Amended in Assembly January 6, 2014

Amended in Assembly September 10, 2013

Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1335

Introduced by Assembly Member Maienschein

February 22, 2013

An act to amend Sections 264, 264.1, 286, 288a, 288.5, 289, 667.61, and 2933.1 of the Penal Code, relating to sex offenses.

LEGISLATIVE COUNSEL’S DIGEST

AB 1335, as amended, Maienschein. Sex offenses: disabled victims.

(1)  begin delete Under existing end delete begin insert Existing end insert law begin insert requires that end insert a person who commits rape, or an act of sodomy, oral copulation, or sexual penetration, against a person incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, begin delete is punishable end delete begin insert be punished end insert by imprisonment in the state prison for 3, 6, or 8 begin delete years, under existing law, in the case of end delete begin insert years. Existing law also requires that a person who commits end insert sodomy, oral copulation, or sexual penetration, begin delete the crime is punishable end delete begin insert if, at the time of the offense, both the defendant and the victim are 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, be punished end insert by imprisonment in the state prison for 16 months, or 2 or 3 years, or by imprisonment in a county jail for a period of not more than one begin delete year, if 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. end delete begin insert year. end insert

This bill would instead make these crimes punishable by imprisonment in the state prison for 9, 11, or 13 years. By increasing the punishment for these crimes, this bill would impose a state-mandated local program.

(2) Under existing law, a defendant who, voluntarily acting in concert with another person, by force or by violence and against the will of the victim, commits an act of rape, spousal rape, or sexual penetration, either personally or by aiding and abetting the other person, is guilty of a crime punishable by imprisonment in the state prison for 5, 7, or 9 years.

This bill would make it a crime punishable by imprisonment in the state prison for 10, 12, or 14 years to commit an act of rape, spousal rape, or sexual penetration in concert with another person, either personally or by aiding and abetting the other person, against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent. By creating a new crime, this bill would impose a state-mandated local program.

(3) Under existing law, any person who resides in the same home with a minor child or has recurring access to the child, who over a period of time, not less than 3 months in duration, engages in 3 or more acts of substantial sexual conduct with a child under begin delete the age of end delete 14 years begin insert of age end insert , is guilty of the offense of continuous sexual abuse of a child, punishable by imprisonment in the state prison for a term of 6, 12, or 16 years.

This bill would make any person who resides in the same home with a disabled person or has recurring access to the disabled person, who over a period of time, not less than 3 months in duration, engages in 3 or more acts of substantial sexual conduct with the disabled person, guilty of the crime of continuous sexual abuse of a disabled person, and would make the crime punishable by imprisonment in the state prison for a term of 6, 12, or 16 years. By creating a new crime, this bill would impose a state-mandated local program.

(4) Existing law, as amended by Proposition 83, the Sexual Predator Punishment and Control Act (Jessica’s Law), approved by the voters at the November 7, 2006, statewide general election, provides that a defendant shall be punished by imprisonment in the state prison for 25 years to life if convicted of rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, and if, among other things, in the commission of that offense, any person kidnapped the victim, tortured the victim, or committed the offense during the commission of a burglary, as specified. Existing law further provides that a defendant shall be punished by imprisonment in the state prison for 15 years to life if convicted of rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, and if, among other things, in the commission of that offense any person, except as specified in the provisions above, kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense, or under other specified circumstances. Proposition 83 provides that the Legislature may amend the provisions of the act to expand the scope of their application or increase the punishment or penalties by a statute passed by a majority vote of each house.

This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions. The bill would also add continuous sexual abuse of a disabled person to the above provisions. The bill would apply the above provisions to rape, spousal rape, or sexual penetration in concert, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.

(5) Existing law provides that a defendant shall be punished by imprisonment in the state prison for 25 years to life if convicted of rape, spousal rape or sexual penetration in concert, sexual penetration, sodomy, or oral copulation if, among other things, in the commission of that offense any person, kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense, or under other specified circumstances, and the crime was committed against a minor 14 years of age or older.

This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions. Under the bill, the above provisions would also apply to rape, spousal rape, or sexual penetration in concert, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.

(6) Existing law prohibits a person who is convicted of a violent felony offense from accruing more than 15% of worktime credit, as defined, against his or her prison sentence.

This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent to the above provisions.

(7) 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.

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.  

Section 264 of the Penal Code is amended to
read:

264.  

(a) Except as provided in subdivision (c), rape, as defined
in Section 261 or 262, is punishable by imprisonment in the state
prison for three, six, or eight years.

(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.

(c) (1) Any person who commits rape in violation of paragraph
(2) of subdivision (a) of Section 261 upon a child who is under 14
years of age shall be punished by imprisonment in the state prison
for 9, 11, or 13 years.

(2) Any person who commits rape in violation of paragraph (2)
of subdivision (a) of Section 261 upon a minor who is 14 years of
age or older shall be punished by imprisonment in the state prison
for 7, 9, or 11 years.

(3) Any person who commits rape in violation of paragraph (1)
of subdivision (a) of Section 261 shall be punished by
imprisonment in the state prison for 9, 11, or 13 years.

(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

SEC. 2.  

Section 264.1 of the Penal Code is amended to read:

264.1.  

(a) 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,
seven, or nine years.

(b) (1) If the victim of an offense described in subdivision (a)
is a child who is under 14 years of age, the defendant shall be
punished by imprisonment in the state prison for 10, 12, or 14
years.

(2) If the victim of an offense described in subdivision (a) is a
minor who is 14 years of age or older, the defendant shall be
punished by imprisonment in the state prison for 7, 9, or 11 years.

(3) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(c) In any case in which the defendant, voluntarily acting in
concert with another person, 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 10, 12, or 14 years if the victim of the offense is
at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this was known or reasonably should have been known to the
person committing the act.

begin delete

SEC. 3.  

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) (A) 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, six, or eight years.

(B) Any person who commits an act of sodomy with another
person who is under 14 years of age 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 9, 11, or 13 years.

(C) Any person who commits an act of sodomy with another
person who is a minor 14 years of age or older 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 7, 9, or 11 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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,
six, or eight years.

(d) (1) 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, seven, or nine years.

(2) 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 upon a victim who is under 14
years of age, 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, shall be punished by
imprisonment in the state prison for 10, 12, or 14 years.

(3) 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 upon a victim who is a minor
14 years of age or older, 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, shall be punished
by imprisonment in the state prison for 7, 9, or 11 years.

(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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, 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.

(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 9, 11, or 13 years.
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 for 9, 11, or 13 years. 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,
six, or eight years.

(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. 4.  

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, six, or eight years.

(2) (A) 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, six, or eight years.

(B) Any person who commits an act of oral copulation upon a
person who is under 14 years of age, 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 8, 10, or 12 years.

(C) Any person who commits an act of oral copulation upon a
minor who is 14 years of age or older, 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 6, 8, or 10 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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, six, or eight years.

(d) (1) 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, seven, or nine years. 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.

(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is
under 14 years of age, 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, shall be punished
by imprisonment in the state prison for 10, 12, or 14 years.

(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is a
minor 14 years of age or older, 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, shall
be punished by imprisonment in the state prison for 8, 10, or 12
years.

(4) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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 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 9, 11,
or 13 years. 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 for 9, 11, or 13 years. 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, six, or eight years.

(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.

end delete

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 286 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

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 21 years
of age 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) (A) 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, six, or eight years.

(B) Any person who commits an act of sodomy with another
person who is under 14 years of age 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 9, 11, or 13 years.

(C) Any person who commits an act of sodomy with another
person who is a minor 14 years of age or older 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 7, 9, or 11 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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,
six, or eight years.

(d) (1) 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, seven, or nine years.

(2) 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 upon a victim who is under 14
years of age, 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, shall be punished by
imprisonment in the state prison for 10, 12, or 14 years.

(3) 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 upon a victim who is a minor
14 years of age or older, 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, shall be punished
by imprisonment in the state prison for 7, 9, or 11 years.

(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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, 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.

(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 begin delete three, six, or eight end delete begin insert 9, 11, or
13 end insert years. 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 begin delete prison, or in a county jail for not more than one year. end delete
begin insert prison for 9, 11, or 13 years. end insert 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,
six, or eight years.

(j) Any person who commits an act of sodomy, where the victim
submits under the belief that the person committing the act is
someone known to the victim other than the accused, 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.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 288a of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

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 21 years
of age 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, six, or eight years.

(2) (A) 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, six, or eight years.

(B) Any person who commits an act of oral copulation upon a
person who is under 14 years of age, 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 8, 10, or 12 years.

(C) Any person who commits an act of oral copulation upon a
minor who is 14 years of age or older, 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 6, 8, or 10 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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, six, or eight years.

(d) (1) 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 (A) 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 (B) 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 (C) 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, seven, or nine years. 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.

(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is
under 14 years of age, 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, shall be punished
by imprisonment in the state prison for 10, 12, or 14 years.

(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is a
minor 14 years of age or older, 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, shall
be punished by imprisonment in the state prison for 8, 10, or 12
years.

(4) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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 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 begin delete prison, for three,
six, or eight end delete begin insert prison for 9, 11, or 13 end insert years. 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 begin delete prison, or in a county jail for a period of not more than
one year. end delete begin insert prison for 9, 11, or 13 years. end insert 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, six, or eight years.

(j) Any person who commits an act of oral copulation, where
the victim submits under the belief that the person committing the
act is someone known to the victim other than the accused, 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. 5.  

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 begin delete the age of end delete 14 years begin insert of age end insert 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 begin delete the age of end delete 14 years begin insert of age end insert 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.

(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.

(d) (1) Any person who either resides in the same home with
a disabled person or has recurring access to a disabled person,
who, over a period of time, not less than three months in duration,
engages in three or more acts of substantial sexual conduct with
the disabled person, as defined in subdivision (b) of Section
1203.066, is guilty of the offense of continuous sexual abuse of a
disabled person and shall be punished by imprisonment in the state
prison for a term of 6, 12, or 16 years.

(2) As used in this subdivision, “disabled person” means a
person who, at the time of the offense, is incapable, because of a
mental disorder or developmental or physical disability, of giving
legal consent, and this was known or reasonably should have been
known to the person committing the act.

begin delete

SEC. 6.  

Section 289 of the Penal Code is amended to read:

289.  

(a) (1) (A) 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, six, or
eight years.

(B) Any person who commits an act of sexual penetration upon
a child who is under 14 years of age, 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 8, 10, or 12 years.

(C) Any person who commits an act of sexual penetration upon
a minor who is 14 years of age or older, 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 6, 8, or 10 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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, six, or eight years.

(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 9, 11, or 13 years. 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 for
9, 11, or 13. 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 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, six, or eight years.

(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, six, or eight years.

(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.

end delete

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 289 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

289.  

(a) (1) (A) 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, six, or
eight years.

(B) Any person who commits an act of sexual penetration upon
a child who is under 14 years of age, 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 8, 10, or 12 years.

(C) Any person who commits an act of sexual penetration upon
a minor who is 14 years of age or older, 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 6, 8, or 10 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(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, six, or eight years.

(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 begin delete three, six, or eight end delete begin insert 9, 11, or 13 end insert years.
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 begin delete prison, or
in a county jail for a period of not more than one year. end delete begin insert prison for
9, 11, or 13 years. end insert 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 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, six, or eight years.

(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 someone known to the
victim other than the accused, 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 a county jail for a period of not more than
one year.

(i) Except as provided in Section 288, any person over 21 years
of age 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, six, or eight years.

(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. 7.  

Section 667.61 of the Penal Code is amended to read:

667.61.  

(a) Except as provided in subdivision (j), (l), or (m),
any person who is convicted of an offense specified in subdivision
(c) under one or more of the circumstances specified in subdivision
(d) or under two or more of the circumstances specified in
subdivision (e) shall be punished by imprisonment in the state
prison for 25 years to life.

(b) Except as provided in subdivision (a), (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one of the circumstances specified in subdivision (e) shall
be punished by imprisonment in the state prison for 15 years to
life.

(c) This section shall apply to any of the following offenses:

(1) Rape, in violation of paragraph (1), (2), or (6) of subdivision
(a) of Section 261.

(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.

(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.

(4) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.

(5) Sexual penetration, in violation of subdivision (a), (b), or
(c) of Section 289.

(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), (g), or (h) of Section 286.

(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), (g), or (h) of Section 288a.

(8) Lewd or lascivious act, in violation of subdivision (a) of
Section 288.

(9) Continuous sexual abuse of a child or continuous sexual
abuse of a disabled person, in violation of Section 288.5.

(d) The following circumstances shall apply to the offenses
specified in subdivision (c):

(1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c).

(2) The defendant kidnapped the victim of the present offense
and the movement of the victim substantially increased the risk of
harm to the victim over and above that level of risk necessarily
inherent in the underlying offense in subdivision (c).

(3) The defendant inflicted aggravated mayhem or torture on
the victim or another person in the commission of the present
offense in violation of Section 205 or 206.

(4) The defendant committed the present offense during the
commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460, with intent to commit an offense
specified in subdivision (c).

(5) The defendant committed the present offense in violation
of Section 264.1, subdivision (d) of Section 286, or subdivision
(d) of Section 288a, and, in the commission of that offense, any
person committed any act described in paragraph (2), (3), or (4)
of this subdivision.

(6) The defendant personally inflicted great bodily injury on
the victim or another person in the commission of the present
offense in violation of Section 12022.53, 12022.7, or 12022.8.

(7) The defendant personally inflicted bodily harm on the victim
who was under 14 years of age.

(e) The following circumstances shall apply to the offenses
specified in subdivision (c):

(1) Except as provided in paragraph (2) of subdivision (d), the
defendant kidnapped the victim of the present offense in violation
of Section 207, 209, or 209.5.

(2) Except as provided in paragraph (4) of subdivision (d), the
defendant committed the present offense during the commission
of a burglary in violation of Section 459.

(3) The defendant personally used a dangerous or deadly weapon
or a firearm in the commission of the present offense in violation
of Section 12022, 12022.3, 12022.5, or 12022.53.

(4) The defendant has been convicted in the present case or
cases of committing an offense specified in subdivision (c) against
more than one victim.

(5) The defendant engaged in the tying or binding of the victim
or another person in the commission of the present offense.

(6) The defendant administered a controlled substance to the
victim in the commission of the present offense in violation of
Section 12022.75.

(7) The defendant committed the present offense in violation
of Section 264.1, subdivision (d) of Section 286, or subdivision
(d) of Section 288a, and, in the commission of that offense, any
person committed any act described in paragraph (1), (2), (3), (5),
or (6) of this subdivision or paragraph (6) of subdivision (d).

(f) If only the minimum number of circumstances specified in
subdivision (d) or (e) that are required for the punishment provided
in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
proved, that circumstance or those circumstances shall be used as
the basis for imposing the term provided in subdivision (a), (b),
(j), (l), or (m) whichever is greater, rather than being used to impose
the punishment authorized under any other provision of law, unless
another provision of law provides for a greater penalty or the
punishment under another provision of law can be imposed in
addition to the punishment provided by this section. However, if
any additional circumstance or circumstances specified in
subdivision (d) or (e) have been pled and proved, the minimum
number of circumstances shall be used as the basis for imposing
the term provided in subdivision (a), (j), or (l) and any other
additional circumstance or circumstances shall be used to impose
any punishment or enhancement authorized under any other
provision of law.

(g) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any of the circumstances specified in subdivision (d) or (e) for any
person who is subject to punishment under this section.

(h) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under
this section.

(i) For any offense specified in paragraphs (1) to (7), inclusive,
of subdivision (c), or in paragraphs (1) to (6), inclusive, of
subdivision (n), 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.

(j) (1) Any person who is convicted of an offense specified in
subdivision (c), with the exception of a violation of subdivision
(a) of Section 288, upon a victim who is a child under 14 years of
age under one or more of the circumstances specified in subdivision
(d) or under two or more of the circumstances specified in
subdivision (e), shall be punished by imprisonment in the state
prison for life without the possibility of parole. Where the person
was under 18 years of age at the time of the offense, the person
shall be punished by imprisonment in the state prison for 25 years
to life.

(2) Any person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of
age, shall be punished by imprisonment in the state prison for 25
years to life.

(k) As used in this section, “bodily harm” means any substantial
physical injury resulting from the use of force that is more than
the force necessary to commit an offense specified in subdivision
(c).

(l) Any person who is convicted of an offense specified in
subdivision (n) under one or more of the circumstances specified
in subdivision (d) or under two or more of the circumstances
specified in subdivision (e), upon a victim who is a minor 14 years
of age or older shall be punished by imprisonment in the state
prison for life without the possibility of parole. If the person who
was convicted was under 18 years of age at the time of the offense,
he or she shall be punished by imprisonment in the state prison
for 25 years to life.

(m) Any person who is convicted of an offense specified in
subdivision (n) under one of the circumstances specified in
subdivision (e) against a minor 14 years of age or older shall be
punished by imprisonment in the state prison for 25 years to life.

(n) Subdivisions (l) and (m) shall apply to any of the following
offenses:

(1) Rape, in violation of paragraph (1) or (2) of subdivision (a)
of Section 261.

(2) Spousal rape, in violation of paragraph (1) of subdivision
(a) of Section 262.

(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.

(4) Sexual penetration, in violation of paragraph (1) of
subdivision (a) or subdivision (b) or (c) of Section 289.

(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
Section 286, or in violation of subdivision (d), (g), or (h) of Section
286.

(6) Oral copulation, in violation of paragraph (2) of subdivision
(c) of Section 288a, or in violation of subdivision (d), (g), or (h)
of Section 288a.

(o) The penalties provided in this section shall apply only if the
existence of any circumstance specified in subdivision (d) or (e)
is alleged in the accusatory pleading pursuant to this section, and
is either admitted by the defendant in open court or found to be
true by the trier of fact.

SEC. 8.  

Section 2933.1 of the Penal Code is amended to read:

2933.1.  

(a) Notwithstanding any other law, any person who
is convicted of a felony offense listed in subdivision (c) of Section
667.5 or subdivision (e) of this section shall accrue no more than
15 percent of worktime credit, as defined in Section 2933.

(b) The 15-percent limitation provided in subdivision (a) shall
apply whether the defendant is sentenced under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2 or sentenced
under some other law. However, nothing in subdivision (a) shall
affect the requirement of any statute that the defendant serve a
specified period of time prior to minimum parole eligibility, nor
shall any offender otherwise statutorily ineligible for credit be
eligible for credit pursuant to this section.

(c) Notwithstanding Section 4019 or any other provision of law,
the maximum credit that may be earned against a period of
confinement in, or commitment to, a county jail, industrial farm,
or road camp, or a city jail, industrial farm, or road camp, following
arrest and prior to placement in the custody of the Director of
Corrections, shall not exceed 15 percent of the actual period of
confinement for any person specified in subdivision (a).

(d) This section shall only apply to offenses listed in subdivision
(a) that are committed on or after the date on which this section
becomes operative.

(e) This section applies to the following offenses:

(1) Rape in violation of paragraph (1) of subdivision (a) of
Section 261.

(2) Sodomy in violation of subdivision (g) or (h) of Section 286.

(3) Oral copulation in violation of subdivision (g) or (h) of
Section 288a.

(4) Sexual penetration in violation of subdivision (b) or (c) of
Section 289.

SEC. 9.  

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.