Bill Text: CA SB145 | 2013-2014 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Sex offenders: child pornography.

Spectrum: Bipartisan Bill

Status: (Passed) 2013-10-12 - Chaptered by Secretary of State. Chapter 777, Statutes of 2013. [SB145 Detail]

Download: California-2013-SB145-Introduced.html

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BILL NUMBER: SB 145	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Pavley
   (Principal coauthor: Assembly Member Gorell)

                        JANUARY 31, 2013

   An act to amend Section 311.11 of the Penal Code, relating to sex
offenders.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 145, as introduced, Pavley. Sex offenders: child pornography.
   Existing law makes it a felony, punishable by imprisonment in the
state prison for 16 months, or 2 or 3 years, or in a county jail for
up to one year, or by a fine not exceeding $2,500, or by both the
fine and imprisonment, to knowingly possess or control child
pornography, as specified. A subsequent violation of this provision
is punishable by imprisonment in the state prison for 2, 4, or 6
years.
   This bill would delete the sentencing structure of 2, 4, or 6
years for a subsequent violation of that provision and increase it to
3, 5, or 7 years. This bill would also make it either a felony,
punishable by imprisonment in the state prison for 3, 5, or 7 years,
or a misdemeanor, punishable by imprisonment in a county jail for up
to one year, or by a fine not exceeding $2,500, or by both the fine
and imprisonment, if the person knowingly possesses or controls child
pornography, as specified, and the matter contains more than 600
images, as defined, at least 10 of which are images of prepubescent
minors or minors under 12 years of age; or the person intends to use
the images to persuade, induce, entice, coerce, or facilitate the
travel of a minor to engage in sexual activity; or the matter
portrays sexual sadism or sexual masochism involving a minor.
   This bill would make other technical, nonsubstantive, and
conforming changes.
   Existing law, Proposition 83, as approved by the voters at the
November 7, 2006, statewide general election, amended Section 311.11
of the Penal Code. The act authorizes the Legislature to amend its
provisions to expand the scope of its application or to increase the
punishments or penalties established by the act by a statute passed
by a majority vote of each house thereof.
   Because the bill would increase punishments provided in the act by
increasing the sentencing for a subsequent possession of child
pornography conviction from 2, 4, or 6 years to 3, 5, or 7 years the
bill may be passed by a majority vote of each house of the
Legislature.
   Because a violation of the provisions would be a crime, this bill
would impose a state-mandated 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.
   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 311.11 of the Penal Code is amended to read:
   311.11.  (a) 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  of age  , knowing that the
matter depicts a person under  the age of  18 years
 of age  personally engaging in or simulating sexual
conduct, as defined in subdivision (d) of Section 311.4, is guilty of
a felony and shall be punished by imprisonment in the state prison,
or a 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.
   (b) Every person who commits a violation of subdivision (a), and
who has been previously convicted of a violation of this section, an
offense requiring registration under the Sex Offender Registration
Act, or an attempt to commit any of the above-mentioned offenses, is
guilty of a felony and shall be punished by imprisonment in the state
prison for  two, four, or six   three, five, or
seven  years. 
   (c) Each person who commits a violation of subdivision (a) shall
be punished by imprisonment in the state prison for three, five, or
seven years, or shall be punished by imprisonment in a 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, if
one of the following factors exists:  
   (1) The matter contains more than 600 images that violate
subdivision (a), and the matter contains 10 or more images involving
a prepubescent minor or a minor who has not attained 12 years of age.
 
   (2) The person intends to use the matter to persuade, induce,
entice, coerce, or facilitate the travel of a minor for the purpose
of committing an offense listed in subdivision (c) of Section 290, or
has attempted to commit any of the offenses described in this
paragraph.  
   (3) The matter portrays sexual sadism or sexual masochism
involving a person under 18 years of age.  
   (c) 
    (d)  It is not necessary to prove that the matter is
obscene in order to establish a violation of this section. 
   (d) 
    (e)  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. 
   (f) For purposes of determining the number of images under
paragraph (1) of subdivision (c), the following shall apply: 

   (1) Each photograph, picture, computer, or computer-generated
image, or any similar visual depiction shall be considered to be one
image.  
   (2) Each video, video-clip, movie, or similar visual depiction
shall be considered to have 75 images. 
  SEC. 2.  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.