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AB-516 Sex offenses: disabled victims.(2017-2018)

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Date Published: 02/13/2017 09:00 PM
AB516:v99#DOCUMENT

Revised  March 21, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 516


Introduced by Assembly Member Maienschein
(Coauthors: Assembly Members Acosta, Travis Allen, Baker, Brough, Chávez, Gallagher, Lackey, Mathis, Mayes, Patterson, Voepel, and Waldron)
(Coauthors: Senators Anderson, Bates, Berryhill, Cannella, Nguyen, and Nielsen Nielsen, Stone, and Vidak)

February 13, 2017


An act to amend Sections 667.61 and 667.9 of the Penal Code, relating to sex offenses.


LEGISLATIVE COUNSEL'S DIGEST


AB 516, as introduced, Maienschein. Sex offenses: disabled victims.
(1) Existing law, as amended by Proposition 83, the Sexual Predator Punishment and Control Act (Jessica’s Law), approved by the voters at the November 7, 2006, statewide general election, makes a defendant subject to imprisonment in the state prison for 25 years to life if convicted of certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, among other things, in the commission of that offense, any person kidnapped the victim, tortured the victim, or committed the offense during the commission of a burglary, as specified. Existing law also makes a defendant subject to imprisonment in the state prison for 15 years to life if convicted of certain crimes, including rape, sexual penetration, sodomy, oral copulation, continuous sexual abuse of a child, or rape, spousal rape, or sexual penetration in concert, if certain circumstances were present, including, among other things, in the commission of that offense any person, except as specified in the provisions above, kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense. Proposition 83 provides that the Legislature may amend the provisions of the act to expand the scope of their application or increase the punishment or penalties by a statute passed by a majority vote of each house of the Legislature.
This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions, if the victim is developmentally disabled, as defined. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(2) Existing law makes a defendant subject to imprisonment in the state prison for 25 years to life if convicted of certain crimes, including rape, spousal rape or sexual penetration in concert, sexual penetration, sodomy, or oral copulation if certain circumstances were present, including, among other things, in the commission of that offense, any person kidnapped the victim, committed the offense during the commission of a burglary, or used a dangerous or deadly weapon in the commission of the offense, or under other specified circumstances, and the crime was committed against a minor 14 years of age or older.
This bill would add the crimes of rape, sexual penetration, sodomy, and oral copulation, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, to the above provisions, if the victim is developmentally disabled, as defined. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(3) Existing law requires that a person who commits certain enumerated crimes, including rape, sodomy, oral copulation, and sexual penetration, against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under 14 years of age, receive a one-year sentence enhancement and requires that any person having a prior conviction for any of the enumerated offenses receive a 2-year sentence enhancement.
This bill would add to the enumerated list of crimes rape, sodomy, oral copulation, and sexual penetration, perpetrated against a person who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent. By applying the above enhancements to these crimes, this bill would impose a state-mandated local program.
(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 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, child in violation of Section 288.5.
(10) Rape, in violation of paragraph (1) of subdivision (a) of Section 261, if the victim was “developmentally disabled,” as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(11) Sexual penetration, in violation of subdivision (b) of Section 289, if the victim was “developmentally disabled,” as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(12) Sodomy, in violation of subdivision (g) of Section 286, if the victim was “developmentally disabled,” as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(13) Oral copulation, in violation of subdivision (g) of Section 288a, if the victim was “developmentally disabled,” as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(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 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 minor, 14 years of age or older 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 minor, 14 years of age or older 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.
(7) Rape, in violation of paragraph (1) of subdivision (a) of Section 261, if the victim was “developmentally disabled,” as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(8) Sexual penetration, in violation of subdivision (b) of Section 289, if the victim was “developmentally disabled,” as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(9) Sodomy, in violation of subdivision (g) of Section 286, if the victim was “developmentally disabled,” as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(10) Oral copulation, in violation of subdivision (g) of Section 288a, if the victim was “developmentally disabled,” as defined in subdivision (d) of Section 667.9, and that fact is alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(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. 2.

 Section 667.9 of the Penal Code is amended to read:

667.9.
 (a) Any person who commits one or more of the crimes specified in subdivision (c) against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under the age of 14 years, and that disability or condition is known or reasonably should be known to the person committing the crime, shall receive a one-year enhancement for each violation.
(b) Any person who commits a violation of subdivision (a) and who has a prior conviction for any of the offenses specified in subdivision (c), shall receive a two-year enhancement for each violation in addition to the sentence provided under Section 667.
(c) Subdivisions (a) and (b) apply to the following crimes:
(1) Mayhem, in violation of Section 203 or 205.
(2) Kidnapping, in violation of Section 207, 209, or 209.5.
(3) Robbery, in violation of Section 211.
(4) Carjacking, in violation of Section 215.
(5) Rape, in violation of paragraph (2) (1), (2), or (6) of subdivision (a) of Section 261.
(6) Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Section 262.
(7) Rape, spousal rape, or sexual penetration in concert, in violation of Section 264.1.
(8) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), (d) or (g), of Section 286.
(9) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), (d) or (g), of Section 288a.
(10) Sexual penetration, in violation of subdivision (a) or (b) of Section 289.
(11) Burglary of the first degree, as defined in Section 460, in violation of Section 459.
(d) As used in this section, “developmentally disabled” means a severe, chronic disability of a person, which is all of the following:
(1) Attributable to a mental or physical impairment or a combination of mental and physical impairments.
(2) Likely to continue indefinitely.
(3) Results in substantial functional limitation in three or more of the following areas of life activity:
(A) Self-care.
(B) Receptive and expressive language.
(C) Learning.
(D) Mobility.
(E) Self-direction.
(F) Capacity for independent living.
(G) Economic self-sufficiency.

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.
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REVISIONS:
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