BILL NUMBER: SB 1195 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 12, 2010
AMENDED IN SENATE MARCH 24, 2010
INTRODUCED BY Senator Wyland
FEBRUARY 18, 2010
An act to amend Section 288 Sections 208,
220, 264, 264.1, 269, 286, 288, 288a, 288.5, and 289
of the Penal Code, relating to sex offenders.
LEGISLATIVE COUNSEL'S DIGEST
SB 1195, as amended, Wyland. Sex offenders: lewd and
lascivious acts. punishment.
Existing law provides punishments for sex crimes.
This bill would change the punishment for various sex crimes from
a determinate sentence to an indeterminate sentence with a life term,
as specified. The bill would require the court to impose any
applicable enhancements consecutive to the life term for these
crimes. Because this bill would change the penalty for certain sex
crimes, it would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Existing law makes it a felony punishable by imprisonment in the
state prison for 3, 6, or 8 years for any person to willfully and
lewdly commit any lewd or lascivious act upon or with the body, or
any part or member thereof, of a child who is under the age of 14
years, with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of that person or the child by use
of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person.
This bill would instead make the crime above punishable by
imprisonment in the state prison for 10 years to life.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 208 of the Penal
Code is amended to read:
208. (a) Kidnapping is punishable by imprisonment in the state
prison for three, five, or eight years.
(b) Notwithstanding any other provision in this section,
kidnapping committed with the intent to violate Section 261, 286,
288, 288a, or 289 is punishable by imprisonment in the state prison
for three years to life, five years to life, or eight years to life.
The court shall impose any applicable enhancements consecutive to the
life term.
(c) Notwithstanding any other provision in this section,
kidnapping as defined in subdivision (b) of Section 207 is punishable
by imprisonment in the state prison for five years to life, eight
years to life, or eleven years to life. The court shall impose any
applicable enhancements consecutive to the life term.
(b)
(d) If the person kidnapped is under 14 years of age at
the time of the commission of the crime, the kidnapping is
punishable by imprisonment in the state prison for 5, 8, or 11 years.
This subdivision is not applicable to the taking, detaining, or
concealing, of a minor child by a biological parent, a natural
father, as specified in Section 7611 of the Family Code, an adoptive
parent, or a person who has been granted access to the minor child by
a court order.
(c)
(e) In all cases in which probation is granted, the
court shall, except in unusual cases where the interests of justice
would best be served by a lesser penalty, require as a condition of
the probation that the person be confined in the county jail for 12
months. If the court grants probation without requiring the defendant
to be confined in the county jail for 12 months, it shall specify
its reason or reasons for imposing a lesser penalty.
SEC. 2. Section 220 of the Penal Code
is amended to read:
220. (a) Except as provided in subdivision (b), any person who
assaults another with intent to commit mayhem, rape, sodomy, oral
copulation, or any violation of Section 264.1, 288, or 289 shall be
punished by imprisonment in the state prison for two years to
life , four years to life , or six years to
life. The court shall impose any applicable enhancements consecutive
to the life term .
(b) Any person who, in the commission of a burglary of the first
degree, as defined in subdivision (a) of Section 460, assaults
another with intent to commit rape, sodomy, oral copulation, or any
violation of Section 264.1, 288, or 289 shall be punished by
imprisonment in the state prison for life with the possibility of
parole.
SEC. 3. Section 264 of the Penal Code
is amended to read:
264. (a) Rape, as defined in Section 261 or 262, is punishable by
imprisonment in the state prison for three years to life
, six years to life , or eight years to life. The
court shall impose any applicable enhancements consecutive to the
life term .
(b) In addition to any punishment imposed under this section the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates Section 261 or 262 with the proceeds of this
fine to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
SEC. 4. Section 264.1 of the Penal Code
is amended to read:
264.1. The provisions of Section 264 notwithstanding, in any case
in which the defendant, voluntarily acting in concert with another
person, by force or violence and against the will of the victim,
committed an act described in Section 261, 262, or 289, either
personally or by aiding and abetting the other person, that fact
shall be charged in the indictment or information and if found to be
true by the jury, upon a jury trial, or if found to be true by the
court, upon a court trial, or if admitted by the defendant, the
defendant shall suffer confinement in the state prison for five
years to life , seven years to life , or nine years
to life. The court shall impose any applicable enhancements
consecutive to the life term .
SEC. 5. Section 269 of the Penal Code
is amended to read:
269. (a) Any person who commits any of the following acts upon a
child who is under 14 years of age and seven or more years younger
than the person is guilty of aggravated sexual assault of a child:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Rape or sexual penetration, in concert, in violation of
Section 264.1.
(3) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(4) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(b) Any person who violates this section is guilty of a felony and
shall be punished by imprisonment in the state prison for
15 years to life without the possibility of parole
.
(c) The court shall impose a consecutive sentence for each offense
that results in a conviction under this section if the crimes
involve separate victims or involve the same victim on separate
occasions as defined in subdivision (d) of Section 667.6.
SEC. 6. Section 286 of the Penal Code
is amended to read:
286. (a) Sodomy is sexual conduct consisting of contact between
the penis of one person and the anus of another person. Any sexual
penetration, however slight, is sufficient to complete the crime of
sodomy.
(b) (1) Except as provided in Section 288, any person who
participates in an act of sodomy with another person who is under 18
years of age shall be punished by imprisonment in the state prison,
or in a county jail for not more than one year.
(2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of sodomy with another person who
is under 16 years of age shall be guilty of a felony.
(c) (1) Any person who participates in an act of sodomy with
another person who is under 14 years of age and more than 10 years
younger than he or she shall be punished by imprisonment in the state
prison for three, six, or eight years.
(2) Any person who commits an act of sodomy when the act is
accomplished against the victim's will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person shall be punished by imprisonment in the
state prison for three years to life , six years to
life , or eight years eight years to life. The court shall
impose any applicable enhancemen ts consecutive to the
life term .
(3) Any person who commits an act of sodomy where the act is
accomplished against the victim's will by threatening to retaliate in
the future against the victim or any other person, and there is a
reasonable possibility that the perpetrator will execute the threat,
shall be punished by imprisonment in the state prison for three
years to life , six years to life , or eight years
to life. The court shall impose any applicable enhancements
consecutive to the life term .
(d) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy when the act is accomplished against
the victim's will by means of force or fear of immediate and
unlawful bodily injury on the victim or another person or where the
act is accomplished against the victim's will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison for
five years to life , seven years to life , or
nine years to life. The court shall impose any applicable
enhancements consecutive to the life term .
(e) Any person who participates in an act of sodomy with any
person of any age while confined in any state prison, as defined in
Section 4504, or in any local detention facility, as defined in
Section 6031.4, shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.
(f) Any person who commits an act of sodomy, and the victim is at
the time unconscious of the nature of the act and this is known to
the person committing the act, shall be punished by imprisonment in
the state prison for three years to life , six years
to life , or eight years to life. The court shall impose
any applicable enhancements consecutive to the life term
. As used in this subdivision, "unconscious of the nature of
the act" means incapable of resisting because the victim meets one of
the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's
fraudulent representation that the sexual penetration served a
professional purpose when it served no professional purpose.
(g) Except as provided in subdivision (h), a person who commits an
act of sodomy, and the victim is at the time incapable, because of a
mental disorder or developmental or physical disability, of giving
legal consent, and this is known or reasonably should be known to the
person committing the act, shall be punished by imprisonment in the
state prison for three years to life , six years to
life , or eight years to life. The court shall impose any
applicable enhancements consecutive to the life term .
Notwithstanding the existence of a conservatorship pursuant to the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime, that a mental
disorder or developmental or physical disability rendered the alleged
victim incapable of giving consent.
(h) Any person who commits an act of sodomy, and the victim is at
the time incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act, and both
the defendant and the victim are at the time confined in a state
hospital for the care and treatment of the mentally disordered or in
any other public or private facility for the care and treatment of
the mentally disordered approved by a county mental health director,
shall be punished by imprisonment in the state prison, or in a county
jail for not more than one year. Notwithstanding the existence of a
conservatorship pursuant to the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.
(i) Any person who commits an act of sodomy, where the victim is
prevented from resisting by an intoxicating or anesthetic substance,
or any controlled substance, and this condition was known, or
reasonably should have been known by the accused, shall be punished
by imprisonment in the state prison for three years to life
, six years to life , or eight years to life.
The court shall impose any applicable enhancements consecutive to the
life term .
(j) Any person who commits an act of sodomy, where the victim
submits under the belief that the person committing the act is the
victim's spouse, and this belief is induced by any artifice,
pretense, or concealment practiced by the accused, with intent to
induce the belief, shall be punished by imprisonment in the state
prison for three, six, or eight years.
(k) Any person who commits an act of sodomy, where the act is
accomplished against the victim's will by threatening to use the
authority of a public official to incarcerate, arrest, or deport the
victim or another, and the victim has a reasonable belief that the
perpetrator is a public official, shall be punished by imprisonment
in the state prison for three, six, or eight years.
As used in this subdivision, "public official" means a person
employed by a governmental agency who has the authority, as part of
that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.
( l ) As used in subdivisions (c) and (d), "threatening
to retaliate" means a threat to kidnap or falsely imprison, or
inflict extreme pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court, however,
shall take into consideration the defendant's ability to pay, and no
defendant shall be denied probation because of his or her inability
to pay the fine permitted under this subdivision.
SEC. 7. Section 288 of the Penal Code
is amended to read:
288. (a) Any person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes
provided for in Part 1, upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent
of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child, is guilty of a felony and
shall be punished by imprisonment in the state prison for three
years to life , six years to life , or eight years
to life. The court shall impose any applicable enhancements
consecutive to the life term .
(b) (1) Any person who commits an act described in subdivision (a)
by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for three years to life , six years to life ,
or eight years to life. The court shall impose any applicable
enhancements consecutive to the life term .
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person, with the intent described in
subdivision (a), is guilty of a felony and shall be punished by
imprisonment in the state prison for three years to life ,
six years to life , or eight years to life. The
court shall impose any applicable enhancements consecutive to the
life term .
(c) (1) Any person who commits an act described in subdivision (a)
with the intent described in that subdivision, and the victim is a
child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person, with the intent described in
subdivision (a), is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year.
(d) In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim or dependent person and shall
do whatever is necessary, within existing budgetary resources, and
constitutionally permissible to prevent psychological harm to the
child victim or to prevent psychological harm to the dependent person
victim resulting from participation in the court process.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime.
Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs pursuant to
Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elder or dependent persons:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent persons and
postsecondary educational institutions that serve dependent persons
or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that provides
health services or social services to elder or dependent persons,
including, but not limited to, in-home supportive services, as
defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent person" means any person who has a physical or
mental impairment that substantially restricts his or her ability to
carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities have
significantly diminished because of age. "Dependent person" includes
any person who is admitted as an inpatient to a 24-hour health
facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working at
these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph (2)
of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
person under care.
SEC. 8. Section 288a of the Penal Code
is amended to read:
288a. (a) Oral copulation is the act of copulating the mouth of
one person with the sexual organ or anus of another person.
(b) (1) Except as provided in Section 288, any person who
participates in an act of oral copulation with another person who is
under 18 years of age shall be punished by imprisonment in the state
prison, or in a county jail for a period of not more than one year.
(2) Except as provided in Section 288, any person over the age of
21 years who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.
(c) (1) Any person who participates in an act of oral copulation
with another person who is under 14 years of age and more than 10
years younger than he or she shall be punished by imprisonment in the
state prison for three years to life , six years to
life , or eight years to life. The court shall impose any
applicable enhancements consecutive to the life term .
(2) Any person who commits an act of oral copulation when the act
is accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by
imprisonment in the state prison for three years to life ,
six years to life , or eight years to life. The
court shall impose any applicable enhancements consecutive to the
life term .
(3) Any person who commits an act of oral copulation where the act
is accomplished against the victim's will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison for
three years to life , six years to life , or
eight years to life. The court shall impose any applicable
enhancements consecutive to the life term .
(d) Any person who, while voluntarily acting in concert with
another person, either personally or by aiding and abetting that
other person, commits an act of oral copulation (1) when the act is
accomplished against the victim's will by means of force or fear of
immediate and unlawful bodily injury on the victim or another person,
or (2) where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the
perpetrator will execute the threat, or (3) where the victim is at
the time incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act, shall be
punished by imprisonment in the state prison for five years to
life , seven years to life , or nine years to
life. The court shall impose any applicable enhancements consecutive
to the life term . Notwithstanding the appointment of a
conservator with respect to the victim pursuant to the provisions of
the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000)
of Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime described under
paragraph (3), that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving legal
consent.
(e) Any person who participates in an act of oral copulation while
confined in any state prison, as defined in Section 4504 or in any
local detention facility as defined in Section 6031.4, shall be
punished by imprisonment in the state prison, or in a county jail for
a period of not more than one year.
(f) Any person who commits an act of oral copulation and the
victim is at the time unconscious of the nature of the act, as
specified in paragraph (1) or (2), and this is known to the person
committing the act, shall be punished by imprisonment in the state
prison for three years to life, six years to life, or eight years to
life. The court shall impose any applicable enhancements consecutive
to the life term. Any person who commits an act of oral copulation
, and the victim is at the time unconscious of the nature of
the act , as specified in paragraph (3) or (4), and this
is known to the person committing the act, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years. As used in this subdivision, "unconscious of the nature of
the act" means incapable of resisting because the victim meets one of
the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's
fraudulent representation that the oral copulation served a
professional purpose when it served no professional purpose.
(g) Except as provided in subdivision (h), any person who commits
an act of oral copulation, and the victim is at the time incapable,
because of a mental disorder or developmental or physical disability,
of giving legal consent, and this is known or reasonably should be
known to the person committing the act, shall be punished by
imprisonment in the state prison, for three years to life
, six years to life , or eight years to life. The
court shall impose any applicable enhancements consecutive to the
life term . Notwithstanding the existence of a conservatorship
pursuant to the
provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and Institutions Code),
the prosecuting attorney shall prove, as an element of the crime,
that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving consent.
(h) Any person who commits an act of oral copulation, and the
victim is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act, and both the defendant and the victim are at the time
confined in a state hospital for the care and treatment of the
mentally disordered or in any other public or private facility for
the care and treatment of the mentally disordered approved by a
county mental health director, shall be punished by imprisonment in
the state prison, or in a county jail for a period of not more than
one year. Notwithstanding the existence of a conservatorship pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.
(i) Any person who commits an act of oral copulation, where the
victim is prevented from resisting by any intoxicating or anesthetic
substance, or any controlled substance, and this condition was known,
or reasonably should have been known by the accused, shall be
punished by imprisonment in the state prison for a period of three
years to life , six years to life , or eight
years to life. The court shall impose any applicable
enhancements consecutive to the life term .
(j) Any person who commits an act of oral copulation, where the
victim submits under the belief that the person committing the act is
the victim's spouse, and this belief is induced by any artifice,
pretense, or concealment practiced by the accused, with intent to
induce the belief, shall be punished by imprisonment in the state
prison for a period of three, six, or eight years.
(k) Any person who commits an act of oral copulation, where the
act is accomplished against the victim's will by threatening to use
the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years.
As used in this subdivision, "public official" means a person
employed by a governmental agency who has the authority, as part of
that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.
( l ) As used in subdivisions (c) and (d), "threatening
to retaliate" means a threat to kidnap or falsely imprison, or to
inflict extreme pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section, with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
SEC. 9. Section 288.5 of the Penal Code
is amended to read:
288.5. (a) Any person who either resides in the same home with
the minor child or has recurring access to the child, who over a
period of time, not less than three months in duration, engages in
three or more acts of substantial sexual conduct with a child under
the age of 14 years at the time of the commission of the offense, as
defined in subdivision (b) of Section 1203.066, or three or more acts
of lewd or lascivious conduct, as defined in Section 288, with a
child under the age of 14 years at the time of the commission of the
offense is guilty of the offense of continuous sexual abuse of a
child and shall be punished by imprisonment in the state prison for a
term of 6, 12, or 16 years six years to
life, 12 years to life, or 16
years to life. The court shall impose any applicable
enhancements consecutive to the life term .
(b) To convict under this section the trier of fact, if a jury,
need unanimously agree only that the requisite number of acts
occurred not on which acts constitute the requisite number.
(c) No other act of substantial sexual conduct, as defined in
subdivision (b) of Section 1203.066, with a child under 14 years of
age at the time of the commission of the offenses, or lewd and
lascivious acts, as defined in Section 288, involving the same victim
may be charged in the same proceeding with a charge under this
section unless the other charged offense occurred outside the time
period charged under this section or the other offense is charged in
the alternative. A defendant may be charged with only one count under
this section unless more than one victim is involved in which case a
separate count may be charged for each victim.
SEC. 10. Section 289 of the Penal Code
is amended to read:
289. (a) (1) Any person who commits an act of sexual penetration
when the act is accomplished against the victim's will by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person shall be punished by
imprisonment in the state prison for three years to life ,
six years to life , or eight years to life. The
court shall impose any applicable enhancements consecutive to the
life term .
(2) Any person who commits an act of sexual penetration when the
act is accomplished against the victim's will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison for
three years to life , six years to life , or
eight years to life. The court shall impose any applicable
enhancements consecutive to the life term .
(b) Except as provided in subdivision (c), any person who commits
an act of sexual penetration, and the victim is at the time
incapable, because of a mental disorder or developmental or physical
disability, of giving legal consent, and this is known or reasonably
should be known to the person committing the act or causing the act
to be committed, shall be punished by imprisonment in the state
prison for three years to life , six years to life
, or eight years to life. The court shall impose any
applicable enhancements consecutive to the life term .
Notwithstanding the appointment of a conservator with respect to the
victim pursuant to the provisions of the Lanterman-Petris-Short Act
(Part 1 (commencing with Section 5000) of Division 5 of the Welfare
and Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.
(c) Any person who commits an act of sexual penetration, and the
victim is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act or causing the act to be committed and both the defendant and
the victim are at the time confined in a state hospital for the care
and treatment of the mentally disordered or in any other public or
private facility for the care and treatment of the mentally
disordered approved by a county mental health director, shall be
punished by imprisonment in the state prison, or in a county jail for
a period of not more than one year. Notwithstanding the existence of
a conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime, that a mental
disorder or developmental or physical disability rendered the alleged
victim incapable of giving legal consent.
(d) Any person who commits an act of sexual penetration and
the victim is at the time unconscious of the nature of the act, as
specified in paragraph (1) or (2), and this is known to the person
committing the act or causing the act to be committed, shall be
punished by imprisonment in the state prison for three years to life,
six years to life, or eight years to life. The court shall impose
any applicable enhancements consecutive to the life term. Any person
who commits an act of sexual penetration , and the victim is at
the time unconscious of the nature of the act , as specified in
paragraph (3) or (4), and this is known to the person
committing the act or causing the act to be committed, shall be
punished by imprisonment in the state prison for three, six, or eight
years. As used in this subdivision, "unconscious of the nature of
the act" means incapable of resisting because the victim meets one of
the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's
fraudulent representation that the sexual penetration served a
professional purpose when it served no professional purpose.
(e) Any person who commits an act of sexual penetration when the
victim is prevented from resisting by any intoxicating or anesthetic
substance, or any controlled substance, and this condition was known,
or reasonably should have been known by the accused, shall be
punished by imprisonment in the state prison for a period of three
years to life , six years to life , or eight
years to life. The court shall impose any applicable
enhancements consecutive to the life term .
(f) Any person who commits an act of sexual penetration when the
victim submits under the belief that the person committing the act or
causing the act to be committed is the victim's spouse, and this
belief is induced by any artifice, pretense, or concealment practiced
by the accused, with intent to induce the belief, shall be punished
by imprisonment in the state prison for a period of three, six, or
eight years.
(g) Any person who commits an act of sexual penetration when the
act is accomplished against the victim's will by threatening to use
the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years.
As used in this subdivision, "public official" means a person
employed by a governmental agency who has the authority, as part of
that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.
(h) Except as provided in Section 288, any person who participates
in an act of sexual penetration with another person who is under 18
years of age shall be punished by imprisonment in the state prison or
in the county jail for a period of not more than one year.
(i) Except as provided in Section 288, any person over the age of
21 years who participates in an act of sexual penetration with
another person who is under 16 years of age shall be guilty of a
felony.
(j) Any person who participates in an act of sexual penetration
with another person who is under 14 years of age and who is more than
10 years younger than he or she shall be punished by imprisonment in
the state prison for three years to life , six years
to life , or eight years to life. The court shall impose
any applicable enhancements consecutive to the life term .
(k) As used in this section:
(1) "Sexual penetration" is the act of causing the penetration,
however slight, of the genital or anal opening of any person or
causing another person to so penetrate the defendant's or another
person's genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument,
or device, or by any unknown object.
(2) "Foreign object, substance, instrument, or device" shall
include any part of the body, except a sexual organ.
(3) "Unknown object" shall include any foreign object, substance,
instrument, or device, or any part of the body, including a penis,
when it is not known whether penetration was by a penis or by a
foreign object, substance, instrument, or device, or by any other
part of the body.
( l ) As used in subdivision (a), "threatening to
retaliate" means a threat to kidnap or falsely imprison, or inflict
extreme pain, serious bodily injury or death.
(m) As used in this section, "victim" includes any person who the
defendant causes to penetrate the genital or anal opening of the
defendant or another person or whose genital or anal opening is
caused to be penetrated by the defendant or another person and who
otherwise qualifies as a victim under the requirements of this
section.
SEC. 11. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 288 of the Penal Code is
amended to read:
288. (a) Any person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes
provided for in Part 1, upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent
of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child, is guilty of a felony and
shall be punished by imprisonment in the state prison for three,
six, or eight years.
(b) (1) Any person who commits an act described in subdivision (a)
by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for 10 years to life.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person, with the intent described in
subdivision (a), is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight years.
(c) (1) Any person who commits an act described in subdivision (a)
with the intent described in that subdivision, and the victim is a
child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person, with the intent described in
subdivision (a), is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year.
(d) In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim or dependent person and shall
do whatever is necessary, within existing budgetary resources, and
constitutionally permissible to prevent psychological harm to the
child victim or to prevent psychological harm to the dependent person
victim resulting from participation in the court process.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime.
Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs pursuant to
Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elder or dependent persons:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent persons and
postsecondary educational institutions that serve dependent persons
or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that provides
health services or social services to elder or dependent persons,
including, but not limited to, in-home supportive services, as
defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent person" means any person who has a physical or
mental impairment that substantially restricts his or her ability to
carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities have
significantly diminished because of age. "Dependent person" includes
any person who is admitted as an inpatient to a 24-hour health
facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working at
these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph (2)
of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
person under care.