BILL NUMBER: AB 499 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 7, 2008
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 11166.3, 13828, and
13828.1 of the Penal Code, and to amend Sections 300 and 313
of, and to add Sections 307.6 and 626.1 to,
and to add Chapter 4.3 (commencing with Section 18259) to Part 6 of
Division 9 of, the Welfare and Institutions Code, relating to
sexually exploited minors.
LEGISLATIVE COUNSEL'S DIGEST
AB 499, as amended, 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
14 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 under 14 years
of age 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. The bill would
require a peace officer to similarly place a detained or arrested
sexually exploited minor who is 14 to 17 years of age, inclusive, in
a secure detention center, the local juvenile justice center, or a
secure safe house, and would defer prosecution or provide for a
deferred entry of judgment of that minor during participation in a
program for sexually exploited minors, as specified. Upon completion
of that program, the bill would require the dismissal of charges
against the minor. 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 declares the findings of the Legislature that
there is a need to develop and provide training programs regarding
the handling of judicial proceedings involving the victims of child
sexual abuse, and the intent of the Legislature to provide training
programs to ensure that children who are victims of sexual abuse
shall be treated with consideration during judicial and
administrative hearings.
This bill would extend those findings to sexually exploited
minors.
(6) Existing law requires the Judicial Council to establish an
ongoing program to provide training for the judicial branch of
government relating to the handling of child sexual abuse cases from
funds appropriated for that purpose.
This bill would extend that program of training to include cases
of sexual exploitation of minors.
(5)
(7) 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)
(8) 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 detention center, the local juvenile
justice center, or 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 each detained minor to undergo a specified assessment .
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)
(9) 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 , and as
specified for a minor under 14 years of age .
(10) Existing law declares the findings of the Legislature that
there is a need to develop programs to ameliorate, reduce, and
ultimately eliminate the trauma of child sexual abuse, and that, for
the purposes of developing and providing these programs and services,
and for the training of, and providing information to, city and
county personnel throughout the state, it is necessary to expand
specified services.
This bill would create a pilot project within the County of
Alameda for the purposes of creating, implementing, and delivering a
standardized training curricula that will provide training for
certain county employees on the sexual exploitation of minors in
Alameda County, including state certification of sexually exploited
minor crisis counselors, upon appropriation, and as specified. By
adding to the duties of county employees, the bill would impose a
state-mandated local program.
(8)
(11) 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
finding of the Legislature that those who sexually
exploit minors are predators within our society and should be
prosecuted to the fullest extent of the law. It is the intent of the
Legislature that minors arrested and later determined to be sexually
explo ited minors should be 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. 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. 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.
() (1) If a person under 18
14 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 or 626.1 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 under 14 years of age
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.
(2) If a person 14 or 15 years of age has violated subdivision (a)
or (b), and is assessed to be a sexually exploited minor, a peace
officer, if he or she is reasonably able to do so, shall place the
person in a secure detention center, the local juvenile justice
center, or a secure safe house as a sexually exploited minor. Any
prosecution against a minor who is 14 or 15 years of age and assessed
to be a sexually exploited minor shall be deferred while the minor
participates in a program for sexually exploited minors, as defined
by statute, and, upon completion, any prosecution shall be dismissed.
(3) If a person 16 or 17 years of age has violated subdivision (a)
or (b), and is assessed to be a sexually exploited minor, a peace
officer, if he or she is reasonably able to do so, shall place the
person in a secure detention center, the local juvenile justice
center, or a secure safe house as a sexually exploited minor. Any
minor 16 or 17 years of age who is detained or against whom charges
are filed or sustained under this section and who participates in a
program for sexually exploited minors, as defined by statute, shall
receive a deferred entry of judgment, and, upon completion, the
charges against the minor shall be dismissed.
(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 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 shall be determined
based on an evaluation of the particular circumstances of each case.
(d) If a person under 18 14 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 or
626.1 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
under 14 years of age 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.
(e) If a person 14 or 15 years of age has violated subdivision (a)
and is assessed to be a sexually exploited minor, a peace officer,
if he or she is reasonably able to do so, shall place the person in a
secure detention center, the local juvenile justice center, or a
secure safe house as a sexually exploited minor. Any prosecution
against a minor who is 14 or 15 years of age and assessed to be a
sexually exploited minor shall be deferred while the minor
participates in a program for sexually exploited minors, as defined
by statute, and, upon completion, any prosecution shall be dismissed.
(f) If a person 16 or 17 years of age has violated subdivision (a)
and is assessed to be a sexually exploited minor, a peace officer,
if he or she is reasonably able to do so, shall place the person in a
secure detention center, the local juvenile justice center, or a
secure safe house as a sexually exploited minor. Any minor 16 or 17
years of age who is detained or against whom charges are filed or
sustained under this section and who participates in a program for
sexually exploited minors, as defined by statute, shall receive a
deferred entry of judgment, and, upon completion, the charges against
the minor shall be dismissed.
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 14 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 or
626.1 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.
(f) If a person 14 or 15 years of age has violated subdivision (a)
and is assessed to be a sexually exploited minor, a peace officer,
if he or she is reasonably able to do so, shall place the person in a
secure detention center, the local juvenile justice center, or a
secure safe house as a sexually exploited minor. Any prosecution
against a minor who is 14 or 15 years of age and assessed to be a
sexually exploited minor shall be deferred while the minor
participates in a program for sexually exploited minors, as defined
by statute, and, upon completion, any prosecution shall be dismissed.
(g) If a person 16 or 17 years of age has violated subdivision (a)
and is assessed to be a sexually exploited minor, a peace officer,
if he or she is reasonably able to do so, shall place the person in a
secure detention center, the local juvenile justice center, or a
secure safe house as a sexually exploited minor. Any minor 16 or 17
years of age who is detained or against whom charges are filed or
sustained under this section and who participates in a program for
sexually exploited minors, as defined by statute, shall receive a
deferred entry of judgment, and, upon completion, the charges against
the minor shall be dismissed.
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 detained for a violation of the law or
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.
(c) "Victim" means a person against whom a crime has been
committed. "Victim" includes a sexually exploited minor.
(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) 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. 8.5. Section 13828 of the Penal
Code is amended to read:
13828. The Legislature hereby finds and declares that there is a
need to develop and provide training programs regarding the handling
of judicial proceedings involving the victims of child sexual abuse
and the sexual exploitation of minors . It is the intent
of the Legislature in enacting this chapter to provide training
programs which will ensure that children who are the victims of
sexual abuse and sexual exploitation shall be treated with
special consideration during all proceedings related to allegations
of child sexual abuse and sexual exploitation , including
all trials and administrative hearings.
SEC. 8.7. Section 13828.1 of the Penal
Code is amended to read:
13828.1. From funds appropriated for those purposes, the Judicial
Council shall establish and maintain an ongoing program to provide
training for the judicial branch of government relating to the
handling of cases involving child sexual abuse
cases and the sexual exploitation of minors .
SEC. 9. Section 300 of the Welfare and Institutions Code is
amended to read:
300. 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 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 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. 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. 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. 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 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 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
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 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 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) (1) 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
arrested or 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 of the Penal Code , subdivision
(a) of Section 653.22 of the Penal Code , or subdivision
(a) of Section 653.23 of the Penal Code , take the minor
to a secure detention center, the local juvenile justice center,
or 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
(2) Every minor detained under arrest or by a civil protective
custody hold shall undergo an assessment to determine if the minor is
a sexually exploited minor.
(3) 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 An in-custody treatment
stabilization program for sexually exploited minors shall include,
but not be limited to, crisis mental or medical health services,
deprogramming, empowerment, advocacy, case planning, and intensive
case management.
(4) 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) (1) If a minor is taken into custody by a peace officer
or probation officer, except when the minor willfully misrepresents
himself as 18 or more years of age, the minor shall be released
within 48 hours after having been taken into custody, excluding
nonjudicial days, unless within that period of time a petition to
declare him or her a dependent child or a sexually exploited
minor under 14 years of age has been filed pursuant to this
chapter.
(2) If a minor is held in custody for more than six hours by the
probation officer and subsequently released without the filing of a
petition, the probation officer shall prepare a written explanation
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.
(b) If a minor under 14 years of age is taken into custody by a
peace officer or probation officer and taken to a secure protective
facility pursuant to Section 307.6 or 626.1, or if a minor who is 14
to 17 years of age, inclusive, has been arrested and detained in a
secure detention center, the local juvenile justice center, or a
secure safe house, 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. However, any minor held as a sexually
exploited detainee or a sexually exploited minor under 14 years of
age shall be brought before the court within 48 hours at which time
the court, upon a finding that the minor is a sexually exploited
minor, shall order the minor held in a secure setting for his or her
safety to allow for the participation and completion of the sexually
exploited minor program or for the determination of 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 of the Penal Code ,
subdivision (a) of Section 653.22 of the Penal Code , or
subdivision (a) of Section 653.23 of the Penal Code , 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. Chapter 4.3 (commencing with Section
18259) is added to Part 6 of Division 9 of the Welfare and
Institutions Code , to read:
CHAPTER 4.3. SEXUALLY EXPLOITED MINORS PILOT PROJECT
18259. (a) There is hereby created a pilot project in the County
of Alameda for the purpose of creating, implementing, and delivering
a standardized training curricula that will provide training on the
sexual exploitation of minors in Alameda County and other counties,
as funding permits. The standardized training curricula shall
include, but not be limited to, advocacy or case planning, including
advocacy from the point of detainment, court advocacy, advocacy and
joint case planning with probation officers, developing and
understanding case studies, and intensive case management and
advocacy throughout any legal process involving the district attorney'
s office and law enforcement, deprogramming, empowerment, including
surviving child sexual exploitation workshop series, self-sufficiency
workshop series, and self-discovery and self-esteem-based workshop
series, intensive case management, including working with a child
welfare worker or parents and probation officers on placement
options, educational options, employment options, engagement
activities, and other services recommended for the minor or requested
by the minor commencing with the custody process through and after
release.
(b) The pilot project in the County of Alameda shall design and
create a training curricula for advocates and case managers
consisting of a 40-hour sexually exploited minor crisis counseling
training. The training shall be administered by a nonprofit
organization that is established specifically to serve sexually
exploited children and will include state certification as sexually
exploited minor crisis counselors upon completion of the 40-hour
training. The 40-hour sexually exploited minor crisis counseling
training shall include, but not be limited to, understanding child
sexual exploitation or commercial child sexual exploitation, the
impact of child sexual exploitation or commercial child sexual
exploitation, understanding childhood sexual abuse, overview of
sexual assault or rape, suicide prevention, sexually exploited minors
interfacing with law enforcement and the child welfare and juvenile
justice systems, domestic violence and sexually exploited minors,
sexually exploited minors with disabilities, crisis intervention,
substance abuse and sexually exploited children, overview of
post-traumatic stress disorder, survivors of childhood sexual abuse,
lesbian, gay, questioning, bisexual, and transgendered sexually
exploited children, sexually exploited children from immigrant
families, and mandated reporting.
(c) The standardized training shall be designed for law
enforcement, in cooperation with police officer standards training,
for prosecutors and public defenders, in cooperation with the
Prosecutors and Public Defenders Education and Training Program
created under Title 1.5 (commencing with Section 11500) of Part 4 of
the Penal Code and the California District Attorneys Association, for
the judiciary, in cooperation with the Judicial Council and the
Administrative Office of the Courts, for social service providers and
probation officers, in cooperation with the California Probation,
Parole and Correctional Association, and for advocates, in
cooperation with local rape crisis centers and domestic violence
service providers.
(d) Implementation of this chapter is contingent upon an
appropriation in the annual Budget Act or another statute that
provides sufficient funding for the pilot project.
SEC. 13. SEC. 14. 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.