BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1302|
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THIRD READING
Bill No: SB 1302
Author: Cogdill (R)
Amended: 4/15/08
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-0, 4/8/08
AYES: Romero, Cogdill, Cedillo, Margett, Perata
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Sentencing provisions
SOURCE : California District Attorneys Association
DIGEST : This bill makes conforming and technical changes
to various sentencing provisions, particularly sex crime
sentencing provisions.
ANALYSIS : Existing law states eligibility and program
requirements for a person who is eligible for probation for
specified sex crimes, including lewd conduct (Penal Code
288), rape (Penal Code 261), spousal rape (Penal Code
262), sodomy (Penal Code 286), oral copulation (Penal
Code 288a), and forcible sexual penetration (Penal Code
289). (Penal Code 1203.067.) These requirements
include:
1.Evaluation of defendant by a diagnostic facility of the
Department of Corrections (90 day maximum) or a similar
evaluation by the probation department.
CONTINUED
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2.Court hearing to determine if the defendant poses a
threat to the victim.
3.Psychiatric or psychological evaluation to consider
threats to the victim or the defendant's potential for
positive response to treatment.
4.Court must order defendant placed in a sex offender
treatment program, if available.
Existing law provides that any person who engages in three
or more acts of substantial sexual conduct or acts of lewd
conduct with a child under the age of 14 over a period of
at least three months' time is guilty of the felony of
continuous sexual abuse of a child, punishable by a prison
term of six, 12 or 16 years and a fine of up to $10,000.
(Penal Code 288.5.)
This bill adds continuous sexual abuse (Penal Code 288.5)
to these probation requirements and standards set out in
Penal Code section 1203.067 for specified sex crimes.
Existing law provides that persons convicted of sex crimes
committed in concert, or sex crimes committed through
force, fear, threat of future retaliation or duress cannot
receive probation. (Penal Code 1203.065, subd. (a).)
This bill adds the commission of specified sex crimes where
the victim is a child under the age of 10 years (Penal Code
288.7) to the list of sex crimes for which probation is
prohibited.
Existing law provides that a person convicted of using a
minor to model or assist in the production of child
pornography cannot receive probation. (Pen. Code
1203.065, subd. (b).) The more serious offense of using
minors in the production of child pornography for
commercial purposes is not included in the probation
prohibition. It appears that the subdivisions concerning
commercial and non-commercial versions of this child
pornography production crimes were reorganized (and
essentially reversed) in 1984, five years after the
probation prohibition was enacted.
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This bill provides that a person convicted of using a minor
to produce child pornography for commercial production, not
the non-commercial form of this crime, cannot receive
probation, but does allow persons convicted of the
non-commercial version of the crime eligible for probation.
Firearm Possession Prohibitions; Firearm and Great Bodily
Injury Enhancements
Existing law provides that a person convicted of specified
misdemeanors, including battery (Penal Code 240) may not
possess a firearm for 10 years following conviction.
(Penal Code 12021, subd. (c)(1).)
Existing decisional law holds that misdemeanor battery is a
lesser-include offense of sexual battery, meaning that a
person cannot commit sexual battery without committing
battery. (In re Keith T. (1984) 156 Cal App 3d 983, 988.)
Existing law provides that where a defendant committed a
specified sex crime, or attempted to commit such a crime,
and used a weapon, the sentencing court shall impose an
enhancement of three, four, or 10 years. Where the
defendant was armed with a weapon (had a weapon available
for use) while committing such a crime, the court shall
impose an enhancement of one, two or five years. (Penal
Code 12022.3.)
Existing law provides that where the defendant committed,
or attempted to commit, a specified sex crime, and the
victim suffered great bodily injury, the court shall impose
a five-year sentence enhancement. (Penal Code 12022.8.)
Existing decisional law held that assault with intent to
commit a sex crime (Penal Code 220) is an aggravated or
violent form of an attempt to commit a sex crime. Weapons
and great bodily injury enhancements that apply to the sex
crimes included in section 220 shall be imposed where the
defendant is convicted pursuant to section 220 with assault
with intent to commit a sex crime. (People v. Rich (2003)
109 Cal.App.4th 255, 261.)
This bill formally adds assault with intent to commit a sex
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crime (Penal Code 220) to the statutory list of crimes
for which enhancements are imposed for infliction of great
bodily injury, weapon use and being armed with a weapon.
Existing law requires most sex offenders to register with
law enforcement. (Penal Code 290.) Offenders convicted
of specified offenses are listed on an Internet database
accessible by the public (Penal Code 290.46)
This bill adds murder with intent to commit a specified sex
crime (rape, lewd conduct, oral copulation or sexual
penetration) to the Internet sex offender database.
Prior Legislation
SB 172 (Alquist), Chapter 579, Statutes of 2007 . Passed
the Senate on 9/12/07 with a vote of 39-0.
SB 1128 (Alquist), Chapter 337, Statutes of 2007 . Passed
the Senate on 8/31/06 with a vote of 40-0.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 4/28/08)
California District Attorneys Association (source)
ARGUMENTS IN SUPPORT : According to the sponsor, this
bill is necessary for the following reasons:
"First, Penal Code (PC) section 288.5 describes the crime
of continuous sexual abuse of a child. PC section 1203.067
describes the probation criteria for specified felony
offenders. Specifically, PC section 1203.067 requires that
before probation may be granted to a particular felony
offender, the court shall order the defendant to be
psychologically evaluated.
"Under current law, PC section 288.5 is not listed
under PC section 1203.067. It is inconsistent and
illogical to exclude PC section 288.5, a crime
requiring multiple acts, from the requirements of PC
section 1203.067 when PC section 288, an arguably
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lesser offense that can result from a single act, does
fall under the PC section 1203.067 criteria. Adding
PC section 288.5 to PC section 1203.067 would help
ensure that defendants convicted under the continuous
sexual abuse of a child statute are not held to less
stringent probation standards than those convicted of
a single lewd and lascivious act.
"Likewise, PC section 1203.065(a) is the statute that
mandates denial of probation for many serious sex
crimes. This statute does not include PC 288.7, one
of the most serious sex crimes involving young
children. PC 288.7, enacted in 2006, provides for
terms of 15 or 25 years to life for adults who engage
in sexual intercourse, sodomy, oral copulation, or
sexual penetration with children who are 10 years of
age or younger (Stats. 2006, c. 337 (SB 1128)).
Although this new offense needed to be added by
cross-reference to numerous existing statutes, such as
PC 1203.065(a), this was not done by SB 1128, in large
part because Proposition 83 was on the November 2006
ballot and it also amended many of these same existing
statutes. The crime of PC 288.7 must now be added to
PC 1203.065(a) so that a defendant charged with and
convicted of that crime will be ineligible for
probation. This amendment will reflect the
Legislature's policy choice of denying probation to
predators who commit serious sexual offenses against
young children.
"In addition, there is an outdated cross-reference in
PC section 1203.065(a). The reference to subdivision
(c) of PC section 311.4 should be to subdivision (b)
of PC section 311.4. The Legislature added the
offense of PC 311.4(c) and included this offense in PC
1203.065 in 1981. Later (1984), the Legislature
amended and renumbered this offense (using a minor to
pose or model for pictures involving sexual conduct
for commercial purposes) to subdivision (b). The
current subdivision (c) involves the arguably lesser
offense that includes similar conduct for
non-commercial purposes. The cross-references must be
corrected.
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"Third, PC section 12021(c)(1) prohibits persons
convicted of enumerated misdemeanors from owning,
purchasing, receiving, or possessing a firearm. The
list of misdemeanors fails to include misdemeanor
violations of PC 243.4 (sexual battery). As a result
of this apparent oversight, persons convicted of
misdemeanor sexual battery are not prohibited from
owning a firearm, while persons convicted of simple
battery are so prohibited. This bill would make it
unlawful for a person convicted of sexual battery to
own or possess firearms. The rationale for this is
simple; defendants who commit sexual battery should be
prohibited from owning, purchasing, possessing, or
receiving a firearm in the same manner that defendants
convicted of other misdemeanors, especially simple
battery, are so prohibited.
"Fourth, PC section 220 describes the crime of assault
with intent to commit a sexual offense. PC sections
12022.3 and 12022.8 are the enhancement statutes for
sex crimes involving deadly weapons or great bodily
injury. Existing law provides enhanced penalties for
certain sex crimes, including both completed and
attempted offenses, involving weapons or resulting in
great bodily injury upon a victim. This bill conforms
statutory law to case law by adding PC section 220 to
the list of applicable offenses under PC sections
12022.3 and 12022.8. Since these enhancement statutes
already apply to sexual offenses under PC section 220,
explicitly adding PC section 220 to theses statutes
will not create or expand the application of any
enhancement provision beyond what is already provided
under existing law. Expressly adding to these
statutes what case law already provides is good public
policy because it will clarify their application in
order to avoid any future misunderstanding and
litigation involving this issue.
"Fifth, PC section 290.46 describes the PC section 290
registrant information that the Department of Justice
(DOJ) is required to make available to the public via
an internet website (Megan's Law website). PC section
290.46(b) specifies the applicable offenses and
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offenders requiring disclosure on the Megan's Law
website. In particular, PC section 290.46(b)(2) lists
offenses and offenders requiring full address
disclosure. Murder with intent to commit designated
sex crimes was added as a registrable PC section 290
offense; however, it was not added to the list of
offenses listed in PC section 290.46(b)(2) requiring
full address disclosure on the Megan's Law website.
As a result, currently, such an offense is a "no post"
on the public website. This bill would remedy this
oversight by adding murder with intent to commit
designated sex crimes to PC section 290.46(b)(2)."
RJG:cm 4/28/08 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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