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AB-1243 Sex crimes.(2011-2012)

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AB1243:v98#DOCUMENT

Amended  IN  Assembly  July 14, 2011

CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 1243


Introduced  by  Assembly Member Fletcher

February 18, 2011


An act to amend Section 6600 of the Welfare and Institutions Code, relating to sexually violent predators, and declaring the urgency thereof, An act to amend Section 667.61 of the Penal Code, relating to sex crimes, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 1243, as amended, Fletcher. Sexually violent predators. Sex crimes.
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, sodomy, or oral copulation 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, sodomy, or oral copulation 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, used a dangerous or deadly weapon in the commission of the offense, or under other specified circumstances. Proposition 83 provides that the Legislature may amend the provisions of the act to expand the scope of their application or increase the punishment or penalties by a statute passed by a majority vote of each house.
This bill would additionally include the infliction of great bodily injury on the victim or another person among that list of circumstances that if committed by any person in the commission by the defendant of rape, sodomy, or oral copulation would subject the defendant to imprisonment in the state prison for 15 years to life. The bill would include related findings and declarations. Because the bill would change the penalty for a crime, it would impose a state-mandated local program.
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.

Existing law defines “sexually violent predator” to mean a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. Existing law defines a sexually violent offense to include, among other offenses, a conviction for any of certain specified sex offenses that was committed prior to July 1, 1977, and that resulted in an indeterminate prison sentence.

This bill would make a technical, nonsubstantive change to these provisions.

This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) One purpose of the Chelsea King Child Predator Prevention Act of 2010 was to enhance the penalties upon a defendant who, in the commission of certain sex crimes, personally inflicted great bodily injury on the victim or another person, from a term of imprisonment in the state prison for 15 years to life to a term of imprisonment in the state prison for 25 years to life.
(b) It was also the intent of the Legislature that a defendant who commits an act described in Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 288a of the Penal Code, be punished by imprisonment in the state prison for 15 years to life if, in the commission of that offense, any person inflicts great bodily injury on the victim or another person.
(c) It is the intent of the Legislature by the enactment of this act to address this oversight.

SEC. 2.

 Section 667.61 of the Penal Code is amended to read:

667.61.
 (a) Except as provided in subdivision (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life.
(b) Except as provided in subdivision (a), (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.
(4) Lewd or lascivious act, in violation of subdivision (b) of Section 288.
(5) Sexual penetration, in violation of subdivision (a) of Section 289.
(6) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286.
(7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.
(8) Lewd or lascivious act, in violation of subdivision (a) of Section 288.
(9) Continuous sexual abuse of a child, in violation of Section 288.5.
(d) The following circumstances shall apply to the offenses specified in subdivision (c):
(1) The defendant has been previously convicted of an offense specified in subdivision (c), including an offense committed in another jurisdiction that includes all of the elements of an offense specified in subdivision (c).
(2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).
(3) The defendant inflicted aggravated mayhem or torture on the victim or another person in the commission of the present offense in violation of Section 205 or 206.
(4) The defendant committed the present offense during the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, with intent to commit an offense specified in subdivision (c).
(5) The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 288a, and, in the commission of that offense, any person committed any act described in paragraph (2), (3), or (4) of this subdivision.
(6) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.
(7) The defendant personally inflicted bodily harm on the victim who was under 14 years of age.
(e) The following circumstances shall apply to the offenses specified in subdivision (c):
(1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.
(2) Except as provided in paragraph (4) of subdivision (d), the defendant committed the present offense during the commission of a burglary in violation of Section 459.
(3) The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.53.
(4) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.
(5) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.
(6) The defendant administered a controlled substance to the victim in the commission of the present offense in violation of Section 12022.75.
(7) The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 288a, and, in the commission of that offense, any person committed any act described in paragraph (1), (2), (3), (5), or (6) of this subdivision or paragraph (6) of subdivision (d).
(f) If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a), (b), (j), (l), or (m) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a), (b), (j), (l), or (m) whichever is greater, rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or the punishment under another provision of law can be imposed in addition to the punishment provided by this section. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), (j), or (l) and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other provision of law.
(g) Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section.
(h) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section.
(i) For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), or in paragraphs (1) to (6), inclusive, of subdivision (n), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.
(j) (1) Any person who is convicted of an offense specified in subdivision (c), with the exception of a violation of subdivision (a) of Section 288, upon a victim who is a child under 14 years of age under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), shall be punished by imprisonment in the state prison for life without the possibility of parole. Where the person was under 18 years of age at the time of the offense, the person shall be punished by imprisonment in the state prison for 25 years to life.
(2) Any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life.
(k) As used in this section, “bodily harm” means any substantial physical injury resulting from the use of force that is more than the force necessary to commit an offense specified in subdivision (c).
(l) Any person who is convicted of an offense specified in subdivision (n) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), upon a victim who is a minor 14 years of age or older shall be punished by imprisonment in the state prison for life without the possibility of parole. If the person who was convicted was under 18 years of age at the time of the offense, he or she shall be punished by imprisonment in the state prison for 25 years to life.
(m) Any person who is convicted of an offense specified in subdivision (n) under one of the circumstances specified in subdivision (e) against a minor 14 years of age or older shall be punished by imprisonment in the state prison for 25 years to life.
(n) Subdivisions (l) and (m) shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) of subdivision (a) of Section 261.
(2) Spousal rape, in violation of paragraph (1) of subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.
(4) Sexual penetration, in violation of paragraph (1) of subdivision (a) of Section 289.
(5) Sodomy, in violation of paragraph (2) of subdivision (c) of Section 286, or in violation of subdivision (d) of Section 286.
(6) Oral copulation, in violation of paragraph (2) of subdivision (c) of Section 288a, or in violation of subdivision (d) of Section 288a.
(o) The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 4.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure, at the earliest possible time, appropriate sentencing of those convicted of committing violent crimes in concert with others, it is necessary for this act to take effect immediately.
SECTION 1.Section 6600 of the Welfare and Institutions Code is amended to read:
6600.

As used in this article, the following terms have the following meanings:

(a)(1)“Sexually violent predator” means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.

(2)For purposes of this subdivision any of the following shall be considered a conviction for a sexually violent offense:

(A)A prior or current conviction that resulted in a determinate prison sentence for an offense described in subdivision (b).

(B)A conviction for an offense described in subdivision (b) that was committed before July 1, 1977, and that resulted in an indeterminate prison sentence.

(C)A prior conviction in another jurisdiction for an offense that includes all of the elements of an offense described in subdivision (b).

(D)A conviction for an offense under a predecessor statute that includes all of the elements of an offense described in subdivision (b).

(E)A prior conviction for which the inmate received a grant of probation for an offense described in subdivision (b).

(F)A prior finding of not guilty by reason of insanity for an offense described in subdivision (b).

(G)A conviction resulting in a finding that the person was a mentally disordered sex offender.

(H)A prior conviction for an offense described in subdivision (b) for which the person was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities pursuant to Section 1731.5.

(I)A prior conviction for an offense described in subdivision (b) that resulted in an indeterminate prison sentence.

(3)Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health. Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.

(4)The provisions of this section shall apply to any person against whom proceedings were initiated for commitment as a sexually violent predator on or after January 1, 1996.

(b)“Sexually violent offense” means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of Section 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code, committed with the intent to commit a violation of Section 261, 262, 264.1, 286, 288, 288a, or 289 of the Penal Code.

(c)“Diagnosed mental disorder” includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.

(d)“Danger to the health and safety of others” does not require proof of a recent overt act while the offender is in custody.

(e)“Predatory” means an act is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.

(f)“Recent overt act” means any criminal act that manifests a likelihood that the actor may engage in sexually violent predatory criminal behavior.

(g)Notwithstanding any other provision of law and for purposes of this section, a prior juvenile adjudication of a sexually violent offense may constitute a prior conviction for which the person received a determinate term if all of the following apply:

(1)The juvenile was 16 years of age or older at the time he or she committed the prior offense.

(2)The prior offense is a sexually violent offense as specified in subdivision (b).

(3)The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 because of the person’s commission of the offense giving rise to the juvenile court adjudication.

(4)The juvenile was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities for the sexually violent offense.

(h)A minor adjudged a ward of the court for commission of an offense that is defined as a sexually violent offense shall be entitled to specific treatment as a sexual offender. The failure of a minor to receive that treatment shall not constitute a defense or bar to a determination that any person is a sexually violent predator within the meaning of this article.

SEC. 2.

This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order to ensure public safety and efficient treatment of sexually violent predators at the earliest possible time, it is necessary for this act to take effect immediately.