BILL NUMBER: AB 2661 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Ackerman
(Coauthors: Assembly Members Baldwin, Bates, Battin, Campbell,
Cox, Dickerson, House, Kaloogian, Leach, Maldonado, Margett, and Rod
Pacheco)
(Coauthor: Senator Lewis)
FEBRUARY 25, 2000
An act to amend Sections 311.1, 311.2, and 311.11 of, and to add
Section 1203.68 to, the Penal Code, relating to child pornography.
LEGISLATIVE COUNSEL'S DIGEST
AB 2661, as introduced, Ackerman. Child pornography.
Existing law includes provisions governing obscene matters and
child pornography for children under 18 years of age.
This bill would increase the penalties, as specified, for certain
classes of child pornography that depict children under 14 years of
age. This bill would also prohibit probation, the execution or
imposition of a suspended sentence, and a finding that the action be
stricken, as specified, for offenders found to possess over 50 images
of child pornography depicting children under 14 years personally
engaging in or simulating sexual conduct, as defined.
By increasing the penalty for certain classes of crimes, this bill
would impose a state-mandated local program by increasing
prosecution costs.
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 311.1 of the Penal Code is amended to read:
311.1. (a) (1) Every person who knowingly sends or
causes to be sent, or brings or causes to be brought, into this state
for sale or distribution, or in this state possesses, prepares,
publishes, produces, develops, duplicates, or prints any
representation of information, data, or image, including, but not
limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image
that contains or incorporates in any manner, any film or filmstrip,
with intent to distribute or to exhibit to, or to exchange with,
others, or who offers to distribute, distributes, or exhibits to, or
exchanges with, others, any obscene matter, knowing that the matter
depicts a person under the age of 18 years personally engaging in or
personally simulating sexual conduct, as defined in Section 311.4,
shall be punished either by imprisonment in the county jail for up to
one year, by a fine not to exceed one thousand dollars ($1,000), or
by both the fine and imprisonment, or by imprisonment in the state
prison, by a fine not to exceed ten thousand dollars ($10,000), or by
the fine and imprisonment.
(2) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment, or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or to
exhibit to, or to exchange with, others, or who offers to distribute,
distributes, or exhibits to, or exchanges with, others, any obscene
matter, knowing that the matter depicts a person under the age of 14
years personally engaging in or personally simulating sexual conduct,
as defined in Section 311.4, is guilty of a felony and shall be
punished either by imprisonment in the state prison, by a fine not to
exceed ten thousand dollars ($10,000), or by the fine and
imprisonment.
(b) This section does not apply to the activities of law
enforcement and prosecuting agencies in the investigation and
prosecution of criminal offenses or to legitimate medical,
scientific, or educational activities, or to lawful conduct between
spouses.
(c) This section does not apply to matter which depicts a child
under the age of 18, which child is legally emancipated, including
lawful conduct between spouses when one or both are under the age of
18.
(d) It does not constitute a violation of this section for a
telephone corporation, as defined by Section 234 of the Public
Utilities Code, to carry or transmit messages described in this
chapter or perform related activities in providing telephone
services.
SEC. 2. Section 311.2 of the Penal Code is amended to read:
311.2. (a) Every person who knowingly sends or causes to be sent,
or brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, or prints, with intent to distribute or to exhibit to
others, or who offers to distribute, distributes, or exhibits to
others, any obscene matter is for a first offense, guilty of a
misdemeanor. If the person has previously been convicted of any
violation of this section, the court may, in addition to the
punishment authorized in Section 311.9, impose a fine not exceeding
fifty thousand dollars ($50,000).
(b) (1) Every person who knowingly sends or causes to
be sent, or brings or causes to be brought, into this state for sale
or distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or to
exhibit to, or to exchange with, others for commercial consideration,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, others for commercial consideration, any obscene
matter, knowing that the matter depicts a person under the age of 18
years personally engaging in or personally simulating sexual conduct,
as defined in Section 311.4, is guilty of a felony and shall be
punished by imprisonment in the state prison for two, three, or six
years, or by a fine not exceeding one hundred thousand dollars
($100,000), in the absence of a finding that the defendant would be
incapable of paying such a fine, or by both that fine and
imprisonment.
(2) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or to
exhibit to, or to exchange with, others for commercial consideration,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, others for commercial consideration, any obscene
matter, knowing that the matter depicts a person under the age of 14
years personally engaging in or personally simulating sexual conduct,
as defined in Section 311.4, is guilty of a felony and shall be
punished by imprisonment in the state prison for three, six or eight
years, or by a fine not exceeding one hundred thousand dollars
($100,000), in the absence of a finding that the defendant would be
incapable of paying such a fine, or by both that fine and
imprisonment.
(c) (1) Every person who knowingly sends or causes to
be sent, or brings or causes to be brought, into this state for sale
or distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person 18 years of age or older,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, a person 18 years of age or older any matter, knowing
that the matter depicts a person under the age of 18 years
personally engaging in or personally simulating sexual conduct, as
defined in Section 311.4, is guilty of a misdemeanor and shall be
punished by imprisonment in the county jail for up to one year, or by
a fine not exceeding two thousand dollars ($2,000), or by both that
fine and imprisonment. It is not necessary to prove commercial
consideration or that the matter is obscene in order to establish a
violation of this subdivision. If a person has been previously
convicted of a violation of this subdivision, he or she is guilty of
a felony.
(2) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person 18 years of age or older,
or who offers to distribute, distributes, or exhibits to, or
exchanges with, a person 18 years of age or older any matter, knowing
that the matter depicts a person under the age of 14 years
personally engaging in or personally simulating sexual conduct, as
defined in Section 311.4, is guilty of a felony and shall be punished
by imprisonment in the state prison, or by a fine not exceeding ten
thousand dollars ($10,000), or by both that fine and imprisonment.
It is not necessary to prove commercial consideration or that the
matter is obscene in order to establish a violation of this
subdivision. If a person has been previously convicted of a
violation of this subdivision, he or she is guilty of a felony and
shall be punished by imprisonment in the state prison for two, three,
or six years, or by a fine not exceeding one hundred thousand
dollars ($100,000), or by both that fine and imprisonment.
(d) (1) Every person who knowingly sends or causes to
be sent, or brings or causes to be brought, into this state for sale
or distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person under 18 years of age, or
who offers to distribute, distributes, or exhibits to, or exchanges
with, a person under 18 years of age any matter, knowing that the
matter depicts a person under the age of 18 years personally engaging
in or personally simulating sexual conduct, as defined in Section
311.4, is guilty of a felony. It is not necessary to prove
commercial consideration or that the matter is obscene in order to
establish a violation of this subdivision.
(2) Every person who knowingly sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state possesses, prepares, publishes,
produces, develops, duplicates, or prints any representation of
information, data, or image, including, but not limited to, any film,
filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy
disc, data storage media, CD-ROM, or computer-generated equipment or
any other computer-generated image that contains or incorporates in
any manner, any film or filmstrip, with intent to distribute or
exhibit to, or to exchange with, a person under 18 years of age, or
who offers to distribute, distributes, or exhibits to, or exchanges
with, a person under 18 years of age any matter, knowing that the
matter depicts a person under the age of 14 years personally engaging
in or personally simulating sexual conduct, as defined in Section
311.4, is guilty of a felony and shall be punished by imprisonment in
the state prison for two, three or six years, or by a fine not
exceeding one hundred thousand dollars ($100,000), or by both that
fine and imprisonment. It is not necessary to prove commercial
consideration or that the matter is obscene in order to establish a
violation of this subdivision.
(e) Subdivisions (a) to (d), inclusive, do not apply to the
activities of law enforcement and prosecuting agencies in the
investigation and prosecution of criminal offenses, to legitimate
medical, scientific, or educational activities, or to lawful conduct
between spouses.
(f) This section does not apply to matter that depicts a legally
emancipated child under the age of 18 years or to lawful conduct
between spouses when one or both are under the age of 18 years.
(g) It does not constitute a violation of this section for a
telephone corporation, as defined by Section 234 of the Public
Utilities Code, to carry or transmit messages described in this
chapter or to perform related activities in providing telephone
services.
SEC. 3. Section 311.11 of the Penal Code is amended to read:
311.11. (a) (1) Every person who knowingly possesses
or controls any matter, representation of information, data, or
image, including, but not limited to, any film, filmstrip,
photograph, negative, slide, photocopy, videotape, video laser disc,
computer hardware, computer software, computer floppy disc, data
storage media, CD-ROM, or computer-generated equipment or any other
computer-generated image that contains or incorporates in any manner,
any film or filmstrip, the production of which involves the use of
a person under the age of 18 years, knowing that the matter depicts a
person under the age of 18 years personally engaging in or
simulating sexual conduct, as defined in subdivision (d) of Section
311.4, is guilty of a public offense and shall be punished by
imprisonment in the county jail for up to one year, or by a fine not
exceeding two thousand five hundred dollars ($2,500), or by both the
fine and imprisonment.
(2) Every person who knowingly possesses or controls any matter,
representation of information, data, or image, including, but not
limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image
that contains or incorporates in any manner, any film or filmstrip,
the production of which involves the use of a person under the age of
14 years, knowing that the matter depicts a person under the age of
14 years personally engaging in or simulating sexual conduct, as
defined in subdivision (d) of Section 311.4, is guilty of a public
offense and shall be punished by imprisonment in a county jail for no
less than 90 days and up to one year, or by a fine not exceeding two
thousand five hundred dollars ($2,500), or by both the fine and
imprisonment, or by imprisonment in the state prison, or by a fine
not exceeding ten thousand dollars ($10,000), or by both that fine
and imprisonment.
(b) If a person has been previously convicted of a violation of
either paragraph (1) or (2) of subdivision (a) of this
section, and is subsequently convicted of paragraph (1) of
subdivision (a), he or she is guilty of a felony and shall be
punished by imprisonment for two, four, or six years. If a
person has been previously convicted of a violation of either
paragraph (1) or (2) of subdivision (a) of this section, and is
subsequently convicted of paragraph (2) of subdivision (a), he or she
is guilty of a felony and shall be punished by imprisonment for
three, six or eight years.
(c) It is not necessary to prove that the matter is obscene in
order to establish a violation of this section.
(d) This section does not apply to drawings, figurines, statues,
or any film rated by the Motion Picture Association of America, nor
does it apply to live or recorded telephone messages when
transmitted, disseminated, or distributed as part of a commercial
transaction.
SEC. 4. Section 1203.068 is added to the Penal Code, to read:
1203.068. Notwithstanding Section 1203, or any other law,
probation shall not be granted to, the execution or imposition of a
sentence shall not be suspended for, nor shall a finding bringing the
defendant within the provisions of this section be stricken pursuant
to Section 1385 for a person who is convicted of a felony violation
of Section 288.2, 311.1, 311.2, 311.25, 311.3, 311.4, or 311.11 when
the person is found to be in possession of 50 or more images stored
on any film, filmstrip, photograph, negative slide, photocopy,
videotape, video laser disc, computer hardware, computer software,
computer floppy disc, data storage media, CD-ROM, or
computer-generated equipment or any other computer-generated image
that contains or incorporates in any manner, any film or filmstrip,
the production of which involves the use of a person under the age of
14 years, knowing that the manner depicts a person under the age of
14 years personally engaging in or simulating sexual conduct as
defined in subdivision (d) of Section 311.4.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB 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 XIIIB of the California Constitution.