AB 1335, as amended, Maienschein. Sex offenses: disabled victims.
(1) 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 certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, 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 certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, 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. 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 provisionsbegin insert, if the victim is developmentally disabled, as definedend insert. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(2) Existing law provides that a defendant shall be punished by imprisonment in the state prison for 25 years to life if convicted of certain crimes, including rape, spousal rape or sexual penetration in concert, sexual penetration, sodomy, or oral copulation if certain circumstances were present, including, 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 provisionsbegin insert, if the victim is developmentally disabled, as definedend insert. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(3) Existing law requires that a person who commits certain enumerated crimes, including rape, sodomy, oral copulation, and sexual penetration, against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under 14 years of age, receive a one-year sentence enhancement and requires that any person having a prior conviction for any of the enumerated offenses receive a 2-year sentence enhancement.
This bill would add to the enumerated list of crimes rape, sodomy, oral copulation, and sexual penetration, 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.
(4) 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 667.61 of the Penal Code is amended to
2read:
(a) Except as provided in subdivision (j), (l), or (m),
4any person who is convicted of an offense specified in subdivision
5(c) under one or more of the circumstances specified in subdivision
6(d) or under two or more of the circumstances specified in
7subdivision (e) shall be punished by imprisonment in the state
8prison for 25 years to life.
9(b) Except as provided in subdivision (a), (j), (l), or (m), any
10person who is convicted of an offense specified in subdivision (c)
11under one of the circumstances specified in subdivision (e) shall
12be punished by imprisonment in the state prison for 15 years to
13life.
14(c) This section shall apply to any of the following offenses:
15(1) Rape, in violation of paragraphbegin delete (1), (2), orend deletebegin insert (2) orend insert (6) of
16subdivision (a) of Section 261.
P4 1(2) Spousal rape, in violation of paragraph (1) or (4) of
2subdivision (a) of Section 262.
3(3) Rape, spousal rape, or sexual penetration, in concert, in
4violation of Section 264.1.
5(4) Lewd or lascivious act, in violation of subdivision (b) of
6Section 288.
7(5) Sexual penetration, in
violation of subdivision
(a)begin delete or (b)end delete of
8Section 289.
9(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
10
(c), or subdivisionbegin delete (d) or (g)end deletebegin insert (d),end insert of Section 286.
11(7) Oral copulation, in violation of paragraph (2) or (3) of
12subdivision (c), or subdivisionbegin delete (d) or (g)end deletebegin insert (d),end insert of Section 288a.
13(8) Lewd or lascivious act, in violation of subdivision (a) of
14Section 288.
15(9) Continuous sexual abuse of a child
in violation of Section
16288.5.
17(10) Rape in violation of paragraph (1) of subdivision (a) of
18Section 261, if the victim was “developmentally disabled” as
19defined in subdivision (d) of Section 667.9, and this is alleged in
20the accusatory pleading and either admitted by the defendant in
21open court or found to be true by the trier of fact.
22(11) Sexual penetration, in violation of subdivision (b) of Section
23289, if the victim was “developmentally disabled” as defined in
24subdivision (d) of Section 667.9, and this is alleged in the
25accusatory pleading and either admitted by the defendant in open
26court or found to be true by the trier of fact.
27(12) Sodomy, in violation of subdivision (g) of Section 286, if
28the victim was “developmentally disabled” as defined in
29subdivision (d) of Section 667.9, and this is alleged in the
30accusatory pleading and either admitted by the defendant in open
31court or found to be true by the trier of fact.
32(13) Oral copulation, in violation of subdivision (g) of Section
33288a, if the victim was “developmentally disabled” as defined in
34subdivision (d) of Section 667.9, and this is alleged in the
35accusatory pleading and either admitted by the defendant in open
36court or found to be true by the trier of fact.
37(d) The following circumstances shall apply to the offenses
38specified in subdivision
(c):
39(1) The defendant has been previously convicted of an offense
40specified in subdivision (c), including an offense committed in
P5 1another jurisdiction that includes all of the elements of an offense
2specified in subdivision (c).
3(2) The defendant kidnapped the victim of the present offense
4and the movement of the victim substantially increased the risk of
5harm to the victim over and above that level of risk necessarily
6inherent in the underlying offense in subdivision (c).
7(3) The defendant inflicted aggravated mayhem or torture on
8the victim or another person in the commission of the present
9offense in violation of Section 205 or 206.
10(4) The defendant
committed the present offense during the
11commission of a burglary of the first degree, as defined in
12subdivision (a) of Section 460, with intent to commit an offense
13specified in subdivision (c).
14(5) The defendant committed the present offense in violation
15of Section 264.1, subdivision (d) of Section 286, or subdivision
16(d) of Section 288a, and, in the commission of that offense, any
17person committed any act described in paragraph (2), (3), or (4)
18of this subdivision.
19(6) The defendant personally inflicted great bodily injury on
20the victim or another person in the commission of the present
21offense in violation of Section 12022.53, 12022.7, or 12022.8.
22(7) The defendant personally inflicted bodily harm on the victim
23who
was under 14 years of age.
24(e) The following circumstances shall apply to the offenses
25
specified in subdivision (c):
26(1) Except as provided in paragraph (2) of subdivision (d), the
27defendant kidnapped the victim of the present offense in violation
28of Section 207, 209, or 209.5.
29(2) Except as provided in paragraph (4) of subdivision (d), the
30defendant committed the present offense during the commission
31of a burglary in violation of Section 459.
32(3) The defendant personally used a dangerous or deadly weapon
33or a firearm in the commission of the present offense in violation
34of Section 12022, 12022.3, 12022.5, or 12022.53.
35(4) The defendant has been convicted in the present case or
36cases of committing an offense specified in subdivision
(c) against
37more than one victim.
38(5) The defendant engaged in the tying or binding of the victim
39or another person in the commission of the present offense.
P6 1(6) The defendant administered a controlled substance to the
2victim in the commission of the present offense in violation of
3Section 12022.75.
4(7) The defendant committed the present offense in violation
5of Section 264.1, subdivision (d) of Section 286, or subdivision
6(d) of Section 288a, and, in the commission of that offense, any
7person committed any act described in paragraph (1), (2), (3), (5),
8or (6) of this subdivision or paragraph (6) of subdivision (d).
9(f) If only the minimum number of
circumstances specified in
10subdivision (d) or (e) that are required for the punishment provided
11in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
12proved, that circumstance or those circumstances shall be used as
13the basis for imposing the term provided in subdivision (a), (b),
14(j), (l), or (m) whichever is greater, rather than being used to impose
15the punishment authorized under any other provision of law, unless
16another provision of law provides for a greater penalty or the
17punishment under another provision of law can be imposed in
18addition to the punishment provided by this section. However, if
19any additional circumstance or circumstances specified in
20subdivision (d) or (e) have been pled and proved, the minimum
21number of circumstances shall be used as the basis for imposing
22the term provided in subdivision (a), (j), or (l) and any other
23additional circumstance or
circumstances shall be used to impose
24any punishment or enhancement authorized under any other
25provision of law.
26(g) Notwithstanding Section 1385 or any other provision of law,
27the court shall not strike any allegation, admission, or finding of
28any of the circumstances specified in subdivision (d) or (e) for any
29person who is subject to punishment under this section.
30(h) Notwithstanding any other provision of law, probation shall
31not be granted to, nor shall the execution or imposition of sentence
32be suspended for, any person who is subject to punishment under
33this section.
34(i) For any offense specified in paragraphs (1) to (7), inclusive,
35of subdivision (c), or in paragraphs (1) to (6), inclusive, of
36subdivision
(n), the court shall impose a consecutive sentence for
37each offense that results in a conviction under this section if the
38crimes involve separate victims or involve the same victim on
39separate occasions as defined in subdivision (d) of Section 667.6.
P7 1(j) (1) Any person who is convicted of an offense specified in
2subdivision (c), with the exception of a violation of subdivision
3(a) of Section 288, upon a victim who is a child under 14 years of
4age under one or more of the circumstances specified in subdivision
5(d) or under two or more of the circumstances specified in
6subdivision (e), shall be punished by imprisonment in the state
7prison for life without the possibility of parole. Where the person
8was under 18 years of age at the time of the offense, the person
9shall be punished by imprisonment in the state prison for 25 years
10to
life.
11(2) Any person who is convicted of an offense specified in
12subdivision (c) under one of the circumstances specified in
13subdivision (e), upon a victim who is a child under 14 years of
14age, shall be punished by imprisonment in the state prison for 25
15years to life.
16(k) As used in this section, “bodily harm” means any substantial
17physical injury resulting from the use of force that is more than
18the force necessary to commit an offense specified in subdivision
19(c).
20(l) Any person who is convicted of an offense specified in
21subdivision (n) under one or more of the circumstances specified
22in subdivision (d) or under two or more of the circumstances
23specified in subdivision (e), upon a victim who is a minor 14 years
24
of age or older shall be punished by imprisonment in the state
25prison for life without the possibility of parole. If the person who
26was convicted was under 18 years of age at the time of the offense,
27he or she shall be punished by imprisonment in the state prison
28for 25 years to life.
29(m) Any person who is convicted of an offense specified in
30subdivision (n) under one of the circumstances specified in
31subdivision (e) against a minor 14 years of age or older shall be
32punished by imprisonment in the state prison for 25 years to life.
33(n) Subdivisions (l) and (m) shall apply to any of the following
34offenses:
35(1) Rape, in violation of paragraphbegin delete (1) orend delete
(2) of subdivision (a)
36of Section 261.
37(2) Spousal rape, in violation of paragraph (1) of subdivision
38(a) of Section 262.
39(3) Rape, spousal rape, or sexual penetration, in concert, in
40violation of Section 264.1.
P8 1(4) Sexual penetration, in violation of paragraph (1) of
2subdivision (a)begin delete or subdivision (b)end delete of Section 289.
3(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
4Section 286, or in violation of subdivision (d)begin delete or (g)end delete of Section
5286.
6(6) Oral copulation, in violation of paragraph (2) of subdivision
7(c) of Section 288a, or in violation of subdivision (d)begin delete or (g)end delete of
8Section 288a.
9(7) Rape in violation of paragraph (1) of subdivision (a) of
10Section 261, if the victim was “developmentally disabled” as
11defined in subdivision (d) of Section 667.9, and this is alleged in
12the accusatory pleading and either admitted by the defendant in
13open court or found to be true by the trier of fact.
14(8) Sexual penetration, in violation of subdivision (b) of Section
15289, if the victim was “developmentally disabled” as defined in
16subdivision (d) of Section 667.9, and this is alleged in
the
17accusatory pleading and either admitted by the defendant in open
18court or found to be true by the trier of fact.
19(9) Sodomy, in violation of subdivision (g) of Section 286, if the
20victim was “developmentally disabled” as defined in subdivision
21(d) of Section 667.9, and this is alleged in the accusatory pleading
22and either admitted by the defendant in open court or found to be
23true by the trier of fact.
24(10) Oral copulation, in violation of subdivision (g) of Section
25288a, if the victim was “developmentally disabled” as defined in
26subdivision (d) of Section 667.9, and this is alleged in the
27accusatory pleading and either admitted by the defendant in open
28court or found to be true by the trier of fact.
29(o) The penalties provided in this section shall apply only if the
30existence
of any circumstance specified in subdivision (d) or (e)
31is alleged in the accusatory pleading pursuant to this section, and
32is either admitted by the defendant in open court or found to be
33true by the trier of fact.
Section 667.9 of the Penal Code is amended to read:
(a) Any person who commits one or more of the crimes
36specified in subdivision (c) against a person who is 65 years of
37age or older, or against a person who is blind, deaf,
38developmentally disabled, a paraplegic, or a quadriplegic, or
39against a person who is under the age of 14 years, and that
40disability or condition is known or reasonably should be known
P9 1to the person committing the crime, shall receive a one-year
2enhancement for each violation.
3(b) Any person who commits a violation of subdivision (a) and
4who has a prior conviction for any of the offenses specified in
5subdivision (c), shall receive a two-year enhancement for each
6violation
in addition to the sentence provided under Section 667.
7(c) Subdivisions (a) and (b) apply to the following crimes:
8(1) Mayhem, in violation of Section 203 or 205.
9(2) Kidnapping, in violation of Section 207, 209, or 209.5.
10(3) Robbery, in violation of Section 211.
11(4) Carjacking, in violation of Section 215.
12(5) Rape, in violation of paragraph (1), (2), or (6) of subdivision
13(a) of Section 261.
14(6) Spousal rape, in violation of paragraph (1) or (4) of
15subdivision (a) of Section 262.
16(7) Rape, spousal rape, or sexual penetration in concert, in
17violation of Section 264.1.
18(8) Sodomy, in violation of paragraph (2) or (3) of subdivision
19(c), or subdivision (d) or (g), of Section 286.
20(9) Oral copulation, in violation of paragraph (2) or (3) of
21subdivision (c), or subdivision (d) or (g), of Section 288a.
22(10) Sexual penetration, in violation of subdivision (a) or (b)
23of Section 289.
24(11) Burglary of the first degree, as defined in Section 460, in
25violation of Section 459.
26(d) As used in this section, “developmentally
disabled” means
27a severe, chronic disability of a person, which is all of the
28following:
29(1) Attributable to a mental or physical impairment or a
30combination of mental and physical impairments.
31(2) Likely to continue indefinitely.
32(3) Results in substantial functional limitation in three or more
33of the following areas of life activity:
34(A) Self-care.
35(B) Receptive and expressive language.
36(C) Learning.
37(D) Mobility.
38(E) Self-direction.
39(F) Capacity for independent living.
40(G) Economic self-sufficiency.
No reimbursement is required by this act pursuant to
2Section 6 of Article XIII B of the California Constitution because
3the only costs that may be incurred by a local agency or school
4district will be incurred because this act creates a new crime or
5infraction, eliminates a crime or infraction, or changes the penalty
6for a crime or infraction, within the meaning of Section 17556 of
7the Government Code, or changes the definition of a crime within
8the meaning of Section 6 of Article XIII B of the California
9Constitution.
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