SB 922, as amended, Knight. Sex offenses: disabled victims.
(1) Under existing law, 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 whereend deletebegin insert ifend insert that fact is known or reasonably should be known by the person committing the act,begin delete shall be punishedend deletebegin insert is subject to punishmentend insert by imprisonment in the state prison for 3, 6, or 8 years.begin insert
Under existing law, a person who commits rape, an act of sodomy, oral copulation, or sexual penetration against a person who is under 14 years of age by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury is subject to punishment by imprisonment in the state prison for 9, 11, or 13 years in the case of rape or an act of sodomy, and 8, 10, or 12 years in the case of oral copulation or sexual penetration. end insert
This bill wouldbegin delete instead make these crimes punishable by imprisonment in the state prison for 9, 11, or 13 yearsend deletebegin insert make these crimes, if committed against a person who has a mental disorder or developmental or physical disability, and the person committing the act knows or reasonably should know that the victim has the disorder or
disability, by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury, punishable by imprisonment in the state prison for 9, 11, or 13 years in the case of rape or an act of sodomy, and 8, 10, or 12 years in the case of oral copulation or sexual penetration. By creating new crimes, this bill would impose a state-mandated local programend insert.
(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.begin insert If the victim of the offense is a child under 14 years of age, the offense is punishable in the state prison for 10, 12, or 14 years.end insert
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,begin delete orend delete sexual penetrationbegin insert, sodomy, or oral copulationend insert in concert with another person, by force or by violence and against the will of the victim, either personally or by aiding and abetting the other person, against a person whobegin delete is incapable, because ofend deletebegin insert hasend insert a mental disorder or developmental or physical disabilitybegin delete, of giving legal consentend deletebegin insert,
and the person committing the acts knows or reasonably should know that the victim has the disorder or disabilityend insert. 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 the age of 14 years, 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.
end deleteThis 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 that 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.
end delete(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.
end deleteThis 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.
end delete(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.
end deleteThis 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. The bill would also add the crime of continuous sexual abuse of a disabled person to the above provisions.
end delete(6) 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.
end deleteThis bill would provide that no reimbursement is required by this act for a specified reason.
end deleteThe
end deletebegin insert(3)end insertbegin insert end insertbegin insertTheend insert 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 264 of the Penal Code is amended to
2read:
(a) Except as provided in subdivision (c), rape, as defined
4in Section 261 or 262, is punishable by imprisonment in the state
5prison for three, six, or eight years.
6(b) In addition to any punishment imposed under this section
7the judge may assess a fine not to exceed seventy dollars ($70)
8against any person who violates Section 261 or 262 with the
9proceeds of this fine to be used in accordance with Section 1463.23.
10The court shall, however, take into consideration the defendant’s
11ability to pay, and no defendant shall be denied probation because
12of his or her inability to pay the fine authorized under this
13subdivision.
14(c) (1) Any person who commits rape in violation of paragraph
15(2) of subdivision (a) of Section 261 upon a child who is under 14
16years of age shall be punished by imprisonment in the state prison
17for 9, 11, or 13 years.
P5 1(2) Any person who commits rape in violation of paragraph (2)
2of subdivision (a) of Section 261 upon a minor who is 14 years of
3age or older shall be punished by imprisonment in the state prison
4for 7, 9, or 11 years.
5(3) Any person who commits rape in violation of paragraph (1)
6of subdivision (a) of Section 261 shall be punished by
7imprisonment in the state prison for 9, 11, or 13 years.
8(3) Any person who commits rape in violation of paragraph (2)
9of subdivision (a) of Section 261 upon a person who has a mental
10disorder or developmental or physical disability, and this is known
11or reasonably should be known to the person committing the act,
12shall be punished by imprisonment in the state prison for 9, 11,
13or 13 years.
14(4) This subdivision does not preclude prosecution under Section
15269, Section 288.7, or any other provision of law.
Section 264.1 of the Penal Code is amended to read:
(a) The provisions of Section 264 notwithstanding, in
18any case in which the defendant, voluntarily acting in concert with
19another person, by force or violence and against the will of the
20victim, committed an act described in Section 261, 262, or 289,
21either personally or by aiding and abetting the other person, that
22fact shall be charged in the indictment or information and if found
23to be true by the jury, upon a jury trial, or if found to be true by
24the court, upon a court trial, or if admitted by the defendant, the
25defendant shall suffer confinement in the state prison for five,
26seven, or nine years.
27(b) (1) If the victim of an offense described in subdivision (a)
28is
a child who is under 14 years of age, the defendant shall be
29punished by imprisonment in the state prison for 10, 12, or 14
30years.
31(2) If the victim of an offense described in subdivision (a) is a
32minor who is 14 years of age or older, the defendant shall be
33punished by imprisonment in the state prison for 7, 9, or 11 years.
34(3) If the victim of an offense described in subdivision (a)begin delete is a begin insert has a mental disorder
35person incapable, because of mental disorder or developmental or
36physical disability, of giving legal consentend delete
37or developmental or physical disabilityend insert, and this is known or
38reasonably should be known to
the person committing the act, the
39defendant shall be punished by imprisonment in the state prison
40for 10, 12, or 14 years.
P6 1(4) This subdivision does not preclude prosecution under Section
2269, Section 288.7, or any other provision of law.
Section 286 of the Penal Code is amended to read:
(a) Sodomy is sexual conduct consisting of contact
5between the penis of one person and the anus of another person.
6Any sexual penetration, however slight, is sufficient to complete
7the crime of sodomy.
8(b) (1) Except as provided in Section 288, any person who
9participates in an act of sodomy with another person who is under
1018 years of age shall be punished by imprisonment in the state
11prison, or in a county jail for not more than one year.
12(2) Except as provided in Section 288, any person over 21 years
13of age who participates in an act of sodomy with another person
14who is under 16 years of age shall be
guilty of a felony.
15(c) (1) Any person who participates in an act of sodomy with
16another person who is under 14 years of age and more than 10
17years younger than he or she shall be punished by imprisonment
18in the state prison for three, six, or eight years.
19(2) (A) Any person who commits an act of sodomy when the
20act is accomplished against the victim’s will by means of force,
21violence, duress, menace, or fear of immediate and unlawful bodily
22injury on the victim or another person shall be punished by
23imprisonment in the state prison for three, six, or eight years.
24(B) Any person who commits an act of sodomy with another
25person who is under 14 years of age when the act is accomplished
26against
the victim’s will by means of force, violence, duress,
27menace, or fear of immediate and unlawful bodily injury on the
28victim or another person shall be punished by imprisonment in the
29state prison for 9, 11, or 13 years.
30(C) Any person who commits an act of sodomy with another
31person who is a minor 14 years of age or older when the act is
32accomplished against the victim’s will by means of force, violence,
33duress, menace, or fear of immediate and unlawful bodily injury
34on the victim or another person shall be punished by imprisonment
35in the state prison for 7, 9, or 11 years.
36(D) This paragraph does not preclude prosecution under Section
37269, Section 288.7, or any other provision of law.
38(3) Any person who commits an act of
sodomy where the act
39is accomplished against the victim’s will by threatening to retaliate
40in the future against the victim or any other person, and there is a
P7 1reasonable possibility that the perpetrator will execute the threat,
2shall be punished by imprisonment in the state prison for three,
3six, or eight years.
4(d) (1) Any person who, while voluntarily acting in concert
5with another person, either personally or aiding and abetting that
6other person, commits an act of sodomy when the act is
7accomplished against the victim’s will by means of force or fear
8of immediate and unlawful bodily injury on the victim or another
9person or where the act is accomplished against the victim’s will
10by threatening to retaliate in the future against the victim or any
11other person, and there is a reasonable possibility that the
12perpetrator
will execute the threat, shall be punished by
13imprisonment in the state prison for five, seven, or nine years.
14(2) Any person who, while voluntarily acting in concert with
15another person, either personally or aiding and abetting that other
16person, commits an act of sodomy upon a victim who is under 14
17years of age, when the act is accomplished against the victim’s
18will by means of force or fear of immediate and unlawful bodily
19injury on the victim or another person, shall be punished by
20imprisonment in the state prison for 10, 12, or 14 years.
21(3) Any person who, while voluntarily acting in concert with
22another person, either personally or aiding and abetting that other
23person, commits an act of sodomy upon a victim who is a minor
2414 years of age or older, when the act is accomplished
against the
25victim’s will by means of force or fear of immediate and unlawful
26bodily injury on the victim or another person, shall be punished
27by imprisonment in the state prison for 7, 9, or 11 years.
28(4) Any person who, while voluntarily acting in concert with
29another person, either personally or aiding and abetting that other
30person, commits an act of sodomy upon a victim who has a mental
31disorder or developmental or physical disability, and this is known
32or reasonably should be known to the person committing the act,
33when the act is accomplished against the victim’s will by means
34of force or fear of immediate and unlawful bodily injury on the
35victim or another person, shall be punished by imprisonment in
36the state prison for 10, 12, or 14 years.
10 37(4)
end delete
38begin insert(5)end insert This subdivision does not preclude prosecution under Section
39269, Section 288.7, or any other provision of law.
P8 1(e) Any person who participates in an act of sodomy with any
2person of any age while confined in any state prison, as defined
3in Section 4504, or in any local detention facility, as defined in
4Section 6031.4, shall be punished by imprisonment in the state
5prison, or in a county jail for not more than one year.
6(f) Any person who commits an act of sodomy, and the victim
7is at the time unconscious of the nature of the act and this is known
8to the person committing the act, shall be punished by
9imprisonment in the state
prison for three, six, or eight years. As
10used in this subdivision, “unconscious of the nature of the act”
11means incapable of resisting because the victim meets one of the
12following conditions:
13(1) Was unconscious or asleep.
14(2) Was not aware, knowing, perceiving, or cognizant that the
15act occurred.
16(3) Was not aware, knowing, perceiving, or cognizant of the
17essential characteristics of the act due to the perpetrator’s fraud in
18fact.
19(4) Was not aware, knowing, perceiving, or cognizant of the
20essential characteristics of the act due to the perpetrator’s fraudulent
21representation that the sexual penetration served a professional
22purpose when it served
no professional purpose.
23(g) begin insert(1)end insertbegin insert end insertExcept as provided in subdivision (h), a person who
24commits an act of sodomy, and the victim is at the time incapable,
25because of a mental disorder or developmental or physical
26disability, of giving legal consent, and this is known or reasonably
27should be known to the person committing the act, shall be
28punished by imprisonment in the state prison forbegin delete 9, 11, or 13end deletebegin insert three,
29six, or eightend insert years. Notwithstanding the existence of a
30conservatorship pursuant to the Lanterman-Petris-Short Act (Part
311 (commencing with
Section 5000) of Division 5 of the Welfare
32and Institutions Code), the prosecuting attorney shall prove, as an
33element of the crime, that a mental disorder or developmental or
34physical disability rendered the alleged victim incapable of giving
35consent.
36(2) Any person who commits an act of sodomy with another
37person who has a mental disorder or developmental or physical
38disability, and this is known or reasonably should have been known
39to the person committing the act, when the act is accomplished
40against the victim’s will by means of force, violence, duress,
P9 1menace, or fear of immediate and unlawful bodily injury on the
2victim or another person shall be punished by imprisonment in the
3state prison for 9, 11, or 13 years.
4(h) Any person who commits
an act of sodomy, and the victim
5is at the time incapable, because of a mental disorder or
6developmental or physical disability, of giving legal consent, and
7this is known or reasonably should be known to the person
8committing the act, and both the defendant and the victim are at
9the time confined in a state hospital for the care and treatment of
10the mentally disordered or in any other public or private facility
11for the care and treatment of the mentally disordered approved by
12a county mental health director, shall be punished by imprisonment
13in the state prison, or in a county jail for not more than one year.
14Notwithstanding the existence of a conservatorship pursuant to
15the Lanterman-Petris-Short Act (Part 1 (commencing with Section
165000) of Division 5 of the Welfare and Institutions Code), the
17prosecuting attorney shall prove, as an element of the crime, that
18a mental disorder or developmental or
physical disability rendered
19the alleged victim incapable of giving legal consent.
20(i) Any person who commits an act of sodomy, where the victim
21is prevented from resisting by an intoxicating or anesthetic
22substance, or any controlled substance, and this condition was
23known, or reasonably should have been known by the accused,
24shall be punished by imprisonment in the state prison for three,
25six, or eight years.
26(j) Any person who commits an act of sodomy, where the victim
27submits under the belief that the person committing the act is
28someone known to the victim other than the accused, and this
29belief is induced by any artifice, pretense, or concealment practiced
30by the accused, with intent to induce the belief, shall be punished
31by imprisonment in the state prison for three,
six, or eight years.
32(k) Any person who commits an act of sodomy, where the act
33is accomplished against the victim’s will by threatening to use the
34authority of a public official to incarcerate, arrest, or deport the
35victim or another, and the victim has a reasonable belief that the
36perpetrator is a public official, shall be punished by imprisonment
37in the state prison for three, six, or eight years.
38As used in this subdivision, “public official” means a person
39employed by a governmental agency who has the authority, as part
P10 1of that position, to incarcerate, arrest, or deport another. The
2
perpetrator does not actually have to be a public official.
3(l) As used in subdivisions (c) and (d), “threatening to retaliate”
4means a threat to kidnap or falsely imprison, or inflict extreme
5pain, serious bodily injury, or death.
6(m) In addition to any punishment imposed under this section,
7the judge may assess a fine not to exceed seventy dollars ($70)
8against any person who violates this section, with the proceeds of
9this fine to be used in accordance with Section 1463.23. The court,
10however, shall take into consideration the defendant’s ability to
11pay, and no defendant shall be denied probation because of his or
12her inability to pay the fine permitted under this subdivision.
Section 288a of the Penal Code is amended to read:
(a) Oral copulation is the act of copulating the mouth
15of one person with the sexual organ or anus of another person.
16(b) (1) Except as provided in Section 288, any person who
17participates in an act of oral copulation with another person who
18is under 18 years of age shall be punished by imprisonment in the
19state prison, or in a county jail for a period of not more than one
20year.
21(2) Except as provided in Section 288, any person over 21 years
22of age who participates in an act of oral copulation with another
23person who is under 16 years of age is guilty of a felony.
24(c) (1) Any person who participates in an act of oral copulation
25with another person who is under 14 years of age and more than
2610 years younger than he or she shall be punished by imprisonment
27in the state prison for three, six, or eight years.
28(2) (A) Any person who commits an act of oral copulation when
29the act is accomplished against the victim’s will by means of force,
30violence, duress, menace, or fear of immediate and unlawful bodily
31injury on the victim or another person shall be punished by
32imprisonment in the state prison for three, six, or eight years.
33(B) Any person who commits an act of oral copulation upon a
34person who is under 14 years of age, when the act is accomplished
35against the victim’s will by means of force,
violence, duress,
36menace, or fear of immediate and unlawful bodily injury on the
37victim or another person, shall be punished by imprisonment in
38the state prison for 8, 10, or 12 years.
39(C) Any person who commits an act of oral copulation upon a
40minor who is 14 years of age or older, when the act is accomplished
P11 1against the victim’s will by means of force, violence, duress,
2menace, or fear of immediate and unlawful bodily injury on the
3victim or another person, shall be punished by imprisonment in
4the state prison for 6, 8, or 10 years.
5(D) This paragraph does not preclude prosecution under Section
6269, Section 288.7, or any other provision of law.
7(3) Any person who commits an act of oral copulation where
8the act is
accomplished against the victim’s will by threatening to
9retaliate in the future against the victim or any other person, and
10there is a reasonable possibility that the perpetrator will execute
11the threat, shall be punished by imprisonment in the state prison
12for three, six, or eight years.
13(d) (1) Any person who, while voluntarily acting in concert
14with another person, either personally or by aiding and abetting
15that other person, commits an act of oral copulation (A) when the
16act is accomplished against the victim’s will by means of force or
17fear of immediate and unlawful bodily injury on the victim or
18another person, or (B) where the act is accomplished against the
19victim’s will by threatening to retaliate in the future against the
20victim or any other person, and there is a reasonable possibility
21that the perpetrator
will execute the threat, or (C) where the victim
22is at the time incapable, because of a mental disorder or
23developmental or physical disability, of giving legal consent, and
24this is known or reasonably should be known to the person
25committing the act, shall be punished by imprisonment in the state
26prison for five, seven, or nine years. Notwithstanding the
27
appointment of a conservator with respect to the victim pursuant
28to the provisions of the Lanterman-Petris-Short Act (Part 1
29(commencing with Section 5000) of Division 5 of the Welfare and
30Institutions Code), the prosecuting attorney shall prove, as an
31element of the crime described under paragraph (3), that a mental
32disorder or developmental or physical disability rendered the
33alleged victim incapable of giving legal consent.
34(2) Any person who, while voluntarily acting in concert with
35another person, either personally or aiding and abetting that other
36person, commits an act of oral copulation upon a victim who is
37under 14 years of age, when the act is accomplished against the
38victim’s will by means of force or fear of immediate and unlawful
39bodily injury on the victim or another person, shall be punished
40by
imprisonment in the state prison for 10, 12, or 14 years.
P12 1(3) Any person who, while voluntarily acting in concert with
2another person, either personally or aiding and abetting that other
3person, commits an act of oral copulation upon a victim who is a
4minor 14 years of age or older, when the act is accomplished
5against the victim’s will by means of force or fear of immediate
6and unlawful bodily injury on the victim or another person, shall
7be punished by imprisonment in the state prison for 8, 10, or 12
8years.
9(4) Any person who, while voluntarily acting in concert with
10another person, either personally or aiding and abetting that other
11person, commits an act of oral copulation upon a victim who has
12a mental disorder or developmental or
physical disability, and this
13is known or reasonably should be known to the person committing
14the act, when the act is accomplished against the victim’s will by
15means of force or fear of immediate and unlawful bodily injury on
16the victim or another person, shall be punished by imprisonment
17in the state prison for 10, 12, or 14 years.
11 18(4)
end delete
19begin insert(5)end insert This paragraph does not preclude prosecution under Section
20269, Section 288.7, or any other provision of law.
21(e) Any person who participates in an act of oral copulation
22while confined in any state prison, as
defined in Section 4504 or
23in any local detention facility as defined in Section 6031.4, shall
24be punished by imprisonment in the state prison, or in a county
25jail for a period of not more than one year.
26(f) Any person who commits an act of oral copulation, and the
27victim is at the time unconscious of the nature of the act and this
28is known to the person committing the act, shall be punished by
29imprisonment in the state prison for a period of three, six, or eight
30years. As used in this subdivision, “unconscious of the nature of
31the act” means incapable of resisting because the victim meets one
32of the following conditions:
33(1) Was unconscious or asleep.
34(2) Was not aware, knowing, perceiving, or cognizant that the
35act
occurred.
36(3) Was not aware, knowing, perceiving, or cognizant of the
37essential characteristics of the act due to the perpetrator’s fraud in
38fact.
39(4) Was not aware, knowing, perceiving, or cognizant of the
40essential characteristics of the act due to the perpetrator’s fraudulent
P13 1representation that the oral copulation served a professional purpose
2when it served no professional purpose.
3(g) begin insert(1)end insertbegin insert end insertExcept as provided in subdivision (h), any person who
4commits an act of oral copulation, and the victim is at the time
5incapable, because of a mental disorder or developmental or
6physical disability, of giving
legal consent, and this is known or
7reasonably should be known to the person committing the act,
8shall be punished by imprisonment in the state prison, forbegin delete 9, 11, begin insert three, six, or eightend insert years. Notwithstanding the existence of
9or 13end delete
10a conservatorship pursuant to the provisions of the
11Lanterman-Petris-Short Act (Part 1 (commencing with Section
125000) of Division 5 of the Welfare and Institutions Code), the
13prosecuting attorney shall prove, as an element of the crime, that
14a mental disorder or developmental or physical disability rendered
15the alleged victim incapable of giving consent.
16(2) Any
person who commits an act of oral copulation upon a
17person who has a mental disorder or developmental or physical
18disability, and this is known or reasonably should have been known
19to the person committing the act, when the act is accomplished
20against the victim’s will by means of force, violence, duress,
21menace, or fear of immediate and unlawful bodily injury on the
22victim or another person, shall be punished by imprisonment in
23the state prison for 8, 10, or 12 years.
24(h) Any person who commits an act of oral copulation, and the
25victim is at the time incapable, because of a mental disorder or
26developmental or physical disability, of giving legal consent, and
27this is known or reasonably should be known to the person
28committing the act, and both the defendant and the victim are at
29the time confined in a state hospital for the care and treatment of
30the mentally
disordered or in any other public or private facility
31for the care and treatment of the mentally disordered approved by
32a county mental health director, shall be punished by imprisonment
33in the state prison, or in a county jail for a period of not more than
34one year. Notwithstanding the existence of a conservatorship
35pursuant to the provisions of the Lanterman-Petris-Short Act (Part
361 (commencing with Section 5000) of Division 5 of the Welfare
37and Institutions Code), the prosecuting attorney shall prove, as an
38element of the crime, that a mental disorder or developmental or
39physical disability rendered the alleged victim incapable of giving
40legal consent.
P14 1(i) Any person who commits an act of oral copulation, where
2the victim is prevented from resisting by any intoxicating or
3anesthetic substance, or any controlled substance, and this
condition
4was known, or reasonably should have been known by the accused,
5shall be punished by imprisonment in the state prison for a period
6of three, six, or eight years.
7(j) Any person who commits an act of oral copulation, where
8the victim submits under the belief that the person committing the
9act is someone known to the victim other than the accused, and
10this belief is induced by any artifice, pretense, or concealment
11practiced by the accused, with intent to induce the belief, shall be
12punished by imprisonment in the state prison for a period of three,
13six, or eight years.
14(k) Any person who commits an act of oral copulation, where
15the act is accomplished against the victim’s will by threatening to
16use the authority of a public official to incarcerate, arrest, or deport
17the
victim or another, and the victim has a reasonable belief that
18the perpetrator is a public official, shall be punished by
19imprisonment in the state prison for a period of three, six, or eight
20years.
21As used in this subdivision, “public official” means a person
22employed by a governmental agency who has the authority, as part
23of that position, to incarcerate, arrest, or deport another. The
24perpetrator does not actually have to be a public official.
25(l) As used in subdivisions (c) and (d), “threatening to retaliate”
26means a threat to kidnap or falsely imprison, or to inflict extreme
27pain, serious bodily injury, or death.
28(m) In addition to any punishment imposed under this section,
29the judge may assess a fine not to exceed seventy dollars ($70)
30against
any person who violates this section, with the proceeds of
31this fine to be used in accordance with Section 1463.23. The court
32shall, however, take into consideration the defendant’s ability to
33pay, and no defendant shall be denied probation because of his or
34her inability to pay the fine permitted under this subdivision.
Section 288.5 of the Penal Code is amended to read:
(a) Any person who either resides in the same home
37with the minor child or has recurring access to the child, who over
38a period of time, not less than three months in duration, engages
39in three or more acts of substantial sexual conduct with a child
40under the age of 14 years at the time of the commission of the
P15 1offense, as defined in subdivision (b) of Section 1203.066, or three
2or more acts of lewd or lascivious conduct, as defined in Section
3288, with a child under the age of 14 years at the time of the
4commission of the offense is guilty of the offense of continuous
5sexual abuse of a child and shall be punished by imprisonment in
6the state prison for a term of 6, 12, or 16 years.
7(b) To convict under this section the
trier of fact, if a jury, need
8unanimously agree only that the requisite number of acts occurred
9not on which acts constitute the requisite number.
10(c) No other act of substantial sexual conduct, as defined in
11subdivision (b) of Section 1203.066, with a child under 14 years
12of age at the time of the commission of the offenses, or lewd and
13lascivious acts, as defined in Section 288, involving the same
14victim may be charged in the same proceeding with a charge under
15this section unless the other charged offense occurred outside the
16time period charged under this section or the other offense is
17charged in the alternative. A defendant may be charged with only
18one count under this section unless more than one victim is
19involved in which case a separate count may be charged for each
20victim.
21(d) (1) Any person who either resides in the same home with
22a disabled person or has recurring access to a disabled person,
23who, over a period of time, not less than three months in duration,
24engages in three or more acts of substantial sexual conduct with
25the disabled person, as defined in subdivision (b) of Section
261203.066, is guilty of the offense of continuous sexual abuse of a
27disabled person and shall be punished by imprisonment in the state
28prison for a term of 6, 12, or 16 years.
29(2) As used in this subdivision, “disabled person” means a
30person who, at the time of the offense, is incapable, because of a
31mental disorder or developmental or physical disability, of giving
32legal consent, and this was known or reasonably should have been
33known to the person committing the act.
Section 289 of the Penal Code is amended to read:
(a) (1) (A) Any person who commits an act of sexual
37penetration when the act is accomplished against the victim’s will
38by means of force, violence, duress, menace, or fear of immediate
39and unlawful bodily injury on the victim or another person shall
P16 1be punished by imprisonment in the state prison for three, six, or
2eight years.
3(B) Any person who commits an act of sexual penetration upon
4a child who is under 14 years of age, when the act is accomplished
5against the victim’s will by means of force, violence, duress,
6menace, or fear of immediate and unlawful bodily injury on the
7victim or another person, shall be punished by imprisonment in
8the
state prison for 8, 10, or 12 years.
9(C) Any person who commits an act of sexual penetration upon
10a minor who is 14 years of age or older, when the act is
11accomplished against the victim’s will by means of force, violence,
12duress, menace, or fear of immediate and unlawful bodily injury
13on the victim or another person, shall be punished by imprisonment
14in the state prison for 6, 8, or 10 years.
15(D) Any person who commits an act of sexual penetration upon
16a person who has a mental disorder or developmental or physical
17disability, and this is known or reasonably should be known to the
18person committing the act, when the act is accomplished against
19the victim’s will by means of force, violence, duress, menace, or
20fear of immediate
and unlawful bodily injury on the victim or
21another person, shall be punished by imprisonment in the state
22prison for 8, 10, or 12 years.
37 23(D)
end delete
24begin insert(E)end insert This paragraph does not preclude prosecution under Section
25269, Section 288.7, or any other provision of law.
26(2) Any person who commits an act of sexual penetration when
27the act is accomplished against the victim’s will by threatening to
28retaliate in the future against the victim or any other person, and
29there is a reasonable possibility that the perpetrator will execute
30the
threat, shall be punished by imprisonment in the state prison
31for three, six, or eight years.
32(b) Except as provided in subdivision (c), any person who
33commits an act of sexual penetration, and the victim is at the time
34incapable, because of a mental disorder or developmental or
35physical disability, of giving legal consent, and this is known or
36reasonably should be known to the person committing the act or
37causing the act to be committed, shall be punished by imprisonment
38in the state prison forbegin delete 9, 11, or 13end deletebegin insert three, six, or eightend insert years.
39Notwithstanding the appointment of a conservator with respect to
40the victim pursuant to the provisions of the Lanterman-Petris-Short
P17 1Act (Part
1 (commencing with Section 5000) of Division 5 of the
2Welfare and Institutions Code), the prosecuting attorney shall
3prove, as an element of the crime, that a mental disorder or
4developmental or physical disability rendered the alleged victim
5incapable of giving legal consent.
6(c) Any person who commits an act of sexual penetration, and
7the victim is at the time incapable, because of a mental disorder
8or developmental or physical disability, of giving legal consent,
9and this is known or reasonably should be known to the person
10committing the act or causing the act to be committed and both
11the defendant and the victim are at the time confined in a state
12hospital for the care and treatment of the mentally disordered or
13in any other public or private facility for the care and treatment of
14the mentally disordered approved by a county mental
health
15director, shall be punished by imprisonment in the state prison, or
16in a county jail for a period of not more than one year.
17Notwithstanding the existence of a conservatorship pursuant to
18the provisions of the Lanterman-Petris-Short Act (Part 1
19(commencing with Section 5000) of Division 5 of the Welfare and
20Institutions Code), the prosecuting attorney shall prove, as an
21element of the crime, that a mental disorder or developmental or
22physical disability rendered the alleged victim incapable of giving
23legal consent.
24(d) Any person who commits an act of sexual penetration, and
25the victim is at the time unconscious of the nature of the act and
26this is known to the person committing the act or causing the act
27to be committed, shall be punished by imprisonment in the state
28prison for three, six, or eight years. As used in
this subdivision,
29“unconscious of the nature of the act” means incapable of resisting
30because the victim meets one of the following conditions:
31(1) Was unconscious or asleep.
32(2) Was not aware, knowing, perceiving, or cognizant that the
33act occurred.
34(3) Was not aware, knowing, perceiving, or cognizant of the
35essential characteristics of the act due to the perpetrator’s fraud in
36fact.
37(4) Was not aware, knowing, perceiving, or cognizant of the
38essential characteristics of the act due to the perpetrator’s fraudulent
39representation that the sexual penetration served a professional
40purpose when it served no professional purpose.
P18 1(e) Any person who commits an act of sexual penetration when
2the victim is prevented from resisting by any intoxicating or
3anesthetic substance, or any controlled substance, and this condition
4was known, or reasonably should have been known by the accused,
5shall be punished by imprisonment in the state prison for a period
6of three, six, or eight years.
7(f) Any person who commits an act of sexual penetration when
8the victim submits under the belief that the person committing the
9act or causing the act to be committed is someone known to the
10victim other than the accused, and this belief is induced by any
11artifice, pretense, or concealment practiced by the accused, with
12intent to induce the belief, shall be punished by imprisonment in
13the state prison for a period of three, six, or
eight years.
14(g) Any person who commits an act of sexual penetration when
15the act is accomplished against the victim’s will by threatening to
16use the authority of a public official to incarcerate, arrest, or deport
17the victim or another, and the victim has a reasonable belief that
18the perpetrator is a public official, shall be punished by
19imprisonment in the state prison for a period of three, six, or eight
20years.
21As used in this subdivision, “public official” means a person
22employed by a governmental agency who has the authority, as part
23of that position, to incarcerate, arrest, or deport another. The
24perpetrator does not actually have to be a public official.
25(h) Except as provided in Section 288, any person who
26participates in an act
of sexual penetration with another person
27who is under 18 years of age shall be punished by imprisonment
28in the state prison or in a county jail for a period of not more than
29one year.
30(i) Except as provided in Section 288, any person over 21 years
31of age who participates in an act of sexual penetration with another
32person who is under 16 years of age shall be guilty of a felony.
33(j) Any person who participates in an act of sexual penetration
34with another person who is under 14 years of age and who is more
35than 10 years younger than he or she shall be punished by
36imprisonment in the state prison for three, six, or eight years.
37(k) As used in this section:
38(1) “Sexual penetration” is the act of causing the penetration,
39however slight, of the genital or anal opening of any person or
40causing another person to so penetrate the defendant’s or another
P19 1person’s genital or anal opening for the purpose of sexual arousal,
2gratification, or abuse by any foreign object, substance, instrument,
3or device, or by any unknown object.
4(2) “Foreign object, substance, instrument, or device” shall
5include any part of the body, except a sexual organ.
6(3) “Unknown object” shall include any foreign object,
7substance, instrument, or device, or any part of the body, including
8a penis, when it is not known whether penetration was by a penis
9or by a foreign object, substance, instrument, or device, or by any
10other part of the body.
11(l) As used in subdivision (a), “threatening to retaliate” means
12a threat to kidnap or falsely imprison, or inflict extreme pain,
13serious bodily injury or death.
14(m) As used in this section, “victim” includes any person who
15the defendant causes to penetrate the genital or anal opening of
16the defendant or another person or whose genital or anal opening
17is caused to be penetrated by the defendant or another person and
18who otherwise qualifies as a victim under the requirements of this
19section.
Section 667.61 of the Penal Code is amended to read:
(a) Except as provided in subdivision (j), (l), or (m),
22any person who is convicted of an offense specified in subdivision
23(c) under one or more of the circumstances specified in subdivision
24(d) or under two or more of the circumstances specified in
25subdivision (e) shall be punished by imprisonment in the state
26prison for 25 years to life.
27(b) Except as provided in subdivision (a), (j), (l), or (m), any
28person who is convicted of an offense specified in subdivision (c)
29under one of the circumstances specified in subdivision (e) shall
30be punished by imprisonment in the state prison for 15 years to
31life.
32(c) This section shall apply to any of the following offenses:
33(1) Rape, in violation of paragraph
(1), (2), or (6) of subdivision
34(a) of Section 261.
35(2) Spousal rape, in violation of paragraph (1) or (4) of
36subdivision (a) of Section 262.
37(3) Rape, spousal rape, or sexual penetration, in concert, in
38violation of Section 264.1.
39(4) Lewd or lascivious act, in violation of subdivision (b) of
40Section 288.
P20 1(5) Sexual penetration, in violation of subdivision (a) or (b) of
2Section 289.
3(6) Sodomy, in violation of paragraph (2) or (3) of
subdivision
4(c), or subdivision (d) or (g), of Section 286.
5(7) Oral copulation, in violation of paragraph (2) or (3) of
6subdivision (c), or subdivision (d) or (g), of Section 288a.
7(8) Lewd or lascivious act, in violation of subdivision (a) of
8Section 288.
9(9) Continuous sexual abuse of a child or continuous sexual
10abuse of a disabled person, in violation of Section 288.5.
11(d) The following circumstances shall apply to the offenses
12specified in subdivision (c):
13(1) The defendant has been previously convicted of an offense
14specified in subdivision (c), including an offense committed in
15another jurisdiction that includes all of the elements of an offense
16specified in subdivision (c).
17(2) The defendant kidnapped the victim of the present offense
18and the movement of the victim substantially increased the risk of
19harm to the victim over and above that level of risk necessarily
20inherent in the underlying offense in subdivision (c).
21(3) The defendant inflicted aggravated mayhem or torture on
22the victim or another person in the commission of the present
23offense in violation of Section 205 or 206.
24(4) The defendant committed the present offense during the
25commission of a burglary of the first degree, as defined in
26subdivision (a) of Section 460, with intent to commit an offense
27specified in subdivision (c).
28(5) The defendant committed the present offense in violation
29of Section 264.1, subdivision (d) of Section 286, or subdivision
30(d) of Section 288a, and, in the commission of that offense, any
31person committed any act described in paragraph (2), (3), or (4)
32of this subdivision.
33(6) The defendant personally inflicted great bodily injury on
34the victim or another person in the commission of the present
35offense in violation of Section 12022.53, 12022.7, or 12022.8.
36(7) The defendant personally inflicted bodily harm on the victim
37who was under 14 years
of age.
38(e) The following circumstances shall apply to the offenses
39specified in subdivision (c):
P21 1(1) Except as provided in paragraph (2) of subdivision (d), the
2defendant kidnapped the victim of the present offense in violation
3of Section 207, 209, or 209.5.
4(2) Except as provided in paragraph (4) of subdivision (d), the
5defendant committed the present offense during the commission
6of a burglary in violation of Section 459.
7(3) The defendant personally used a dangerous or deadly weapon
8or a firearm in the commission of the present offense in violation
9of Section 12022, 12022.3, 12022.5, or 12022.53.
10(4) The defendant has been convicted in the present case or
11cases of committing an offense
specified in subdivision (c) against
12more than one victim.
13(5) The defendant engaged in the tying or binding of the victim
14or another person in the commission of the present offense.
15(6) The defendant administered a controlled substance to the
16victim in the commission of the present offense in violation of
17Section 12022.75.
18(7) The defendant committed the present offense in violation
19of Section 264.1, subdivision (d) of Section 286, or subdivision
20(d) of Section 288a, and, in the commission of that offense, any
21person committed any act described in paragraph (1), (2), (3), (5),
22or (6) of this subdivision or paragraph (6) of subdivision (d).
23(f) If only the minimum number of circumstances specified in
24subdivision (d) or (e) that are required for the
punishment provided
25in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
26proved, that circumstance or those circumstances shall be used as
27the basis for imposing the term provided in subdivision (a), (b),
28(j), (l), or (m) whichever is greater, rather than being used to impose
29the punishment authorized under any other provision of law, unless
30another provision of law provides for a greater penalty or the
31punishment under another provision of law can be imposed in
32addition to the punishment provided by this section. However, if
33any additional circumstance or circumstances specified in
34subdivision (d) or (e) have been pled and proved, the minimum
35number of circumstances shall be used as the basis for imposing
36the term provided in subdivision (a), (j), or (l) and any other
37additional circumstance or circumstances shall be used to impose
38any punishment or enhancement authorized under any other
39provision of law.
P22 1(g) Notwithstanding
Section 1385 or any other provision of law,
2the court shall not strike any allegation, admission, or finding of
3any of the circumstances specified in subdivision (d) or (e) for any
4person who is subject to punishment under this section.
5(h) Notwithstanding any other provision of law, probation shall
6not be granted to, nor shall the execution or imposition of sentence
7be suspended for, any person who is subject to punishment under
8this section.
9(i) For any offense specified in paragraphs (1) to (7), inclusive,
10of subdivision (c), or in paragraphs (1) to (6), inclusive, of
11subdivision (n), the court shall impose a consecutive sentence for
12each offense that results in a conviction under this section if the
13crimes involve separate victims or involve the same victim on
14separate occasions as defined in subdivision (d) of Section 667.6.
15(j) (1) Any person who is convicted of an offense specified in
16subdivision (c), with the exception of a violation of subdivision
17(a) of Section 288, upon a victim who is a child under 14 years of
18age under one or more of the circumstances specified in subdivision
19(d) or under two or more of the circumstances specified in
20subdivision (e), shall be punished by imprisonment in the state
21prison for life without the possibility of parole. Where the person
22was under 18 years of age at the time of the offense, the person
23shall be punished by imprisonment in the state prison for 25 years
24to life.
25(2) Any person who is convicted of an offense specified in
26subdivision (c) under one of the circumstances specified in
27subdivision (e), upon a victim who is a child under 14 years of
28age, shall be punished by imprisonment in the state prison for 25
29years to life.
30(k) As used in this section, “bodily harm” means any substantial
31physical injury resulting from the use of force that is more than
32the force necessary to commit an offense specified in subdivision
33(c).
34(l) Any person who is convicted of an offense specified in
35subdivision (n) under one or more of the circumstances specified
36in subdivision (d) or under two or more of the circumstances
37specified in subdivision (e), upon a victim who is a minor 14 years
38of age or older shall be punished by imprisonment in the state
39prison for life without the possibility of parole. If the person who
40was convicted was under 18 years of age at the time of the offense,
P23 1he or she shall be punished by imprisonment in the state prison
2for 25 years to life.
3(m) Any person who is convicted of an offense specified in
4subdivision (n) under one of the circumstances specified in
5subdivision (e)
against a minor 14 years of age or older shall be
6punished by imprisonment in the state prison for 25 years to life.
7(n) Subdivisions (l) and (m) shall apply to any of the following
8offenses:
9(1) Rape, in violation of paragraph (1) or (2) of subdivision (a)
10of Section 261.
11(2) Spousal rape, in violation of paragraph (1) of subdivision
12(a) of Section 262.
13(3) Rape, spousal rape, or sexual penetration, in concert, in
14violation of Section 264.1.
15(4) Sexual penetration, in violation of paragraph (1) of
16subdivision
(a) of, or subdivision (b) of
Section 289.
17(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
18Section 286, or in violation of subdivision (d) or (g) of Section
19286.
20(6) Oral copulation, in violation of paragraph (2) of subdivision
21(c) of Section 288a, or in violation of subdivision (d) or (g) of
22Section 288a.
23(o) The penalties provided in this section shall apply only if the
24existence of any circumstance specified in subdivision (d) or (e)
25is alleged in the accusatory pleading pursuant to this section, and
26is either admitted by the defendant in open court or found to be
27true by the trier of
fact.
No reimbursement is required by this act pursuant to
30Section 6 of Article XIII B of the California Constitution because
31the only costs that may be incurred by a local agency or school
32district will be incurred because this act creates a new crime or
33infraction, eliminates a crime or infraction, or changes the penalty
34for a crime or infraction, within the meaning of Section 17556 of
35the Government Code, or changes the definition of a crime within
36the meaning of Section 6 of Article XIII B of the California
37Constitution.
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