BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 203 (Harman)
As Amended April 16, 2009
Hearing date: January 12, 2010
Penal Code
JM:dl
VOTE ONLY
CHILD PORNOGRAPHY
HISTORY
Source: Author
Prior Legislation: None
Support: San Bernardino County Sheriff; California District
Attorneys Association
Opposition:Taxpayers for Improving Public Safety
(PLEASE NOTE: COMMENT 2 BELOW DESCRIBES AMENDMENTS TO BE TAKEN
IN COMMITTEE.)
KEY ISSUES
FOR PURPOSES OF CHILD PORNOGRAPHY CRIMES, SHOULD "DISTRIBUTE" BE
EXPRESSLY DEFINED IN STATUTE TO INCLUDE TRANSMISSION OVER THE
INTERNET?
SHOULD THE LEGISLATURE EXPRESS APPROVAL OF A COURT DECISION
HOLDING THAT CHILD PORNOGRAPHY IS LIMITED TO VISUAL DEPICTIONS
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OF MINORS ENGAGED IN SEXUAL CONDUCT, AS SPECIFIED?
(CONTINUED)
SHOULD THE DEPICTION OF EACH INDIVIDUAL MINOR IN CHILD PORNOGRAPHY
MATERIAL, AS DEFINED, BE THE BASIS OF A SEPARATE CHILD PORNOGRAPHY
CHARGE AND CONVICTION?
SHOULD THE DEPICTION OF EACH INDIVIDUAL IN OBSCENE MATERIAL, AS
DEFINED, BE THE BASIS OF A SEPARATE CHARGE AND CONVICTION?
PURPOSE
The purposes of this bill are to 1) provide that each depiction
of a separate individual child engaged in sexual conduct
constitutes a separate child pornography crime; 2) provide that
each depiction of a separate person in obscene material
constitutes a separate crime; 3) state legislative approval of
a court decision holding that child pornography is limited to
"visual" depictions of minors engaged in sexual conduct; and 4)
expressly state in statute that "distribution" of child
pornography includes transmission over the Internet.
Existing law provides that possessing or importing into
California any obscene matter for sale or distribution is guilty
of a misdemeanor for a first conviction. A second or subsequent
conviction is a felony, with increased fines. (Pen. Code
311.2, subd. (a) and 311.9.)
Existing law provides that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct, with the intent to
distribute, exhibit, or exchange such material, is guilty of
either a misdemeanor or a felony, punishable by imprisonment in
the county jail up to one year or in the state prison for 16
months, 2 or 3 years and a fine not to exceed $10,000. (Pen.
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Code 311.1.)
Existing law specifies that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct for commercial purposes
is guilty of a felony, punishable by imprisonment in the state
prison for two, three, or six years and a fine up to $100,000.
(Pen. Code 311.2, subd. (b).)
Existing law provides that every person who sends, brings,
possesses, prepares, publishes, produces, duplicates or prints
any matter depicting a person under the age of l8 years engaging
in or simulating sexual conduct to distribute, exhibit, or
exchange with a minor is guilty of a felony, punishable by
imprisonment in the state prison for 16 months, 2 or 3 years.
It is not necessary to prove commercial consideration or that
the matter is obscene. (Pen. Code 311.2, subd. (d).)
Existing law provides that any person who hires or uses a minor
to assist in the preparation or distribution of obscene matter
is guilty of a misdemeanor. If the person has a prior
conviction, he or she is guilty of a felony with imprisonment in
the state prison for 16 months, 2 or 3 years. (Pen. Code
311.4, subd. (a).)
Existing law provides that any person who hires or uses a minor
to assist in the possession, preparation or distribution of
obscene matter for commercial purposes is guilty of a felony,
punishable by imprisonment in the state prison for three, six,
or eight years. (Pen. Code 311.4, subd. (b).)
Existing law states that every person who writes, creates, or
solicits the publication or distribution of advertising or other
promotional material, or who in any manner promotes the sale,
distribution, or exhibition of matter represented or held out by
him or her to be obscene, is guilty of a misdemeanor. (Pen.
Code 311.5.)
Existing law provides that a person who violates Section 311.5
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(promotional material involving obscenity) or Section 311.2
(distribution or sale of obscene material or child pornography),
except subdivision (b) of Section 311.2 (commercial distribution
of obscene matter depicting minors), is a misdemeanor punishable
by a fine of not more than $1000 plus $5 for each additional
unit of prohibited material, not to exceed $10,000, or by
imprisonment in the county jail for not more than six months
plus one day for each additional unit of prohibited material,
not to exceed 360 days in the county jail, or by both
such fine and imprisonment. If such person has previously been
convicted of any offense in this chapter, or of a violation of
Section 313.1, a violation of Section 311.2 or 311.5,
except subdivision (b) of Section 311.2, is punishable as a
felony. (Pen. Code 311.9, subd. (a).
Existing law provides that a person who violates Section 311.7
(conditioning book, newspaper, et cetera, distribution or
franchise on acceptance of obscene material) is guilty of a
misdemeanor, punishable by a fine of not more than $1000 or
imprisonment in the county jail for not more than 6 months, or
both. For a second and subsequent offense the defendant shall
be punished by a fine of not more than $2000, or by imprisonment
in the county jail for not more than one year, or both. If such
person has been twice convicted of a violation of crimes
involving illegal sexual material, a violation of Section 311.7
is punishable as a felony. (Pen. Code 311.9, subd. (c).)
Existing law provides that possession of material that depicts a
person under 18 years of age engaged in actual or simulated
sexual conduct (sexual posing, masturbation, sex acts) is an
alternate felony-misdemeanor, punishable by imprisonment in
the county jail for up to 1 year, or by imprisonment in state
prison for 16 months, 2 years, or 3 years, or by a fine of up to
$2500, or both (Pen. Code 311.11, subd. (a).)
Existing law provides that if a criminal defendant is convicted
of possession of material that depicts a person under 18 years
of age engaged in actual or simulated sexual conduct (sexual
posing, masturbation, sex acts), and the defendant has been
previously convicted of any crime for which the defendant must
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register as a sex offender, the defendant is guilty of a felony,
punishable by a term of 2, 4, or 6 years in prison and a fine of
up to $10,000. (Pen. Code 311.11, subd. (b).)
Existing law provides that crimes involving depictions of minors
engaged in actual or simulated sexual conduct) does not apply to
"drawings, figurines, statutes, or any film rated by the Motion
Picture Association of America [MPAA]." (Pen. Code 311.11,
subd. (d).)
Existing law , as interpreted by relevant appellate decisions,
provides that Penal Code Section 311.11 "requires a real minor
and also requires knowledge of minority on the part of the
perpetrator." (People v. Kurey (2001) 88 Cal.App.4th 840, 847.)
Existing law provides that the state can prohibit non-obscene
matter that depicts a person under the age of 18 personally
engaging in or personally simulating sexual conduct. Such laws
are based on the compelling state interest in protecting
children from abuse. (New York v. Ferber (1982) 458 U.S. 747.)
Existing law includes the following definitions relevant to this
bill:
"Matter" is defined as "any book, magazine, newspaper,
or other printed or written material, or any picture,
drawing, photograph, motion picture, or other pictorial
representation, or any statue or other figure, or any
recording, transcription, or mechanical, chemical, or
electrical reproduction, or any other article, equipment,
machine, or material." Matter also includes "live or
recorded telephone messages if transmitted, disseminated,
or distributed as part of a commercial transaction." (Pen.
Code 311, subd. (b).)
Sexual conduct, actual or simulated, is defined as:
masturbation, sexual intercourse, oral copulation, anal
intercourse, bestiality, sexual sadism, lewd or lascivious
penetration of the vagina or rectum by any object,
exhibition of the genital, pubic or rectal areas for
purposes of sexual stimulation of the viewer, and lewdly
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performed excretory functions. (Pen. Code 311.4.)
Obscene matter is matter, taken as a whole, that to the
average person, applying contemporary statewide standards,
appeals to the prurient interest, that, taken as a
whole, depicts or describes sexual conduct in a patently
offensive way, and that, taken as a whole, lacks serious
literary, artistic, political, or scientific value. (Pen.
Code 311, subd. (a).)
"Distribute" is defined as to "transfer possession of,
whether with or without consideration." (Pen. Code 311,
subd. (d).)
This bill expressly states that to "distribute," obscenity or
child pornography laws includes making the material "available
for access or possession over the Internet."
This bill states Legislative approval of the holding of People
v. Cantrell (1992) 7 Cal.App.4th 523, that "depict[ions of] a
person under the age of 18 years personally engaging in or
personally simulating sexual conduct" is limited to visual
works.
This bill provides that "depiction of each individual person" in
child pornography or obscene material "shall constitute a
distinct and separate offense." The bill specifies that the
intention of the provisions concerning convictions based on each
person depicted in child pornography or obscenity is to abrogate
two specified appellate decisions -- People v. Manfredi (2008)
169 Cal. App. 4th 622, and People v. Hertzig (2007) 156
Cal.App.4th 398.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
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of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .Under the PLRA, any prisoner release order that
we issue will be narrowly drawn, extend no further
than necessary to correct the violation of
constitutional rights, and be the least intrusive
means necessary to correct the violation of those
rights. For this reason, it is our present intention
to adopt an order requiring the State to develop a
plan to reduce the prison population to 120% or 145%
of the prison's design capacity (or somewhere in
between) within a period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill , as proposed to be amended in Committee (see Comment
2, infra), does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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1. Need for this Bill
According to the author:
Also in current law, Penal Code Chapter 7.5 relative
to child pornography completely ignores peer-to-peer
file transfers which are an increasingly popular
method of file-sharing over the Internet. Pedophiles
make downloaded images of child sexual exploitation
available for distribution to others by virtue of
enabling the "share" function in their peer-to-peer
program, which makes those images available to
millions of people over the Internet.
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SB 203 remedies this evidentiary problem by amending
the definition of "distribute," as used in Chapter
7.5, to include "making available for access or
possession over the Internet." This will allow
prosecutors to charge a felony punishable by up to six
years when a person makes child pornography available
via a peer-to-peer file program such as Limewire,
Kazaa, and Gnutella.
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2. Amendment to be Taken in Committee Narrowing the Scope of the
Bill
The author has agreed to narrow this bill to its provision
expressly stating in statute that the distribution of child
pornography includes making the material available through the
Internet. All other provisions will be amended out of the bill.
Existing law defines distribution in the child pornography and
obscenity statutes to mean to "transfer possession of, whether
with or without consideration." Experts have noted that most
child pornography today is distributed over the Internet. The
Internet allows essentially instantaneous distribution and
sharing of child pornography on a scale that could not be
imagined 50 years ago when the child pornography laws were
initially enacted. The placement of child pornography in a
file that is accessible to others on a file-sharing network --
typically a peer-to-peer (P2P) network, e-mail newsgroup or
interest group -- essentially transfers possession of that
material. Those with access to the file can download the
material and store it on their own computers or transfer it to
others. A person who makes child pornography accessible through
a file-sharing system has effectively distributed that material
to any person who has access to the shared files.
This bill expressly defines distribution in this context to
include making child pornography or obscene material available
through the Internet. Committee counsel was unable to find a
case directly on this issue. However, California Supreme Court
decisional law on what constitutes commercial purpose for
distributing child pornography indicates that placing material
on the Internet would constitute distribution. In particular,
the Court in People v. Cochrane (2002) 28 Cal.4th 396, found
that a defendant had a commercial purpose where he placed child
pornography on the Internet with the intent to obtain similar
material from others. The Court, with obvious significance,
noted that the Internet allowed wide distribution or
dissemination of child pornography and any other material.
Thus, the Court in Cochrane appears to have implicitly found
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that placing child pornography on the Internet constitutes
distribution of the material.
The Court in Cochrane held:
[T]he commercial purpose was shown by the planning and
effort required to create the images that appear on
the videotape, including various lighting techniques
to enhance the quality of the video, and the
defendant's possession of other equipment that would
further his goal of producing pornography for
commercial purposes. The commercial purpose was also
shown by defendant's subsequent posting of still
photographs from the videotape on the Internet. As the
Attorney General observes, the posting was done to
attract the attention of pedophiles who trade and
market child pornography and who could not be reached
by other means. Defendant's attempt to attract broad
attention to the still images from the videotape when
he posted them on the Internet strongly suggests that
at the time he produced the tape defendant intended to
commercialize it." (Id. at p. 405 (emphasis added).)
DOES EXISTING LAW IMPLICITLY PROVIDE THAT PLACING CHILD
PORNOGRAPHY ON THE INTERNET CONSTITUTES DISTRIBUTION OF SUCH
MATERIAL?
SHOULD RELEVANT STATUTES EXPRESSLY STATE THAT DISTRIBUTION
INCLUDES MAKING CHILD PORNOGRAPHY AVAILABLE OVER THE INTERNET?
WOULD THIS AMENDMENT REDUCE THE LIKELIHOOD OF JURY CONFUSION
ABOUT THE ISSUE?
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