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

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-Amended.html

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BILL NUMBER: SB 145	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 2, 2013

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

                        JANUARY 31, 2013

   An act to amend Section 311.11 of  , and to repeal and add
Section 288.2 of,  the Penal Code, relating to sex offenders.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 145, as amended, Pavley. Sex offenders: child pornography. 

   (1) Existing law makes it either a crime for a person, with
knowledge that another person is a minor, to knowingly distribute,
send, cause to be sent, exhibit, or offer to distribute or exhibit by
electronic mail or the Internet any harmful matter, as defined, to a
minor with the intent of arousing, appealing to, or gratifying the
lust or passions or sexual desires of that person or the minor, and
with the intent or the purpose of seducing a minor.  
   This bill would instead make it a misdemeanor or a felony for
every person who knows, should have known, or believes that another
person is a minor to distribute or exhibit harmful matter, as
defined, depicting a minor or minors engaging in sexual conduct, with
the intent of arousing, appealing to, or gratifying the lust or
passions or sexual desires of that person or of a minor, and with the
intent or for the purpose of engaging in sexual intercourse, sodomy,
oral copulation, or with the intent that either person touch an
intimate body part of the other. The bill would make a violation of
these provisions punishable by imprisonment in a county jail not
exceeding one year, or in the state prison for 3, 5, or 7 years.
 
   If the matter used was harmful matter, as defined, but does not
include a depiction of a minor engaged in sexual conduct, or if the
matter used was not harmful matter, but did include a depiction of a
minor engaged in sexual conduct, the bill would make a violation of
these provisions punishable by imprisonment in a county jail not
exceeding one year, or in the state prison for 2, 3, or 4 years.
 
   If the person used the matter with the intent to engage in sexual
conduct with a minor that does not involve sexual intercourse,
sodomy, oral copulation, or the touching of an intimate body part of
the other person, the bill would make a violation of these provisions
punishable by imprisonment in a county jail not exceeding one year,
or in the state prison for 18 months, or 2 or 3 years.  
   By increasing the punishment for a crime, this bill would impose a
state-mandated local program.  
   Existing 
    (2)     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 288.2 of the   Penal
Code   is repealed.  
   288.2.  (a) (1) Every person who, with knowledge that a person is
a minor, or who fails to exercise reasonable care in ascertaining the
true age of a minor, knowingly distributes, sends, causes to be
sent, exhibits, or offers to distribute or exhibit by any means,
including, but not limited to, live or recorded telephone messages,
any harmful matter, as defined in Section 313, to a minor with the
intent of arousing, appealing to, or gratifying the lust or passions
or sexual desires of that person or of a minor, and with the intent
or for the purpose of seducing a minor, is guilty of a public offense
and shall be punished by imprisonment in the state prison or in a
county jail.
   (2) A person convicted of a second and any subsequent conviction
for a violation of this subdivision is guilty of a felony and shall
be punished by imprisonment in state prison.
   (b) (1) Every person who, with knowledge that a person is a minor,
knowingly distributes, sends, causes to be sent, exhibits, or offers
to distribute or exhibit by electronic mail, the Internet, as
defined in Section 17538 of the Business and Professions Code, or a
commercial online service, any harmful matter, as defined in Section
313, to a minor with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person or
of a minor, and with the intent, or for the purpose of seducing a
minor, is guilty of a public offense and shall be punished by
imprisonment in the state prison or in a county jail.
   (2) A person convicted of a second and any subsequent conviction
for a violation of this subdivision is guilty of a felony punishable
by imprisonment in the state prison.
   (c) It shall be a defense to any prosecution under this section
that a parent or guardian committed the act charged in aid of
legitimate sex education.
   (d) It shall be a defense in any prosecution under this section
that the act charged was committed in aid of legitimate scientific or
educational purposes.
   (e) It does not constitute a violation of this section for a
telephone corporation, as defined in Section 234 of the Public
Utilities Code, a cable television company franchised pursuant to
Section 53066 of the Government Code, or any of its affiliates, an
Internet service provider, or commercial online service provider, to
carry, broadcast, or transmit messages described in this section or
perform related activities in providing telephone, cable television,
Internet, or commercial online services. 
   SEC. 2.    Section 288.2 is added to the  
Penal Code   , to read:  
   288.2.  (a) (1) Every person who knows, should have known, or
believes that another person is a minor, and who knowingly
distributes, sends, causes to be sent, exhibits, or offers to
distribute or exhibit by any means, including by physical delivery,
telephone, electronic communication, or in person, any harmful matter
that depicts a minor or minors engaging in sexual conduct, to the
other person with the intent of arousing, appealing to, or gratifying
the lust or passions or sexual desires of that person or of the
minor, and with the intent or for the purposes of engaging in sexual
intercourse, sodomy, or oral copulation with the other person, or
with the intent that either person touch an intimate body part of the
other, is guilty of a misdemeanor, punishable by imprisonment in a
county jail not exceeding one year, or is guilty of a felony,
punishable by imprisonment in the state prison for three, five, or
seven years.
   (2) If the matter used by the person is harmful matter but does
not include a depiction or depictions of a minor or minors engaged in
sexual conduct, the offense is punishable by imprisonment in a
county jail not exceeding one year, or by imprisonment in the state
prison for two, three, or four years.
   (3) If the matter used by the person includes a depiction or
depictions of a minor or minors engaged in sexual conduct, but is not
harmful matter, the offense is punishable by imprisonment in a
county jail not exceeding one year, or by imprisonment in the state
prison for two, three, or four years.
   (4) If the matter used by the person is either harmful matter, or
includes a depiction or depictions of a minor or minors engaged in
sexual conduct, or both, and the person intends to engage in sexual
conduct with a minor, or to induce a minor to engage in sexual
conduct, that does not involve sexual intercourse, sodomy, or oral
copulation with the other person, and does not involve either person
touching an intimate body part of the other, the offense is
punishable by imprisonment in a county jail not exceeding one year,
or by imprisonment in the state prison for 16 months, or two or three
years.
   (5) For purposes of this subdivision, each offense described in
paragraphs (2) to (4), inclusive, shall include all elements
described in paragraph (1), except as to the element or elements
modified in each subsequent paragraph.
   (b) For purposes of this section, "sexual conduct" has the same
meaning as defined in subdivision (d) of Section 311.4.
   (c) For purposes of this section, "harmful matter" has the same
meaning as defined in Section 313.
   (d) For purposes of this section, an intimate body part includes
the sexual organ, anus, groin, or buttocks of any person, or the
breasts of a female.
   (e) Prosecution under this section shall not preclude prosecution
under any other provision of law.
   (f) It shall be a defense to any prosecution under this section
that a parent or guardian committed the act charged in aid of
legitimate sex education.
   (g) It shall be a defense in any prosecution under this section
that the act charged was committed in aid of legitimate scientific or
educational purposes.
   (h) It does not constitute a violation of this section for a
telephone corporation, as defined in Section 234 of the Public
Utilities Code, a cable television company franchised pursuant to
Section 53066 of the Government Code, or any of its affiliates, an
Internet service provider, or commercial online service provider, to
carry, broadcast, or transmit messages described in this section or
perform related activities in providing telephone, cable television,
Internet, or commercial online services. 
   SECTION 1.   SEC. 3.   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 18 years
of age, knowing that the matter depicts a person under 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 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) 
    (2)  The matter portrays sexual sadism or sexual
masochism involving a person under 18 years of age.  For purposes
of this section, "sexual sadism" means the intentional infliction of
pain for purposes of sexual gratification or stimulation. For
purposes of this section, "sexual masochism" means intentionally
experiencing pain for purposes of sexual gratification or
stimulation. 
   (d) It is not necessary to prove that the matter is obscene in
order to establish a violation of this section.
   (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.   SEC. 4.   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.