giving rise to this placement. This
subdivision shall not apply to the following persons:
(1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.
(2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor in
addition to subdivision (f).
(3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.
(h) Who loiters, prowls, or wanders upon the private property of
another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, "loiter" means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.
(i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of any
inhabited building or structure, without visible or lawful business
with the owner or occupant.
(j) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.
(k) (1) Any person who looks through a hole or opening, into, or
otherwise views, by means of any instrumentality, including, but not
limited to, a periscope, telescope, binoculars, camera, motion
picture camera, or camcorder, the interior of a bedroom, bathroom,
changing room, fitting room, dressing room, or tanning booth, or the
interior of any other area in which the occupant has a reasonable
expectation of privacy, with the intent to invade the privacy of a
person or persons inside. This subdivision shall not apply to those
areas of a private business used to count currency or other
negotiable instruments.
(2) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person under or through the clothing being worn by that
other person, for the purpose of viewing the body of, or the
undergarments worn by, that other person, without the consent or
knowledge of that other person, with the intent to arouse, appeal to,
or gratify the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances in which
the other person has a reasonable expectation of privacy.
(3) (A) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person who may be in a state of full or partial undress,
for the purpose of viewing the body of, or the undergarments worn
by, that other person, without the consent or knowledge of that other
person, in the interior of a bedroom, bathroom, changing room,
fitting room, dressing room, or tanning booth, or the interior of any
other area in which that other person has a reasonable expectation
of privacy, with the intent to invade the privacy of that other
person.
(B) Neither of the following is a defense to the crime specified
in this paragraph:
(i) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.
(ii) The victim was not in a state of full or partial undress.
() If a person under 18 years of age has violated subdivision (a)
or (b), a peace officer, if he or she is reasonably able to do so,
shall place the person, or cause him or her to be placed, in civil
protective custody on a safety hold as a sexually exploited minor.
The person shall be taken to a secure protective facility, designated
pursuant to Section 307.6 of the Welfare and Institutions Code. A
peace officer may place a minor in civil protective custody on a
safety hold with that kind and degree of force that would be lawful
were he or she effecting an arrest for a misdemeanor without a
warrant. A person who has been placed in civil protective custody on
a safety hold as a sexually exploited minor shall not thereafter be
subject to any criminal prosecution or juvenile court proceeding
based on the facts giving rise to this placement.
(l)
(m) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been once previously convicted
of a violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court,
upon a court trial, or is admitted by the defendant, the defendant
shall be imprisoned in a county jail for a period of not less than 45
days and shall not be eligible for release upon completion of
sentence, on probation, on parole, on work furlough or work release,
or on any other basis until he or she has served a period of not less
than 45 days in a county jail. In all cases in which probation is
granted, the court shall require as a condition thereof that the
person be confined in a county jail for at least 45 days. In no event
does the court have the power to absolve a person who violates this
subdivision from the obligation of spending at least 45 days in
confinement in a county jail.
In any accusatory pleading charging a violation of subdivision
(b), if the defendant has been previously convicted two or more times
of a violation of that subdivision, each of these previous
convictions shall be charged in the accusatory pleading. If two or
more of these previous convictions are found to be true by the jury,
upon a jury trial, or by the court, upon a court trial, or are
admitted by the defendant, the defendant shall be imprisoned in a
county jail for a period of not less than 90 days and shall not be
eligible for release upon completion of sentence, on probation, on
parole, on work furlough or work release, or on any other basis until
he or she has served a period of not less than 90 days in a county
jail. In all cases in which probation is granted, the court shall
require as a condition thereof that the person be confined in a
county jail for at least 90 days. In no event does the court have the
power to absolve a person who violates this subdivision from the
obligation of spending at least 90 days in confinement in a county
jail.
In addition to any punishment prescribed by this section, a court
may suspend, for not more than 30 days, the privilege of the person
to operate a motor vehicle pursuant to Section 13201.5 of the Vehicle
Code for any violation of subdivision (b) that was committed within
1,000 feet of a private residence and with the use of a vehicle. In
lieu of the suspension, the court may order a person's privilege to
operate a motor vehicle restricted, for not more than six months, to
necessary travel to and from the person's place of employment or
education. If driving a motor vehicle is necessary to perform the
duties of the person's employment, the court may also allow the
person to drive in that person's scope of employment.
SEC. 3. Section 653.22 of the Penal Code is amended to read:
653.22. (a) It is unlawful for any person to loiter in any public
place with the intent to commit prostitution. This intent is
evidenced by acting in a manner and under circumstances which
that openly demonstrate the purpose of
inducing, enticing, or soliciting prostitution, or procuring another
to commit prostitution.
(b) Among the circumstances that may be considered in determining
whether a person loiters with the intent to commit prostitution are
that the person:
(1) Repeatedly beckons to, stops, engages in conversations with,
or attempts to stop or engage in conversations with passersby,
indicative of soliciting for prostitution.
(2) Repeatedly stops or attempts to stop motor vehicles by hailing
the drivers, waving arms, or making any other bodily gestures, or
engages or attempts to engage the drivers or passengers of the motor
vehicles in conversation, indicative of soliciting for prostitution.
(3) Has been convicted of violating this section, subdivision (a)
or (b) of Section 647, or any other offense relating to or involving
prostitution, within five years of the arrest under this section.
(4) Circles an area in a motor vehicle and repeatedly beckons to,
contacts, or attempts to contact or stop pedestrians or other
motorists, indicative of soliciting for prostitution.
(5) Has engaged, within six months prior to the arrest under this
section, in any behavior described in this subdivision, with the
exception of paragraph (3), or in any other behavior indicative of
prostitution activity.
(c) The list of circumstances set forth in subdivision (b) is not
exclusive. The circumstances set forth in subdivision (b) should be
considered particularly salient if they occur in an area that is
known for prostitution activity. Any other relevant circumstances may
be considered in determining whether a person has the requisite
intent. Moreover, no one circumstance or combination of circumstances
is in itself determinative of intent. Intent must
shall be determined based on an evaluation of the
particular circumstances of each case.
(d) If a person under 18 years of age has violated subdivision
(a), a peace officer, if he or she is reasonably able to do so, shall
place the person, or cause him or her to be placed, in civil
protective custody on a safety hold as a sexually exploited minor.
The person shall be taken to a secure protective facility, designated
pursuant to Section 307.6 of the Welfare and Institutions Code. A
peace officer may place a minor in civil protective custody on a
safety hold with that kind and degree of force that would be lawful
were he or she effecting an arrest for a misdemeanor without a
warrant. A person who has been placed in civil protective custody on
a safety hold as a sexually exploited minor shall not thereafter be
subject to any criminal prosecution or juvenile court proceeding
based on the facts giving rise to this placement.
SEC. 4. Section 653.23 of the Penal Code is amended to read:
653.23. (a) It is unlawful for any person to do either of the
following:
(1) Direct, supervise, recruit, or otherwise aid another person in
the commission of a violation of subdivision (b) of Section 647 or
subdivision (a) of Section 653.22.
(2) Collect or receive all or part of the proceeds earned from an
act or acts of prostitution committed by another person in violation
of subdivision (b) of Section 647.
(b) Among the circumstances that may be considered in determining
whether a person is in violation of subdivision (a) are that the
person does the following:
(1) Repeatedly speaks or communicates with another person who is
acting in violation of subdivision (a) of Section 653.22.
(2) Repeatedly or continuously monitors or watches another person
who is acting in violation of subdivision (a) of Section 653.22.
(3) Repeatedly engages or attempts to engage in conversation with
pedestrians or motorists to solicit, arrange, or facilitate an act of
prostitution between the pedestrians or motorists and another person
who is acting in violation of subdivision (a) of Section 653.22.
(4) Repeatedly stops or attempts to stop pedestrians or motorists
to solicit, arrange, or facilitate an act of prostitution between
pedestrians or motorists and another person who is acting in
violation of subdivision (a) of Section 653.22.
(5) Circles an area in a motor vehicle and repeatedly beckons to,
contacts, or attempts to contact or stop pedestrians or other
motorists to solicit, arrange, or facilitate an act of prostitution
between the pedestrians or motorists and another person who is acting
in violation of subdivision (a) of Section 653.22.
(6) Receives or appears to receive money from another person who
is acting in violation of subdivision (a) of Section 653.22.
(7) Engages in any of the behavior described in paragraphs (1) to
(6), inclusive, in regard to or on behalf of two or more persons who
are in violation of subdivision (a) of Section 653.22.
(8) Has been convicted of violating this section, subdivision (a)
or (b) of Section 647, subdivision (a) of Section 653.22, Section
266h, or 266i, or any other offense relating to or involving
prostitution within five years of the arrest under this section.
(9) Has engaged, within six months prior to the arrest under
subdivision (a), in any behavior described in this subdivision, with
the exception of paragraph (8), or in any other behavior indicative
of prostitution activity.
(c) The list of circumstances set forth in subdivision (b) is not
exclusive. The circumstances set forth in subdivision (b) should be
considered particularly salient if they occur in an area that is
known for prostitution activity. Any other relevant circumstances may
be considered. Moreover, no one circumstance or combination of
circumstances is in itself determinative. A violation of subdivision
(a) shall be determined based on an evaluation of the particular
circumstances of each case.
(d) Nothing in this section shall preclude the prosecution of a
suspect for a violation of Section 266h or 266i or for any other
offense, or for a violation of this section in conjunction with a
violation of Section 266h or 266i or any other offense.
(e) If a person under 18 years of age has violated subdivision
(a), a peace officer, if he or she is reasonably able to do so, shall
place the person, or cause him or her to be placed, in civil
protective custody on a safety hold as a sexually exploited minor.
The person shall be taken to a secure protective facility, designated
pursuant to Section 307.6 of the Welfare and Institutions Code. A
peace officer may place a minor in civil protective custody on a
safety hold with that kind and degree of force that would be lawful
were he or she effecting an arrest for a misdemeanor without a
warrant. A person who has been placed in civil protective custody on
a safety hold as a sexually exploited minor shall not thereafter be
subject to any criminal prosecution or juvenile court proceeding
based on the facts giving rise to this placement.
SEC. 5. Section 679.01 of the Penal Code is amended to read:
679.01. As used in this title, the following definitions shall
control:
(a) "Crime" means an act committed in this state which, if
committed by a competent adult, would constitute a misdemeanor or
felony.
(b) "Sexually exploited minor" means a person under 18 years of
age who has been placed in civil protective custody on a safety hold
based on a violation of subdivision (a) or (b) of Section 647,
subdivision (a) of Section 653.22, or subdivision (a) of Section
653.23.
(b)
(c) "Victim" means a person against whom a crime has
been committed. "Victim" includes a sexually exploited minor.
(c)
(d) "Witness" means any person who has been or is
expected to testify for the prosecution, or who, by reason of having
relevant information, is subject to call or likely to be called as a
witness for the prosecution, whether or not any action or proceeding
has yet been commenced.
SEC. 6. Section 679.04 of the Penal Code is amended to read:
679.04. (a) A victim of sexual assault as the result of any
offense specified in paragraph (1) of subdivision (b) of Section
264.2 , or a sexually exploited minor, has the right to
have victim advocates and a support person of the victim's choosing
present at any interview by law enforcement authorities, district
attorneys, or defense attorneys. However, the support person may be
excluded from an interview by law enforcement or the district
attorney if the law enforcement authority or the district attorney
determines that the presence of that individual would be detrimental
to the purpose of the interview. As used in this section, "victim
advocate" means a sexual assault counselor, as defined in Section
1035.2 of the Evidence Code, or a victim advocate working in a center
established under Article 2 (commencing with Section 13835) of
Chapter 4 of Title 6 of Part 4.
(b) (1) Prior to the commencement of the initial interview by law
enforcement authorities or the district attorney pertaining to any
criminal action arising out of a sexual assault, a victim of sexual
assault as the result of any offense specified in Section 264.2 shall
be notified orally or in writing by the attending law enforcement
authority or district attorney that the victim has the right to have
victim advocates and a support person of the victim's choosing
present at the interview or contact. This subdivision applies to
investigators and agents employed or retained by law enforcement or
the district attorney.
(2) At the time the victim is advised of his or her rights
pursuant to paragraph (1), the attending law enforcement authority or
district attorney shall also advise the victim of the right to have
victim advocates and a support person present at any interview by the
defense attorney or investigators or agents employed by the defense
attorney.
(c) An initial investigation by law enforcement to determine
whether a crime has been committed and the identity of the suspects
shall not constitute a law enforcement interview for purposes of this
section.
SEC. 7. Section 11165.1 of the Penal Code is amended to read:
11165.1. As used in this article, "sexual abuse" means sexual
assault or sexual exploitation as defined by the following:
(a) "Sexual assault" means conduct in violation of one or more of
the following sections: Section 261 (rape), subdivision (d) of
Section 261.5 (statutory rape), 264.1 (rape in concert), 285
(incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of
subdivision (c) of Section 288 (lewd or lascivious acts upon a
child), 288a (oral copulation), 289 (sexual penetration), or 647.6
(child molestation).
(b) Conduct described as "sexual assault" includes, but is not
limited to, all of the following:
(1) Any penetration, however slight, of the vagina or anal opening
of one person by the penis of another person, whether or not there
is the emission of semen.
(2) Any sexual contact between the genitals or anal opening of one
person and the mouth or tongue of another person.
(3) Any intrusion by one person into the genitals or anal opening
of another person, including the use of any object for this purpose,
except that, it does not include acts performed for a valid medical
purpose.
(4) The intentional touching of the genitals or intimate parts
(including the breasts, genital area, groin, inner thighs, and
buttocks) or the clothing covering them, of a child, or of the
perpetrator by a child, for purposes of sexual arousal or
gratification, except that, it does not include acts which may
reasonably be construed to be normal caretaker responsibilities;
interactions with, or demonstrations of affection for, the child; or
acts performed for a valid medical purpose.
(5) The intentional masturbation of the perpetrator's genitals in
the presence of a child.
(c) "Sexual exploitation" refers to any of the following:
(1) Conduct involving matter depicting a minor engaged in obscene
acts in violation of Section 311.2 (preparing, selling, or
distributing obscene matter) or subdivision (a) of Section 311.4
(employment of minor to perform obscene acts).
(2) Any person who knowingly promotes, aids, or assists, employs,
uses, persuades, induces, or coerces a child, or any person
responsible for a child's welfare, who knowingly permits or
encourages a child to engage in, or assist others to engage in,
prostitution or a live performance involving obscene sexual conduct,
or to either pose or model alone or with others for purposes of
preparing a film, photograph, negative, slide, drawing, painting, or
other pictorial depiction, involving obscene sexual conduct. For the
purpose of this section, "person responsible for a child's welfare"
means a parent, guardian, foster parent, or a licensed administrator
or employee of a public or private residential home, residential
school, or other residential institution.
(3) Any person who depicts a child in, or who knowingly develops,
duplicates, prints, or exchanges, any film, photograph, video tape,
negative, or slide in which a child is engaged in an act of obscene
sexual conduct, except for those activities by law enforcement and
prosecution agencies and other persons described in subdivisions (c)
and (e) of Section 311.3.
(4) Conduct involving a violation of subdivision (a) or (b) of
Section 647, subdivision (a) of Section 653.22, or subdivision (a) of
Section 653.23 by a minor.
SEC. 8. Section 11166.3 of the Penal Code is amended to read:
11166.3. (a) The Legislature intends that in
In each county , the law enforcement agencies
and the county welfare or probation department shall develop and
implement a joint policy with cooperative arrangements in
order to coordinate existing duties in connection with the
investigation of suspected child abuse or neglect cases ,
including the appropriate handling of sexually exploited minors,
as described in paragraph (4) of subdivision (c) of Section 11165.1
. The local law enforcement agency having jurisdiction over a
case reported under Section 11166 shall report to the county welfare
or probation department that it is investigating the case within 36
hours after starting its investigation. The county welfare department
or probation department shall, in cases where a minor is a victim of
actions specified in Section 288 of this code and a petition has
been filed pursuant to Section 300 of the Welfare and Institutions
Code with regard to the minor, evaluate what action or actions would
be in the best interest of the child victim. Notwithstanding any
other provision of law, the county welfare department or probation
department shall submit in writing its findings and the reasons
therefor to the district attorney on or before the completion of the
investigation. The written findings and the reasons therefor shall be
delivered or made accessible to the defendant or his or her counsel
in the manner specified in Section 859.
(b) The local law enforcement agency having jurisdiction over a
case reported under Section 11166 shall report to the district office
of the State Department of Social Services any case reported under
this section if the case involves a facility specified in paragraph
(5) or (6) of subdivision (a) of Section 1502, Section 1596.750 or
1596.76 of the Health and Safety Code, and the licensing of the
facility has not been delegated to a county agency. The
law enforcement agency shall send a
copy of its investigation report and any other pertinent materials to
the licensing agency upon the request of the licensing agency.
SEC. 9. Section 300 of the Welfare and Institutions Code is
amended to read:
300. Any A child who comes within
any of the following descriptions is within the jurisdiction of the
juvenile court , which may adjudge that person to be a
dependent child of the court:
(a) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child's parent or guardian. For
the purposes of this subdivision, a court may find there is a
substantial risk of serious future injury based on the manner in
which a less serious injury was inflicted, a history of repeated
inflictions of injuries on the child or the child's siblings, or a
combination of these and other actions by the parent or guardian
which that indicate the child is at
risk of serious physical harm. For purposes of this subdivision,
"serious physical harm" does not include reasonable and
age-appropriate spanking to the buttocks where
if there is no evidence of serious physical injury.
(b) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child, or the willful or
negligent failure of the child's parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or negligent failure
of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent's or guardian's mental illness, developmental disability, or
substance abuse. No A child shall
not be found to be a person described by this subdivision
solely due to the lack of an emergency shelter for the family.
Whenever If it is alleged that a child
comes within the jurisdiction of the court on the basis of the parent'
s or guardian's willful failure to provide adequate medical treatment
or specific decision to provide spiritual treatment through prayer,
the court shall give deference to the parent's or guardian's medical
treatment, nontreatment, or spiritual treatment through prayer alone
in accordance with the tenets and practices of a recognized church or
religious denomination, by an accredited practitioner thereof, and
shall not assume jurisdiction unless necessary to protect the child
from suffering serious physical harm or illness. In making its
determination, the court shall consider (1) the nature of the
treatment proposed by the parent or guardian, (2) the risks to the
child posed by the course of treatment or nontreatment proposed by
the parent or guardian, (3) the risk, if any, of the course of
treatment being proposed by the petitioning agency, and (4) the
likely success of the courses of treatment or nontreatment proposed
by the parent or guardian and agency. The child shall continue to be
a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious
physical harm or illness.
(c) The child is suffering serious emotional damage, or is at
substantial risk of suffering serious emotional damage, evidenced by
severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, as a result of the conduct of the
parent or guardian or who has no parent or guardian capable of
providing appropriate care. No A child
shall not be found to be a person described by this
subdivision if the willful failure of the parent or guardian to
provide adequate mental health treatment is based on a sincerely held
religious belief and if a less intrusive judicial intervention is
available.
(d) The child has been sexually abused, or there is a substantial
risk that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code , specifically including sexual
exploitation of a minor, as described in paragraph (4) of subdivision
(c) of Section 11165.1 , by his or her parent or guardian or a
member of his or her household, or the parent or guardian has failed
to adequately protect the child from sexual abuse when the parent or
guardian knew or reasonably should have known that the child was in
danger of sexual abuse.
(e) The child is under the age of five years
of age and has suffered severe physical abuse by a parent,
or by any person known by the parent, if the parent knew or
reasonably should have known that the person was physically abusing
the child. For the purposes of this subdivision, "severe physical
abuse" means any of the following: any single act of abuse which
causes physical trauma of sufficient severity that, if left
untreated, would cause permanent physical disfigurement, permanent
physical disability, or death; any single act of sexual abuse
which that causes significant bleeding,
deep bruising, or significant external or internal swelling; or more
than one act of physical abuse, each of which causes bleeding, deep
bruising, significant external or internal swelling, bone fracture,
or unconsciousness; or the willful, prolonged failure to provide
adequate food. A child may shall not be
removed from the physical custody of his or her parent or guardian
on the basis of a finding of severe physical abuse unless the social
worker has made an allegation of severe physical abuse pursuant to
Section 332.
(f) The child's parent or guardian caused the death of another
child through abuse or neglect.
(g) The child has been left without any provision for support;
physical custody of the child has been voluntarily surrendered
pursuant to Section 1255.7 of the Health and Safety Code and the
child has not been reclaimed within the 14-day period specified in
subdivision (e) of that section; the child's parent has been
incarcerated or institutionalized and cannot arrange for the care of
the child; or a relative or other adult custodian with whom the child
resides or has been left is unwilling or unable to provide care or
support for the child, the whereabouts of the parent are unknown, and
reasonable efforts to locate the parent have been unsuccessful.
This subdivision includes sexual exploitation of a minor, as
described in paragraph (4) of subdivision (c) of Section 11165.1,
that is not otherwise subject to subdivision (d).
(h) The child has been freed for adoption by one or both parents
for 12 months by either relinquishment or termination of parental
rights or an adoption petition has not been granted.
(i) The child has been subjected to an act or acts of cruelty by
the parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from an
act or acts of cruelty when if the
parent or guardian knew or reasonably should have known that the
child was in danger of being subjected to an act or acts of cruelty.
(j) The child's sibling has been abused or neglected, as defined
in subdivision (a), (b), (d), (e), or (i), and there is a substantial
risk that the child will be abused or neglected, as defined in those
subdivisions. The court shall consider the circumstances surrounding
the abuse or neglect of the sibling, the age and gender of each
child, the nature of the abuse or neglect of the sibling, the mental
condition of the parent or guardian, and any other factors the court
considers probative in determining whether there is a substantial
risk to the child.
It is the intent of the Legislature that nothing in this section
disrupt the family unnecessarily or intrude inappropriately into
family life, prohibit the use of reasonable methods of parental
discipline, or prescribe a particular method of parenting. Further,
nothing in this section is intended to limit the offering of
voluntary services to those families in need of assistance but who do
not come within the descriptions of this section. To the extent that
savings accrue to the state from child welfare services funding
obtained as a result of the enactment of the act that enacted this
section, those savings shall be used to promote services
which that support family maintenance and family
reunification plans, such as client transportation, out-of-home
respite care, parenting training, and the provision of temporary or
emergency in-home caretakers and persons teaching and demonstrating
homemaking skills. The Legislature further declares that a physical
disability, such as blindness or deafness, is no bar to the raising
of happy and well-adjusted children and that a court's determination
pursuant to this section shall center upon whether a parent's
disability prevents him or her from exercising care and control. The
Legislature further declares that a child whose parent has been
adjudged a dependent child of the court pursuant to this section
shall not be considered to be at risk of abuse or neglect solely
because of the age, dependent status, or foster care status of the
parent.
As used in this section, "guardian" means the legal guardian of
the child.
SEC. 10. Section 307.6 is added to the Welfare and Institutions
Code, to read:
307.6. (a) Notwithstanding Section 307, an officer who takes a
minor suspected of being a person described in Section 300 into
temporary custody pursuant to subdivision (a) of Section 305 shall,
in a case in which the minor has been placed in civil protective
custody on a safety hold as a sexually exploited minor based on a
violation of subdivision (a) or (b) of Section 647, subdivision (a)
of Section 653.22, or subdivision (a) of Section 653.23, take the
minor to a secure protective facility designated by the county that
offers victim services to establish a safety plan and secure
appropriate placement for the minor. Organizations or programs
receiving referrals pursuant to this section shall have a contract or
an agreement with the county to provide shelter care or counseling.
Employees of a program receiving referrals pursuant to this section
are "child care custodians" for the purpose of the requirements of
Section 11165.7 of the Penal Code. The receiving organization shall
take immediate steps to notify the minor's parent, guardian, or a
responsible relative of the place to which the minor was taken.
(b) The officer shall make a report of suspected child abuse or
neglect as required pursuant to Section 11166 of the Penal Code.
SEC. 11. Section 313 of the Welfare and Institutions Code is
amended to read:
313. (a) Whenever (1)
If a minor is taken into custody by a peace officer or
probation officer, except when such the
minor willfully misrepresents himself as 18 or more years of age,
such the minor shall be released within
48 hours after having been taken into custody, excluding nonjudicial
days, unless within said that period
of time a petition to declare him or her a dependent child
has been filed pursuant to the provisions of this
chapter.
(b) Whenever
(2) If a minor who has
been is held in custody for more than six hours
by the probation officer is and
subsequently released and no without the
filing of a petition is filed , the
probation officer shall prepare a written explanation of why
the minor was held for holding the minor in
custody for more than six hours. The written explanation shall be
prepared within 72 hours after the minor is released from custody and
filed in the record of the case. A copy of the written explanation
shall be sent to the parents, guardian, or other person having care
or custody of the minor.
(b) If a minor is taken into custody by a peace officer or
probation officer, and taken to a secure protective facility pursuant
to Section 307.6, the minor may be held in custody in excess of 48
hours in order to establish a safety plan and secure appropriate
placement for the minor.
SEC. 12. Section 626.1 is added to the Welfare and Institutions
Code, to read:
626.1. (a) Notwithstanding Section 626, an officer who takes a
minor into temporary custody under Section 625 shall, in any case in
which a minor has been placed in civil protective custody on a safety
hold as a sexually exploited minor based on a violation of
subdivision (a) or (b) of Section 647, subdivision (a) of Section
653.22, or subdivision (a) of Section 653.23, take the minor to a
secure protective facility designated by the county that offers
victim services to establish a safety plan and secure appropriate
placement for the minor. Organizations or programs receiving
referrals pursuant to this section shall have a contract or an
agreement with the county to provide shelter care or counseling.
Employees of a program receiving referrals pursuant to this section
are "child care custodians" for the purpose of the requirements of
Section 11165.7 of the Penal Code. The receiving organization shall
take immediate steps to notify the minor's parent, guardian, or a
responsible relative of the place to which the minor was taken.
(b) The officer shall make a report of suspected child abuse or
neglect as required pursuant to Section 11166 of the Penal Code.
SEC. 13. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.