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  MAY 28, 2013
	AMENDED IN SENATE  APRIL 2, 2013

INTRODUCED BY   Senator Pavley
   (Principal coauthor: Assembly Member Gorell)
    (   Coauthors:   Senators  
Anderson   and Knight   ) 

                        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
  2, 4, or 6  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   16 
months, or 2 or 3 years.
   By increasing the punishment for a crime, this bill would impose a
state-mandated local program.
   (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   The  bill would
 also  make it either a felony, punishable by
imprisonment in the state prison for  3, 5, or 7 
 2, 4, or 6  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 matter portrays sexual sadism or sexual masochism
involving a minor  , as defined  .
   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  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.
   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.
  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   two, four, or six  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.
  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   two, four,
or six  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   two, four, or six  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 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. 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.