Bill Text: CA AB1821 | 2015-2016 | Regular Session | Introduced
Bill Title: Sex offenses: disabled victims.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-11-30 - From committee without further action. [AB1821 Detail]
Download: California-2015-AB1821-Introduced.html
BILL NUMBER: AB 1821 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Maienschein
FEBRUARY 8, 2016
An act to amend Sections 667.61 and 667.9 of the Penal Code,
relating to sex offenses.
LEGISLATIVE COUNSEL'S DIGEST
AB 1821, as introduced, Maienschein. Sex offenses: disabled
victims.
(1) Existing law, as amended by Proposition 83, the Sexual
Predator Punishment and Control Act (Jessica's Law), approved by the
voters at the November 7, 2006, statewide general election, makes a
defendant subject to imprisonment in the state prison for 25 years to
life if convicted of certain crimes, including rape, sexual
penetration, sodomy, oral copulation, continuous sexual abuse of a
child, or rape, spousal rape, or sexual penetration in concert, if
certain circumstances were present, including, among other things, in
the commission of that offense, any person kidnapped the victim,
tortured the victim, or committed the offense during the commission
of a burglary, as specified. Existing law also makes a defendant
subject to imprisonment in the state prison for 15 years to life if
convicted of certain crimes, including rape, sexual penetration,
sodomy, oral copulation, continuous sexual abuse of a child, or rape,
spousal rape, or sexual penetration in concert, if certain
circumstances were present, including, among other things, in the
commission of that offense any person, except as specified in the
provisions above, kidnapped the victim, committed the offense during
the commission of a burglary, or used a dangerous or deadly weapon in
the commission of the offense. Proposition 83 provides that the
Legislature may amend the provisions of the act to expand the scope
of their application or increase the punishment or penalties by a
statute passed by a majority vote of each house of the Legislature.
This bill would add the crimes of rape, sexual penetration,
sodomy, and oral copulation, perpetrated against a person who is
incapable, because of a mental disorder or developmental or physical
disability, of giving legal consent, to the above provisions, if the
victim is developmentally disabled, as defined. By applying the above
enhancements to these crimes, this bill would impose a
state-mandated local program.
(2) Existing law makes a defendant subject to imprisonment in the
state prison for 25 years to life if convicted of certain crimes,
including rape, spousal rape or sexual penetration in concert, sexual
penetration, sodomy, or oral copulation if certain circumstances
were present, including, among other things, in the commission of
that offense, any person kidnapped the victim, committed the offense
during the commission of a burglary, or used a dangerous or deadly
weapon in the commission of the offense, or under other specified
circumstances, and the crime was committed against a minor 14 years
of age or older.
This bill would add the crimes of rape, sexual penetration,
sodomy, and oral copulation, perpetrated against a person who is
incapable, because of a mental disorder or developmental or physical
disability, of giving legal consent, to the above provisions, if the
victim is developmentally disabled, as defined. By applying the above
enhancements to these crimes, this bill would impose a
state-mandated local program.
(3) Existing law requires that a person who commits certain
enumerated crimes, including rape, sodomy, oral copulation, and
sexual penetration, against a person who is 65 years of age or older,
or against a person who is blind, deaf, developmentally disabled, a
paraplegic, or a quadriplegic, or against a person who is under 14
years of age, receive a one-year sentence enhancement and requires
that any person having a prior conviction for any of the enumerated
offenses receive a 2-year sentence enhancement.
This bill would add to the enumerated list of crimes rape, sodomy,
oral copulation, and sexual penetration, perpetrated against a
person who is incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent. By
applying the above enhancements to these crimes, this bill would
impose a state-mandated local program.
(4) 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 667.61 of the Penal Code is amended to read:
667.61. (a) Except as provided in subdivision (j), (l), or (m),
any person who is convicted of an offense specified in subdivision
(c) under one or more of the circumstances specified in subdivision
(d) or under two or more of the circumstances specified in
subdivision (e) shall be punished by imprisonment in the state prison
for 25 years to life.
(b) Except as provided in subdivision (a), (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one of the circumstances specified in subdivision (e) shall be
punished by imprisonment in the state prison for 15 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(8) Lewd or lascivious act, in violation of subdivision (a) of
Section 288.
(9) Continuous sexual abuse of a child,
child in violation of Section 288.5.
(10) Rape, in violation of paragraph (1) of subdivision (a) of
Section 261, if the victim was "developmentally disabled," as defined
in subdivision (d) of Section 667.9, and that fact is alleged in the
accusatory pleading and either admitted by the defendant in open
court or found to be true by the trier of fact.
(11) Sexual penetration, in violation of subdivision (b) of
Section 289, if the victim was "developmentally disabled," as defined
in subdivision (d) of Section 667.9, and that fact is alleged in the
accusatory pleading and either admitted by the defendant in open
court or found to be true by the trier of fact.
(12) Sodomy, in violation of subdivision (g) of Section 286, if
the victim was "developmentally disabled," as defined in subdivision
(d) of Section 667.9, and that fact is alleged in the accusatory
pleading and either admitted by the defendant in open court or found
to be true by the trier of fact.
(13) Oral copulation, in violation of subdivision (g) of Section
288a, if the victim was "developmentally disabled," as defined in
subdivision (d) of Section 667.9, and that fact is alleged in the
accusatory pleading and either admitted by the defendant in open
court or found to be true by the trier of fact.
(d) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c).
(2) The defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily inherent
in the underlying offense in subdivision (c).
(3) The defendant inflicted aggravated mayhem or torture on the
victim or another person in the commission of the present offense in
violation of Section 205 or 206.
(4) The defendant committed the present offense during the
commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460, with intent to commit an offense
specified in subdivision (c).
(5) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (2), (3), or (4) of this
subdivision.
(6) The defendant personally inflicted great bodily injury on the
victim or another person in the commission of the present offense in
violation of Section 12022.53, 12022.7, or 12022.8.
(7) The defendant personally inflicted bodily harm on the victim
who was under 14 years of age.
(e) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) Except as provided in paragraph (2) of subdivision (d), the
defendant kidnapped the victim of the present offense in violation of
Section 207, 209, or 209.5.
(2) Except as provided in paragraph (4) of subdivision (d), the
defendant committed the present offense during the commission of a
burglary in violation of Section 459.
(3) The defendant personally used a dangerous or deadly weapon or
a firearm in the commission of the present offense in violation of
Section 12022, 12022.3, 12022.5, or 12022.53.
(4) The defendant has been convicted in the present case or cases
of committing an offense specified in subdivision (c) against more
than one victim.
(5) The defendant engaged in the tying or binding of the victim or
another person in the commission of the present offense.
(6) The defendant administered a controlled substance to the
victim in the commission of the present offense in violation of
Section 12022.75.
(7) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (1), (2), (3), (5), or (6)
of this subdivision or paragraph (6) of subdivision (d).
(f) If only the minimum number of circumstances specified in
subdivision (d) or (e) that are required for the punishment provided
in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
proved, that circumstance or those circumstances shall be used as
the basis for imposing the term provided in subdivision (a), (b),
(j), (l), or (m) whichever is greater, rather than being used to
impose the punishment authorized under any other provision of law,
unless another provision of law provides for a greater penalty or the
punishment under another provision of law can be imposed in addition
to the punishment provided by this section. However, if any
additional circumstance or circumstances specified in subdivision (d)
or (e) have been pled and proved, the minimum number of
circumstances shall be used as the basis for imposing the term
provided in subdivision (a), (j), or (l) and any other additional
circumstance or circumstances shall be used to impose any punishment
or enhancement authorized under any other provision of law.
(g) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any of the circumstances specified in subdivision (d) or (e) for any
person who is subject to punishment under this section.
(h) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under this
section.
(i) For any offense specified in paragraphs (1) to (7), inclusive,
of subdivision (c), or in paragraphs (1) to (6), inclusive, of
subdivision (n), the court shall impose a consecutive sentence for
each offense that results in a conviction under this section if the
crimes involve separate victims or involve the same victim on
separate occasions , as defined in subdivision (d) of
Section 667.6.
(j) (1) Any person who is convicted of an offense specified in
subdivision (c), with the exception of a violation of subdivision (a)
of Section 288, upon a victim who is a child under 14 years of age
under one or more of the circumstances specified in subdivision (d)
or under two or more of the circumstances specified in subdivision
(e), shall be punished by imprisonment in the state prison for life
without the possibility of parole. Where the person was under 18
years of age at the time of the offense, the person shall be punished
by imprisonment in the state prison for 25 years to life.
(2) Any person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of age,
shall be punished by imprisonment in the state prison for 25 years to
life.
(k) As used in this section, "bodily harm" means any substantial
physical injury resulting from the use of force that is more than the
force necessary to commit an offense specified in subdivision (c).
(l) Any person who is convicted of an offense specified in
subdivision (n) under one or more of the circumstances specified in
subdivision (d) or under two or more of the circumstances specified
in subdivision (e), upon a victim who is a minor
minor, 14 years of age or older
older, shall be punished by imprisonment in the state prison
for life without the possibility of parole. If the person who was
convicted was under 18 years of age at the time of the offense, he or
she shall be punished by imprisonment in the state prison for 25
years to life.
(m) Any person who is convicted of an offense specified in
subdivision (n) under one of the circumstances specified in
subdivision (e) against a minor minor,
14 years of age or older older, shall
be punished by imprisonment in the state prison for 25 years to life.
(n) Subdivisions (l) and (m) shall apply to any of the following
offenses:
(1) Rape, in violation of paragraph (2) of subdivision (a) of
Section 261.
(2) Spousal rape, in violation of paragraph (1) of subdivision (a)
of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sexual penetration, in violation of paragraph (1) of
subdivision (a) of Section 289.
(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
Section 286, or in violation of subdivision (d) of Section 286.
(6) Oral copulation, in violation of paragraph (2) of subdivision
(c) of Section 288a, or in violation of subdivision (d) of Section
288a.
(7) Rape, in violation of paragraph (1) of subdivision (a) of
Section 261, if the victim was "developmentally disabled," as defined
in subdivision (d) of Section 667.9, and that fact is alleged in the
accusatory pleading and either admitted by the defendant in open
court or found to be true by the trier of fact.
(8) Sexual penetration, in violation of subdivision (b) of Section
289, if the victim was "developmentally disabled," as defined in
subdivision (d) of Section 667.9, and that fact is alleged in the
accusatory pleading and either admitted by the defendant in open
court or found to be true by the trier of fact.
(9) Sodomy, in violation of subdivision (g) of Section 286, if the
victim was "developmentally disabled," as defined in subdivision (d)
of Section 667.9, and that fact is alleged in the accusatory
pleading and either admitted by the defendant in open court or found
to be true by the trier of fact.
(10) Oral copulation, in violation of subdivision (g) of Section
288a, if the victim was "developmentally disabled," as defined in
subdivision (d) of Section 667.9, and that fact is alleged in the
accusatory pleading and either admitted by the defendant in open
court or found to be true by the trier of fact.
(o) The penalties provided in this section shall apply only if the
existence of any circumstance specified in subdivision (d) or (e) is
alleged in the accusatory pleading pursuant to this section, and is
either admitted by the defendant in open court or found to be true by
the trier of fact.
SEC. 2. Section 667.9 of the Penal Code is amended to read:
667.9. (a) Any person who commits one or more of the crimes
specified in subdivision (c) against a person who is 65 years of age
or older, or against a person who is blind, deaf, developmentally
disabled, a paraplegic, or a quadriplegic, or against a person who is
under the age of 14 years, and that disability or condition is known
or reasonably should be known to the person committing the crime,
shall receive a one-year enhancement for each violation.
(b) Any person who commits a violation of subdivision (a) and who
has a prior conviction for any of the offenses specified in
subdivision (c), shall receive a two-year enhancement for each
violation in addition to the sentence provided under Section 667.
(c) Subdivisions (a) and (b) apply to the following crimes:
(1) Mayhem, in violation of Section 203 or 205.
(2) Kidnapping, in violation of Section 207, 209, or 209.5.
(3) Robbery, in violation of Section 211.
(4) Carjacking, in violation of Section 215.
(5) Rape, in violation of paragraph (2)
(1), (2), or (6) of subdivision (a) of Section 261.
(6) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(7) Rape, spousal rape, or sexual penetration in concert, in
violation of Section 264.1.
(8) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), (d) or (g), of
Section 286.
(9) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), (d) or
(g), of Section 288a.
(10) Sexual penetration, in violation of subdivision (a) or
(b) of Section 289.
(11) Burglary of the first degree, as defined in Section 460, in
violation of Section 459.
(d) As used in this section, "developmentally disabled" means a
severe, chronic disability of a person, which is all of the
following:
(1) Attributable to a mental or physical impairment or a
combination of mental and physical impairments.
(2) Likely to continue indefinitely.
(3) Results in substantial functional limitation in three or more
of the following areas of life activity:
(A) Self-care.
(B) Receptive and expressive language.
(C) Learning.
(D) Mobility.
(E) Self-direction.
(F) Capacity for independent living.
(G) Economic self-sufficiency.
SEC. 3. 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.
