Amended in Assembly March 25, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 860

Introduced by Assembly Member Daly

February 26, 2015

An act to amend begin delete Section 422.55 of the Penal Code, relating to hate crimes. end delete begin insert Sections 243.4, 261, 286, 288a, and 289 of the Penal Code, relating to sex crimes. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 860, as amended, Daly. begin delete Hate crimes: political affiliation. end delete begin insert Sex crimes: professional services. end insert

begin insert

Under existing law, a person is guilty of sexual battery, punishable by imprisonment in a county jail or in the state prison for 2, 3, or 4 years, if he or she touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, while the victim is unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose.

end insert begin insert

This bill would expand the crime of sexual battery to apply to a person who performs professional services that entail having access to another person’s body, who touches an intimate part of the that person’s body while performing those services and the touching was against the person’s will and for the purpose of sexual arousal, sexual gratification, or sexual abuse. The bill would make the crime punishable by imprisonment in the state prison for 2, 3, or 4 years, and by a fine not exceeding $10,000. By expanding the scope of a crime and increasing the punishment for a crime, this bill would impose a state-mandated local program.

end insert begin insert

Existing law defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under any of several circumstances. Existing law also defines the crimes of sodomy, oral copulation, and sexual penetration.

end insert begin insert

This bill would expand the definitions of each of those crimes to include when any of those acts are performed against a victim’s will by a professional whose services entail having access to the victim’s body, if the conduct is performed by the professional while performing those services. By expanding the scope of crimes, the bill would impose a state-mandated local program.

end insert begin insert

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.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert begin delete

Existing law defines “hate crime” as a criminal act committed, in whole or in part, because of actual or perceived characteristics of the victim, including, among other things, race, religion, disability, and sexual orientation. Under existing law, that definition applies unless an explicit provision of law or the context clearly requires a different meaning. Existing law provides punishments for hate crimes that range from misdemeanors with specified penalties to felonies with additional terms of one to 3 years in state prison, depending on the underlying criminal act and other circumstances. Existing law requires, with conditions, the Attorney General to direct local law enforcement agencies to report specified information relative to hate crimes to the Department of Justice. Existing law requires the department to annually submit a report to the Legislature that analyzes the results of information obtained from local law enforcement pursuant to these provisions. Local law enforcement entities are required by existing law to provide a brochure on hate crimes to victims of these crimes and to the public, and the Department of Fair Employment and Housing is required by existing law to revise those brochures as needed and to provide those brochures to local law enforcement agencies upon request.

end delete begin delete

This bill would add political affiliation to the list of actual or perceived characteristics necessary to determine whether a criminal act qualifies as a hate crime. By expanding the scope of an existing crime, this bill would impose a state-mandated local program. By expanding the information that local law enforcement agencies are required to report to the Department of Justice, this bill would impose a state-mandated local program.

end delete begin delete

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.

end delete begin delete

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

end delete begin delete

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 243.4 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

243.4.  

(a) Any person who touches an intimate part of another
person while that person is unlawfully restrained by the accused
or an accomplice, and if the touching is against the will of the
person touched and is for the purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of sexual battery. A violation
of this subdivision is punishable by imprisonment in a county jail
for not more than one year, and by a fine not exceeding two
thousand dollars ($2,000); or by imprisonment in the state prison
for two, three, or four years, and by a fine not exceeding ten
thousand dollars ($10,000).

(b) Any person who touches an intimate part of another person
who is institutionalized for medical treatment and who is seriously
disabled or medically incapacitated, if the touching is against the
will of the person touched, and if the touching is for the purpose
of sexual arousal, sexual gratification, or sexual abuse, is guilty
of sexual battery. A violation of this subdivision is punishable by
imprisonment in a county jail for not more than one year, and by
a fine not exceeding two thousand dollars ($2,000); or by
imprisonment in the state prison for two, three, or four years, and
by a fine not exceeding ten thousand dollars ($10,000).

(c) Any person who touches an intimate part of another person
for the purpose of sexual arousal, sexual gratification, or sexual
abuse, and the victim is at the time unconscious of the nature of
the act because the perpetrator fraudulently represented that the
touching served a professional purpose, is guilty of sexual battery.
A violation of this subdivision is punishable by imprisonment in
a county jail for not more than one year, and by a fine not
exceeding two thousand dollars ($2,000); or by imprisonment in
the state prison for two, three, or four years, and by a fine not
exceeding ten thousand dollars ($10,000).

(d) Any person who, for the purpose of sexual arousal, sexual
gratification, or sexual abuse, causes another, against that person’s
will while that person is unlawfully restrained either by the accused
or an accomplice, or is institutionalized for medical treatment and
is seriously disabled or medically incapacitated, to masturbate or
touch an intimate part of either of those persons or a third person,
is guilty of sexual battery. A violation of this subdivision is
punishable by imprisonment in a county jail for not more than one
year, and by a fine not exceeding two thousand dollars ($2,000);
or by imprisonment in the state prison for two, three, or four years,
and by a fine not exceeding ten thousand dollars ($10,000).

begin insert

(e) Any person who performs professional services that entail
having access to another person’s body, who touches an intimate
part of that person while performing those services, and the
touching is against the will of the person touched and for the
specific purpose of sexual arousal, sexual gratification, or sexual
abuse, is guilty of sexual battery. A violation of this subdivision is
punishable by imprisonment in the state prison for two, three, or
four years, and by a fine not exceeding ten thousand dollars
($10,000).

end insert begin delete

(e)

end delete

begin insert (f) end insert  (1) Any person who touches an intimate part of another
person, if the touching is against the will of the person touched,
and is for the specific purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of misdemeanor sexual
battery, punishable by a fine not exceeding two thousand dollars
($2,000), or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. However, if the
defendant was an employer and the victim was an employee of
the defendant, the misdemeanor sexual battery shall be punishable
by a fine not exceeding three thousand dollars ($3,000), by
imprisonment in a county jail not exceeding six months, or by both
that fine and imprisonment. Notwithstanding any other provision
of law, any amount of a fine above two thousand dollars ($2,000)
which is collected from a defendant for a violation of this
subdivision shall be transmitted to the State Treasury and, upon
appropriation by the Legislature, distributed to the Department of
Fair Employment and Housing for the purpose of enforcement of
the California Fair Employment and Housing Act (Part 2.8
(commencing with Section 12900) of Division 3 of Title 2 of the
Government Code), including, but not limited to, laws that
proscribe sexual harassment in places of employment. However,
in no event shall an amount over two thousand dollars ($2,000)
be transmitted to the State Treasury until all fines, including any
restitution fines that may have been imposed upon the defendant,
have been paid in full.

(2) As used in this subdivision, “touches” means physical contact
with another person, whether accomplished directly, through the
clothing of the person committing the offense, or through the
clothing of the victim.

begin delete

(f)

end delete

begin insert (g) end insert  As used in subdivisions (a), (b), (c), begin delete and (d), end delete begin insert (d), and (e), end insert
“touches” means physical contact with the skin of another person
whether accomplished directly or through the clothing of the person
committing the offense.

begin delete

(g)

end delete

begin insert (h) end insert  As used in this section, the following terms have the
following meanings:

(1) “Intimate part” means the sexual organ, anus, groin, or
buttocks of any person, and the breast of a female.

(2) “Sexual battery” does not include the crimes defined in
Section 261 or 289.

(3) “Seriously disabled” means a person with severe physical
or sensory disabilities.

(4) “Medically incapacitated” means a person who is
incapacitated as a result of prescribed sedatives, anesthesia, or
other medication.

(5) “Institutionalized” means a person who is located voluntarily
or involuntarily in a hospital, medical treatment facility, nursing
home, acute care facility, or mental hospital.

(6) “Minor” means a person under 18 years of age.

begin delete

(h)

end delete

begin insert (i) end insert  This section begin delete shall not be construed to end delete begin insert does not end insert limit or prevent
prosecution under any other law which also proscribes a course
of conduct that also is proscribed by this section.

begin delete

(i)

end delete

begin insert (j) end insert  In the case of a felony conviction for a violation of this
section, the fact that the defendant was an employer and the victim
was an employee of the defendant shall be a factor in aggravation
in sentencing.

begin delete

(j)

end delete

begin insert (k) end insert  A person who commits a violation of subdivision (a), (b),
(c), or (d) against a minor when the person has a prior felony
conviction for a violation of this section shall be guilty of a felony,
punishable by imprisonment in the state prison for two, three, or
four years and a fine not exceeding ten thousand dollars ($10,000).

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 261 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

261.  

(a) Rape is an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator, under any of the
following circumstances:

(1) Where a person is incapable, because of a mental disorder
or developmental or physical disability, of giving legal consent,
and this is known or reasonably should be known to the person
committing the act. Notwithstanding the existence of a
conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving consent.

(2) Where it is accomplished against a person’s will by means
of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person or another.

(3) Where a person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled substance,
and this condition was known, or reasonably should have been
known by the accused.

(4) Where a person is at the time unconscious of the nature of
the act, and this is known to the accused. As used in this paragraph,
“unconscious of the nature of the act” means incapable of resisting
because the victim meets any one of the following conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the
act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

(D) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.

(5) Where a person submits under the belief that the person
committing the act is someone known to the victim other than the
accused, and this belief is induced by any artifice, pretense, or
concealment practiced by the accused, with intent to induce the
belief.

(6) Where the act is accomplished against the victim’s will by
threatening to retaliate in the future against the victim or any other
person, and there is a reasonable possibility that the perpetrator
will execute the threat. As used in this paragraph, “threatening to
retaliate” means a threat to kidnap or falsely imprison, or to inflict
extreme pain, serious bodily injury, or death.

(7) Where the act is accomplished against the victim’s will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, “public official” means a person employed by
a governmental agency who has the authority, as part of that
position, to incarcerate, arrest, or deport another. The perpetrator
does not actually have to be a public official.

begin insert

(8) Where the act is accomplished against the victim’s will by
a person while that person is performing professional services
that entail having access to the victim’s body.

end insert

(b) As used in this section, “duress” means a direct or implied
threat of force, violence, danger, or retribution sufficient to coerce
a reasonable person of ordinary susceptibilities to perform an act
which otherwise would not have been performed, or acquiesce in
an act to which one otherwise would not have submitted. The total
circumstances, including the age of the victim, and his or her
relationship to the defendant, are factors to consider in appraising
the existence of duress.

(c) As used in this section, “menace” means any threat,
declaration, or act which shows an intention to inflict an injury
upon another.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 286 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

286.  

(a) Sodomy is sexual conduct consisting of contact
between the penis of one person and the anus of another person.
Any sexual penetration, however slight, is sufficient to complete
the crime of sodomy.

(b) (1) Except as provided in Section 288, any person who
participates in an act of sodomy with another person who is under
18 years of age shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.

(2) Except as provided in Section 288, any person over 21 years
of age who participates in an act of sodomy with another person
who is under 16 years of age shall be guilty of a felony.

(c) (1) Any person who participates in an act of sodomy with
another person who is under 14 years of age and more than 10
years younger than he or she shall be punished by imprisonment
in the state prison for three, six, or eight years.

(2) (A) Any person who commits an act of sodomy when the
act is accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by
imprisonment in the state prison for three, six, or eight years.

(B) Any person who commits an act of sodomy with another
person who is under 14 years of age when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person shall be punished by imprisonment in the
state prison for 9, 11, or 13 years.

(C) Any person who commits an act of sodomy with another
person who is a minor 14 years of age or older when the act is
accomplished against the victim’s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury
on the victim or another person shall be punished by imprisonment
in the state prison for 7, 9, or 11 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(3) Any person who commits an act of sodomy where the act
is accomplished against the victim’s will by threatening to retaliate
in the future against the victim or any other person, and there is a
reasonable possibility that the perpetrator will execute the threat,
shall be punished by imprisonment in the state prison for three,
six, or eight years.

(d) (1) Any person who, while voluntarily acting in concert
with another person, either personally or aiding and abetting that
other person, commits an act of sodomy when the act is
accomplished against the victim’s will by means of force or fear
of immediate and unlawful bodily injury on the victim or another
person or where the act is accomplished against the victim’s will
by threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the
perpetrator will execute the threat, shall be punished by
imprisonment in the state prison for five, seven, or nine years.

(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is under 14
years of age, when the act is accomplished against the victim’s
will by means of force or fear of immediate and unlawful bodily
injury on the victim or another person, shall be punished by
imprisonment in the state prison for 10, 12, or 14 years.

(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of sodomy upon a victim who is a minor
14 years of age or older, when the act is accomplished against the
victim’s will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished
by imprisonment in the state prison for 7, 9, or 11 years.

(4) This subdivision does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(e) Any person who participates in an act of sodomy with any
person of any age while confined in any state prison, as defined
in Section 4504, or in any local detention facility, as defined in
Section 6031.4, shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.

(f)  begin insert (1) end insert begin insert   end insert Any person who commits an act of sodomy, and the
victim is at the time unconscious of the nature of the act and this
is known to the person committing the act, shall be punished by
imprisonment in the state prison for three, six, or eight years. As
used in this subdivision, “unconscious of the nature of the act”
means incapable of resisting because the victim meets one of the
following conditions:

begin delete

(1)

end delete

begin insert (A) end insert  Was unconscious or asleep.

begin delete

(2)

end delete

begin insert (B) end insert  Was not aware, knowing, perceiving, or cognizant that the
act occurred.

begin delete

(3)

end delete

begin insert (C) end insert  Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

begin delete

(4)

end delete

begin insert (D) end insert  Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.

begin insert

(2) A person who performs professional services that entail
having access to the victim’s body, who commits an act of sodomy
upon the victim while performing those services, and the act is
against the victim’s will, shall be punished by imprisonment in the
state prison for three, six, or eight years.

end insert

(g) Except as provided in subdivision (h), a person who commits
an act of sodomy, and the victim is at the time incapable, because
of a mental disorder or developmental or physical disability, of
giving legal consent, and this is known or reasonably should be
known to the person committing the act, shall be punished by
imprisonment in the state prison for three, six, or eight years.
Notwithstanding the existence of a conservatorship pursuant to
the Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving consent.

(h) Any person who commits an act of sodomy, and the victim
is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person
committing the act, and both the defendant and the victim are at
the time confined in a state hospital for the care and treatment of
the mentally disordered or in any other public or private facility
for the care and treatment of the mentally disordered approved by
a county mental health director, shall be punished by imprisonment
in the state prison, or in a county jail for not more than one year.
Notwithstanding the existence of a conservatorship pursuant to
the Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving legal consent.

(i) Any person who commits an act of sodomy, where the victim
is prevented from resisting by an intoxicating or anesthetic
substance, or any controlled substance, and this condition was
known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for three,
six, or eight years.

(j) Any person who commits an act of sodomy, where the victim
submits under the belief that the person committing the act is
someone known to the victim other than the accused, and this
belief is induced by any artifice, pretense, or concealment practiced
by the accused, with intent to induce the belief, shall be punished
by imprisonment in the state prison for three, six, or eight years.

(k)  begin insert (1) end insert begin insert   end insert Any person who commits an act of sodomy, where the
act is accomplished against the victim’s will by threatening to use
the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by
imprisonment in the state prison for three, six, or eight years.

begin delete

As

end delete

begin insert (2) end insert begin insert   end insert begin insert As end insert used in this subdivision, “public official” means a person
employed by a governmental agency who has the authority, as part
of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.

(l) As used in subdivisions (c) and (d), “threatening to retaliate”
means a threat to kidnap or falsely imprison, or inflict extreme
pain, serious bodily injury, or death.

(m) In addition to any punishment imposed under this section,
the judge may assess a fine not to exceed seventy dollars ($70)
against any person who violates this section, with the proceeds of
this fine to be used in accordance with Section 1463.23. The court,
however, shall take into consideration the defendant’s ability to
pay, and no defendant shall be denied probation because of his or
her inability to pay the fine permitted under this subdivision.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 288a of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

288a.  

(a) Oral copulation is the act of copulating the mouth
of one person with the sexual organ or anus of another person.

(b) (1) Except as provided in Section 288, any person who
participates in an act of oral copulation with another person who
is under 18 years of age shall be punished by imprisonment in the
state prison, or in a county jail for a period of not more than one
year.

(2) Except as provided in Section 288, any person over 21 years
of age who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.

(c) (1) Any person who participates in an act of oral copulation
with another person who is under 14 years of age and more than
10 years younger than he or she shall be punished by imprisonment
in the state prison for three, six, or eight years.

(2) (A) Any person who commits an act of oral copulation when
the act is accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by
imprisonment in the state prison for three, six, or eight years.

(B) Any person who commits an act of oral copulation upon a
person who is under 14 years of age, when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in
the state prison for 8, 10, or 12 years.

(C) Any person who commits an act of oral copulation upon a
minor who is 14 years of age or older, when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in
the state prison for 6, 8, or 10 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(3) Any person who commits an act of oral copulation where
the act is accomplished against the victim’s will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison
for three, six, or eight years.

(d) (1) Any person who, while voluntarily acting in concert
with another person, either personally or by aiding and abetting
that other person, commits an act of oral copulation (A) when the
act is accomplished against the victim’s will by means of force or
fear of immediate and unlawful bodily injury on the victim or
another person, or (B) where the act is accomplished against the
victim’s will by threatening to retaliate in the future against the
victim or any other person, and there is a reasonable possibility
that the perpetrator will execute the threat, or (C) where the victim
is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person
committing the act, shall be punished by imprisonment in the state
prison for five, seven, or nine years. Notwithstanding the
appointment of a conservator with respect to the victim pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime described under paragraph (3), that a mental
disorder or developmental or physical disability rendered the
alleged victim incapable of giving legal consent.

(2) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is
under 14 years of age, when the act is accomplished against the
victim’s will by means of force or fear of immediate and unlawful
bodily injury on the victim or another person, shall be punished
by imprisonment in the state prison for 10, 12, or 14 years.

(3) Any person who, while voluntarily acting in concert with
another person, either personally or aiding and abetting that other
person, commits an act of oral copulation upon a victim who is a
minor 14 years of age or older, when the act is accomplished
against the victim’s will by means of force or fear of immediate
and unlawful bodily injury on the victim or another person, shall
be punished by imprisonment in the state prison for 8, 10, or 12
years.

(4) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(e) Any person who participates in an act of oral copulation
while confined in any state prison, as defined in Section 4504 or
in any local detention facility as defined in Section 6031.4, shall
be punished by imprisonment in the state prison, or in a county
jail for a period of not more than one year.

(f)  begin insert (1) end insert begin insert   end insert Any person who commits an act of oral copulation, and
the victim is at the time unconscious of the nature of the act and
this is known to the person committing the act, shall be punished
by imprisonment in the state prison for a period of three, six, or
eight years. As used in this subdivision, “unconscious of the nature
of the act” means incapable of resisting because the victim meets
one of the following conditions:

begin delete

(1)

end delete

begin insert (A) end insert  Was unconscious or asleep.

begin delete

(2)

end delete

begin insert (B) end insert  Was not aware, knowing, perceiving, or cognizant that the
act occurred.

begin delete

(3)

end delete

begin insert (C) end insert  Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

begin delete

(4)

end delete

begin insert (D) end insert  Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the oral copulation served a professional purpose
when it served no professional purpose.

begin insert

(2) A person who performs professional services that entail
having access to the victim’s body, who commits an act of oral
copulation upon the victim while performing those services, and
the act is against the victim’s will, shall be punished by
imprisonment in the state prison for three, six, or eight years.

end insert

(g) Except as provided in subdivision (h), any person who
commits an act of oral copulation, and the victim is at the time
incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act,
shall be punished by imprisonment in the state prison, for three,
six, or eight years. Notwithstanding the existence of a
conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that
a mental disorder or developmental or physical disability rendered
the alleged victim incapable of giving consent.

(h) Any person who commits an act of oral copulation, and the
victim is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person
committing the act, and both the defendant and the victim are at
the time confined in a state hospital for the care and treatment of
the mentally disordered or in any other public or private facility
for the care and treatment of the mentally disordered approved by
a county mental health director, shall be punished by imprisonment
in the state prison, or in a county jail for a period of not more than
one year. Notwithstanding the existence of a conservatorship
pursuant to the provisions of the Lanterman-Petris-Short Act (Part
1 (commencing with Section 5000) of Division 5 of the Welfare
and Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.

(i) Any person who commits an act of oral copulation, where
the victim is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this condition
was known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for a period
of three, six, or eight years.

(j) Any person who commits an act of oral copulation, where
the victim submits under the belief that the person committing the
act is someone known to the victim other than the accused, and
this belief is induced by any artifice, pretense, or concealment
practiced by the accused, with intent to induce the belief, shall be
punished by imprisonment in the state prison for a period of three,
six, or eight years.

(k)  begin insert (1) end insert begin insert   end insert Any person who commits an act of oral copulation,
where the act is accomplished against the victim’s will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official, shall be
punished by imprisonment in the state prison for a period of three,
six, or eight years.

begin delete

As

end delete

begin insert (2) end insert begin insert   end insert begin insert As end insert used in this subdivision, “public official” means a person
employed by a governmental agency who has the authority, as part
of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.

(l) As used in subdivisions (c) and (d), “threatening to retaliate”
means a threat to kidnap or falsely imprison, or to inflict extreme
pain, serious bodily injury, or death.

(m) In addition to any punishment imposed under this section,
the judge may assess a fine not to exceed seventy dollars ($70)
against any person who violates this section, with the proceeds of
this fine to be used in accordance with Section 1463.23. The court
shall, however, take into consideration the defendant’s ability to
pay, and no defendant shall be denied probation because of his or
her inability to pay the fine permitted under this subdivision.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 289 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

289.  

(a) (1) (A) Any person who commits an act of sexual
penetration when the act is accomplished against the victim’s will
by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person shall
be punished by imprisonment in the state prison for three, six, or
eight years.

(B) Any person who commits an act of sexual penetration upon
a child who is under 14 years of age, when the act is accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person, shall be punished by imprisonment in
the state prison for 8, 10, or 12 years.

(C) Any person who commits an act of sexual penetration upon
a minor who is 14 years of age or older, when the act is
accomplished against the victim’s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury
on the victim or another person, shall be punished by imprisonment
in the state prison for 6, 8, or 10 years.

(D) This paragraph does not preclude prosecution under Section
269, Section 288.7, or any other provision of law.

(2) Any person who commits an act of sexual penetration when
the act is accomplished against the victim’s will by threatening to
retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute
the threat, shall be punished by imprisonment in the state prison
for three, six, or eight years.

(b) Except as provided in subdivision (c), any person who
commits an act of sexual penetration, and the victim is at the time
incapable, because of a mental disorder or developmental or
physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act or
causing the act to be committed, shall be punished by imprisonment
in the state prison for three, six, or eight years. Notwithstanding
the appointment of a conservator with respect to the victim pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.

(c) Any person who commits an act of sexual penetration, and
the victim is at the time incapable, because of a mental disorder
or developmental or physical disability, of giving legal consent,
and this is known or reasonably should be known to the person
committing the act or causing the act to be committed and both
the defendant and the victim are at the time confined in a state
hospital for the care and treatment of the mentally disordered or
in any other public or private facility for the care and treatment of
the mentally disordered approved by a county mental health
director, shall be punished by imprisonment in the state prison, or
in a county jail for a period of not more than one year.
Notwithstanding the existence of a conservatorship pursuant to
the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving
legal consent.

(d)  begin insert (1) end insert begin insert   end insert Any person who commits an act of sexual penetration,
and the victim is at the time unconscious of the nature of the act
and this is known to the person committing the act or causing the
act to be committed, shall be punished by imprisonment in the
state prison for three, six, or eight years. As used in this
subdivision, “unconscious of the nature of the act” means incapable
of resisting because the victim meets one of the following
conditions:

begin delete

(1)

end delete

begin insert (A) end insert  Was unconscious or asleep.

begin delete

(2)

end delete

begin insert (B) end insert  Was not aware, knowing, perceiving, or cognizant that the
act occurred.

begin delete

(3)

end delete

begin insert (C) end insert  Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraud in
fact.

begin delete

(4)

end delete

begin insert (D) end insert  Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator’s fraudulent
representation that the sexual penetration served a professional
purpose when it served no professional purpose.

begin insert

(2) A person who performs professional services that entail
having access to the victim’s body, who commits an act of sexual
penetration upon the victim while performing those services, and
the act is against the victim’s will, shall be punished by
imprisonment in the state prison for three, six, or eight years.

end insert

(e) Any person who commits an act of sexual penetration when
the victim is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this condition
was known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for a period
of three, six, or eight years.

(f) Any person who commits an act of sexual penetration when
the victim submits under the belief that the person committing the
act or causing the act to be committed is someone known to the
victim other than the accused, and this belief is induced by any
artifice, pretense, or concealment practiced by the accused, with
intent to induce the belief, shall be punished by imprisonment in
the state prison for a period of three, six, or eight years.

(g)  begin insert (1) end insert begin insert   end insert Any person who commits an act of sexual penetration
when the act is accomplished against the victim’s will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official, shall be
punished by imprisonment in the state prison for a period of three,
six, or eight years.

begin delete

As

end delete

begin insert (2) end insert begin insert   end insert begin insert As end insert used in this subdivision, “public official” means a person
employed by a governmental agency who has the authority, as part
of that position, to incarcerate, arrest, or deport another. The
perpetrator does not actually have to be a public official.

(h) Except as provided in Section 288, any person who
participates in an act of sexual penetration with another person
who is under 18 years of age shall be punished by imprisonment
in the state prison or in a county jail for a period of not more than
one year.

(i) Except as provided in Section 288, any person over 21 years
of age who participates in an act of sexual penetration with another
person who is under 16 years of age shall be guilty of a felony.

(j) Any person who participates in an act of sexual penetration
with another person who is under 14 years of age and who is more
than 10 years younger than he or she shall be punished by
imprisonment in the state prison for three, six, or eight years.

(k) As used in this section:

(1) “Sexual penetration” is the act of causing the penetration,
however slight, of the genital or anal opening of any person or
causing another person to so penetrate the defendant’s or another
person’s genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument,
or device, or by any unknown object.

(2) “Foreign object, substance, instrument, or device” shall
include any part of the body, except a sexual organ.

(3) “Unknown object” shall include any foreign object,
substance, instrument, or device, or any part of the body, including
a penis, when it is not known whether penetration was by a penis
or by a foreign object, substance, instrument, or device, or by any
other part of the body.

(l) As used in subdivision (a), “threatening to retaliate” means
a threat to kidnap or falsely imprison, or inflict extreme pain,
serious bodily injury or death.

(m) As used in this section, “victim” includes any person who
the defendant causes to penetrate the genital or anal opening of
the defendant or another person or whose genital or anal opening
is caused to be penetrated by the defendant or another person and
who otherwise qualifies as a victim under the requirements of this
section.

begin insert

begin insert SEC. 6. end insert   

end insert begin insert

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.

end insert

begin delete

SECTION 1.  

Section 422.55 of the Penal Code is amended to
read:

422.55.  

For purposes of this title, and for purposes of all other
state law unless an explicit provision of law or the context clearly
requires a different meaning, the following shall apply:

(a) “Hate crime” means a criminal act committed, in whole or
in part, because of one or more of the following actual or perceived
characteristics of the victim:

(1) Disability.

(2) Gender.

(3) Nationality.

(4) Political affiliation.

(5) Race or ethnicity.

(6) Religion.

(7) Sexual orientation.

(8) Association with a person or group with one or more of these
actual or perceived characteristics.

(b) “Hate crime” includes, but is not limited to, a violation of
Section 422.6.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, 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.

However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end delete