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AB-2009 Sex offenses.(1993-1994)

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AB2009:v94#DOCUMENT

Assembly Bill No. 2009
CHAPTER 587

An act to amend Section 1203.066 of the Penal Code, relating to sex offenses.

[ Filed with Secretary of State  October 01, 1993. Approved by Governor  September 28, 1993. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 2009, Snyder. Sex offenses.
Existing law provides that any person who willfully and lewdly commits any lewd or lascivious act, as specified, (1) upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the child, or (2) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony.
Existing law provides that probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within these provisions be stricken, as specified, for any person who violates the above offense under specified circumstances or who is convicted of kidnapping the child victim, as specified, and who kidnapped the victim for the purpose of committing the above offense.
Existing law provides that any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than 3 months in duration, engages in 3 or more acts of substantial sexual conduct, as defined, with a child under the age of 14 years at the time of the commission of the offense, or 3 or more acts of lewd or lascivious conduct in violation of the above provision with a child under the age of 14 years at the time of the commission of the offense, is guilty of the offense of continuous sexual abuse of a child, punishable by imprisonment in the state prison for 6, 12, or 16 years.
This bill would extend the above provision prohibiting the granting of probation to apply to the offense of continuous sexual abuse of a child as well as lewd and lascivious acts, as specified. This bill also would revise certain of the specified circumstances that apply to a violation of these offenses and make a person ineligible for probation.

The people of the State of California do enact as follows:


SECTION 1.

 Section 1203.066 of the Penal Code is amended to read:

1203.066.
 (a)  Notwithstanding Section 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons:
(1)  A person convicted of violating Section 288 or 288.5 when the act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(2)  A person who caused bodily injury on the child victim in committing a violation of Section 288 or 288.5.
(3)  A person convicted of a violation of Section 288 or 288.5 and who was a stranger to the child victim or befriended the child victim for the purpose of committing an act in violation of Section 288 or 288.5, unless the defendant honestly and reasonably believed the victim was 14 years of age or older.
(4)  A person who used a weapon during the commission of a violation of Section 288 or 288.5.
(5)  A person convicted of committing a violation of Section 288 or 288.5 and who has previously been convicted of a violation of Section 261, 264.1, 266, 267, 285, 288, 288.5, or 289, of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, or of assaulting another with intent to commit a crime specified in this paragraph in violation of Section 220.
(6)  A person convicted of kidnapping the child victim in violation of either Section 207 or 209 and who kidnapped the victim for the purpose of committing a violation of Section 288 or 288.5.
(7)  A person who is convicted of committing a violation of Section 288 or 288.5 against more than one victim.
(8)  A person who in violating Section 288 or 288.5 has substantial sexual conduct with a victim under the age of 11 years.
(9)  A person who occupies a position of special trust and commits an act of substantial sexual conduct. “Position of special trust” means that position occupied by a person in a position of authority who by reason of that position is able to exercise undue influence over the victim. Position of authority includes, but is not limited to, the position occupied by a natural parent, adoptive parent, stepparent, foster parent, relative, household member, adult youth leader, recreational director who is an adult, adult athletic manager, adult coach, teacher, counselor, religious leader, doctor, or employer.
(10)  A person who, in committing a violation of Section 288 or 288.5, used obscene matter, as defined in Section 311, or matter (as defined in Section 311) depicting sexual conduct, as defined in Section 311.3.
(b)  “Substantial sexual conduct” means penetration of the vagina or rectum by the penis of the offender or by any foreign object, oral copulation, or masturbation of either the victim or the offender.
(c)  Paragraphs (7), (8), (9), and (10) of subdivision (a) shall not apply when the court makes all of the following findings:
(1)  The defendant is the victim’s natural parent, adoptive parent, stepparent, relative, or is a member of the victim’s household who has lived in the household.
(2)  A grant of probation to the defendant is in the best interest of the child.
(3)  Rehabilitation of the defendant is feasible in a recognized treatment program designed to deal with child molestation, and if the defendant is to remain in the household, a program that is specifically designed to deal with molestation within the family.
(4)  There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to. The court shall state its reasons on the record for whatever sentence it imposes on the defendant.
The court shall order the psychiatrist or psychologist appointed pursuant to Section 288.1 to include a consideration of the factors specified in paragraphs (2), (3), and (4) in making his or her report to the court.
(d)  The existence of any fact which would make a person ineligible for probation under subdivision (a) shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.