BILL ANALYSIS
SB 1253
Page 1
SENATE THIRD READING
SB 1253 (Tony Strickland)
As Amended April 27, 2010
Majority vote
SENATE VOTE :34-0
PUBLIC SAFETY 5-0
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|Ayes:|Hagman, Gilmore, Hill, | | |
| |Portantino, Skinner | | |
| | | | |
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SUMMARY : Prohibits a person convicted of lewd or lascivious
acts upon or with the body of a child, or of continuous sexual
abuse of a child, from being placed or residing within one-half
mile of the child victim's residence for the duration of his or
her probation term unless the court, on the record, states its
reasons for finding that this residency restriction would not
serve the best interest of the victim.
EXISTING LAW :
1)Provides that probation shall not be granted to, nor shall the
execution or imposition of sentence be suspended for, any of
the following persons:
a) A person who is convicted of violating Penal Code
Section 288 (lewd or lascivious act) or 288.5 (continuous
sexual abuse of a child) when the act is committed by the
use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or
another person;
b) A person who caused bodily injury on the child victim in
committing a violation of Penal Code Section 288 or 288.5;
c) A person who is convicted of a violation of Penal Code
Section 288 or 288.5 and who was a stranger to the child
victim or befriended the child victim for the purpose of
committing an act in violation of Penal Code Section 288 or
288.5, unless the defendant honestly and reasonably
believed the victim was 14 years of age or older;
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d) A person who used a weapon during the commission of a
violation of Penal Code Section 288 or 288.5;
e) A person who is convicted of committing a violation of
Section 288 or 288.5 and who has been previously convicted
of a violation of rape, rape of a spouse, rape or
penetration of genital or anal openings by a foreign
object, inveiglement or enticement of an unmarried female
under 18 for purposes of prostitution, unlawful sexual
intercourse when consent is procured by false or fraudulent
representation with intent to create fear, abduction of a
person under 18 for the purpose of prostitution, incest,
sodomy, lewd or lascivious act, continuous sexual abuse of
a child, oral copulation, or forcible acts of sexual
penetration, or of assaulting another person with intent to
commit a crime with the intent to commit mayhem, rape,
sodomy, oral copulation, or who has been previously
convicted in another state of an offense which, if
committed or attempted in this state, would constitute an
offense enumerated in this paragraph;
f) A person who violated Penal Code Section 288 or 288.5
while kidnapping the child victim;
g) A person who is convicted of committing a violation of
Penal Code Section 288 or 288.5 against more than one
victim;
h) A person who, in violating Penal Code Section 288 or
288.5, has substantial sexual conduct with a victim who is
under 14 years of age; or,
i) A person who, in violating Penal Code Section 288 or
288.5, used obscene matter, or matter depicting sexual
conduct.
2)States that if a person is convicted of a violation of Penal
Code Section 288 or 288.5, and the factors listed in the
aforementioned subdivision (a) are not pled or proven,
probation may be granted only if the following terms and
conditions are met:
a) If the defendant is a member of the victim's household,
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the court finds that probation is in the best interest of
the child victim;
b) The court finds that rehabilitation of the defendant is
feasible and that the defendant is amenable to undergoing
treatment, and the defendant is placed in a recognized
treatment program designed to deal with child molestation
immediately after the grant of probation or the suspension
of execution or imposition of sentence;
c) If the defendant is a member of the victim's household,
probation shall not be granted unless the defendant is
removed from the household of the victim until the court
determines that the best interests of the victim would be
served by his or her return. While removed from the
household, the court shall prohibit contact by the
defendant with the victim, with the exception that the
court may permit supervised contact, upon the request of
the director of the court-ordered supervised treatment
program, and with the agreement of the victim and the
victim's parent or legal guardian, other than the
defendant; and,
d) The court finds that there is no threat of physical harm
to the victim if probation is granted.
3)Mandates notwithstanding any other provision of law, an inmate
who is released on parole shall not be returned to a location
within 35 miles of the actual residence of a victim of, or a
witness to, a violent felony or a felony in which the
defendant inflicts great bodily injury on any person other
than an accomplice that has been charged and, if the victim or
witness has requested additional distance in the placement of
the inmate on parole, and if the Board of Parole Hearings or
the Department of Corrections and Rehabilitation (CDCR) finds
that there is a need to protect the life, safety, or
well-being of a victim or witness.
4)Requires an inmate who is released on parole for a violation
of Penal Code Section 288 or 288.5 whom the CDCR determines
poses a high risk to the public shall not be placed or reside,
for the duration of his or her parole, within one-half mile of
any public or private school including any or all of
Kindergarten and Grades 1 to 12, inclusive.
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5)Requires any inmate convicted of a felony registerable sex
offense and who is committed to prison and released on parole
shall be monitored by global positioning system for the term
of his or her parole.
6)States that any person who commits lewd and lascivious acts
upon the body, or any part thereof, of a child 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 punishable by imprisonment in the state
prison for three, six or eight years.
7)Defines "continuous sexual abuse of a child" as three or more
acts of substantial sexual conduct with a child under the age
of 14 years, or three or more acts of lewd and lascivious
conduct with a child under the age of 14 years, over a period
of not less than three months in duration. Continuous sexual
abuse of a child is punishable by imprisonment in the state
prison for 6, 12, or 16 years.
8)Provides for the "one-strike" sex crime sentencing law that
provides sentences of 15-years or 25-years-to-life in certain
sex crimes if specified circumstances in aggravation are found
to be true.
9)Specifies that the qualifying sex crimes under the one-strike
sex law are punishable by imprisonment in the state prison for
life, and the defendant shall not be eligible for release on
parole for 15 years or 25 years, as specified. These crimes
are forcible rape, forcible spousal rape, rape by a foreign
object, forcible sodomy, forcible oral copulation, lewd and
lascivious acts with a child under the age of 14 accomplished
by force or duress, and lewd and lascivious acts with a child
under the age of 14 accomplished by other than force or duress
where the defendant is not eligible for probation. [Penal
Code Section 667.61(a) and (c).]
FISCAL EFFECT : None
COMMENTS : According to the author of this bill, "Child or
continuous sexual abuse of a child from being granted probation.
If the defendant is eligible for probation, then probation is
granted only if certain terms and conditions are met. These
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terms and conditions do not currently prohibit the defendant
from living near their child victim.
"If this same defendant is convicted and granted parole, current
law does allow for a residence restriction to be imposed. An
offender, who is found to be a high risk by CDCR, shall not be
placed or reside within one-half mile of any school.
"These children have suffered unimaginable harm, regardless of
whether the offender is convicted of a misdemeanor or a felony.
The children should not be further traumatized and forced to
live near their attacker. We should do everything possible to
ensure the safety of the victim and restore their sense of
security in the neighborhood."
Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744 FN:
0004866