Bill Text: CA SB663 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Local government: redevelopment: revenues from property tax override rates.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Engrossed - Dead) 2014-08-14 - Set, second hearing. Held under submission. [SB663 Detail]
Download: California-2013-SB663-Amended.html
Bill Title: Local government: redevelopment: revenues from property tax override rates.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Engrossed - Dead) 2014-08-14 - Set, second hearing. Held under submission. [SB663 Detail]
Download: California-2013-SB663-Amended.html
BILL NUMBER: SB 663 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 6, 2014
AMENDED IN SENATE APRIL 2, 2013
INTRODUCED BY Senator Lara
FEBRUARY 22, 2013
An act to add Section 1385 to the Evidence Code, and
to amend Sections 261, 286, 288, 288a, 289,
1048.1, 1048.1 and 1050 of, and to add Section
13519.06 to, the Penal Code, relating to crime.
LEGISLATIVE COUNSEL'S DIGEST
SB 663, as amended, Lara. Sexual assault: victims with
intellectual and developmental disabilities. Crimes:
persons with developmental and intellectual disabilities.
(1) Existing law proscribes various types of sexual assault,
including the crime of rape perpetrated against a person other than
the spouse of the perpetrator. Rape perpetrated against a person
other than the spouse of the perpetrator is punishable by
imprisonment in the state prison for 3, 6, or 8 years. Existing law
defines rape of a person other than the spouse of the perpetrator to
include circumstances in which the person is incapable of giving
consent because of a developmental disability.
Existing law also specifically proscribes crimes committed
against elder and dependent adults. Existing law defines, for
purposes of these provisions, a "dependent adult" to mean any person
who is between 18 and 64 years of age, who has physical or mental
limitations which restrict his or her ability to carry out normal
activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities.
The bill would revise the definition of certain sex offenses,
including rape, sodomy, and oral copulation, to apply if the victim
is developmentally disabled, as defined, and either (A) the person
lacks the legal mental capacity, as defined, to give consent when
compared to a reasonable person who does not have a developmental
disability and this fact is known or reasonably should be known to
the person committing the act, or (B) the defendant is a caretaker,
as defined, or a care provider, as defined. By revising the
definitions of existing crimes, the bill would impose a
state-mandated local program.
(2) Existing law governs the admissibility of evidence in civil
and criminal proceedings. Existing law, the hearsay rule, generally
excludes from evidence a statement that was made other than by a
witness while testifying at a hearing if that statement is offered to
prove the truth of the matter stated.
This bill would create an exception to the hearsay rule for
certain out-of-court statements made by a person with a developmental
disability (A) if the declarant is a victim of a crime, (B) if the
statements describe a specified sex offense performed with, by, on,
or in the presence of the declarant, (C) if the statements describe
any act of child abuse to which the declarant was subjected or which
the declarant witnessed, or (D) if the statements describe a
specified sex offense or an act of domestic violence, and specified
other criteria are met.
(3)
(1) Existing law also governs criminal
procedure. Among other provisions, existing law requires
that, in scheduling a trial date at an arraignment in superior court
involving any of specified offenses, including sexual assault,
reasonable efforts be made to avoid setting that trial, when that
case is assigned to a particular prosecuting attorney, on the same
day that another case is set for trial involving the same prosecuting
attorney. Existing law also requires that continuances be granted
only upon a showing of good cause and defines good cause to include
specified cases, including cases of sexual abuse, sexual assault, and
domestic violence.
This bill would make those provisions applicable to a case
involving a crime against a person with a developmental disability.
(4)
(2) Existing law also directs the
Commission on Peace Officer Standards and Training to establish
minimum standards relating to the training of law enforcement
officers and establishes standards that are specifically applicable
in specific types of cases, including domestic violence and the
handling of persons with developmental disabilities or mental
illness.
The bill would require the Commission on Peace Officer Standards
and Training to develop, and periodically update as
necessary, a model general order or other formal policy for crime
victims with developmental disabilities, as specified. The bill would
require each law enforcement agency to adopt and implement the model
policy, as specified, within one year of the date when the
commission adopts the model policy. By imposing new duties and a
higher level of service on law enforcement agencies, the bill would
impose a state-mandated local program ,
upon the next regularly scheduled review of a training module
relating to persons with disabilities, to create and make available
on DVD and to distribute electronically a course on the steps that
may be taken in developing a training course regarding the
investigation of crimes against or involving individuals with
developmental disabilities, intellectual disabilities, cognitive
impairments, and communication impairments, as specified .
The bill would also express the intent of the Legislature in
enacting this provision to address the problem of
sexual violence against people with intellectual and various
developmental disabilities and set forth related findings and
declarations encourage the establishment of crime
investigation units in law enforcement agencies throughout the state
specializing in investigating crimes against or involving individuals
with developmental disabilities, intellectual disabilities,
cognitive impairments, and communication impairments, including, but
not limited to, investigating crimes involving the sexual
exploitation and sexual abuse of developmentally disabled children
and adults .
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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and
declares all of the following:
(1) Throughout society sexual violence against people with
intellectual and various developmental disabilities, including
persons residing in institutions, is a grave problem. The violent
criminals who commit these acts typically go unpunished and remain
free to continue committing these crimes, while the victims rarely
get the support and assistance they need and deserve.
(2) Researchers have noted that over the past decade, crimes
against people with developmental disabilities have reached epidemic
levels. This problem has reached epidemic levels, yet has been
ignored, and the criminal justice system has failed to address this
public health problem adequately.
(3) The epidemic is increasing, and will likely continue to
increase, with the aging of the developmental disability population,
and the explosive rate of increase of individuals with autism and
fetal alcohol syndrome disorder.
(4) In enacting Section 13519.06 of the Penal Code, it is the
intent of the Legislature to develop and implement training programs
similar to the training currently provided to law enforcement
employees for handling cases involving domestic violence and other
serious crimes, for law enforcement employees handling cases
involving sexual violence against persons with developmental
disabilities.
(b) By the enactment of this act, it is the intent of the
Legislature to take serious action to begin to remedy these outrages.
SEC. 2. Section 1385 is added to the Evidence
Code, to read:
1385. (a) Evidence of a statement by a person with a
developmental disability is not made inadmissible by the hearsay rule
if offered in a criminal or juvenile proceeding in which the person
is alleged to have been a victim of a crime and the conditions of
subdivision (e) are satisfied.
(b) Evidence of a statement by a person with a developmental
disability that describes all or part of an offense described in
Section 261, 286, 288, 288a, or 289 of the Penal Code performed with,
by, on, or in the presence of the declarant, is not made
inadmissible by the hearsay rule if offered in a criminal, juvenile,
or civil proceeding and the conditions of subdivision (e) are
satisfied.
(c) Evidence of a statement by a person with a developmental
disability that describes any act of child abuse, including, but not
limited to, the crimes described in Section 273a, 273ab, or 273d of
the Penal Code, to which the declarant was subjected or which the
declarant witnessed, is not made inadmissible by the hearsay rule if
offered in a criminal, juvenile, or civil proceeding in which a child
is alleged to be a victim of child abuse or the subject of a
proceeding alleging that a child is within the jurisdiction of the
juvenile court on the basis of abuse or neglect, pursuant to Section
300 of the Welfare and Institutions Code, and the conditions of
subdivision (e) are satisfied.
(d) Evidence of a statement by a person with a developmental
disability, that describes all or part of any offense described in
Section 261, 286, 288, 288a, or 289 of the Penal Code, or that
describes an act of domestic violence, is not made inadmissible by
the hearsay rule if offered in a criminal, juvenile, or civil
proceeding and the conditions of subdivision (e) are satisfied.
(e) The exceptions to the hearsay rule described in subdivisions
(a) to (d), inclusive, of this section shall apply only if the court
finds in a hearing conducted outside the presence of the jury that
the time, content, and circumstances of the statement provide
sufficient safeguards of reliability and either of the following
apply:
(1) The statement is a nontestimonial statement.
(2) One of the following applies:
(A) The declarant testifies at the proceeding.
(B) If the declarant is unavailable to testify, the defendant has
had an opportunity to cross-examine the declarant in a previous
proceeding and there is corroborative evidence of the act that is the
subject of the statement.
(f) If a statement described in this section is admitted into
evidence, the court shall instruct the jury in the final written
instructions that during the proceeding the jury heard evidence
regarding a person's statement, and it is for the jury to determine
the weight and credit to be given to that statement, and, in making
that determination, the jury shall consider the nature of the
statement, the circumstances under which the statement was made, and
any other relevant factor.
(g) The proponent of the statement shall give the adverse party
reasonable notice of his or her intention to offer the statement and
the particulars of the statement.
(h) For purposes of this section, a "developmental disability"
means an intellectual disability that originates before an individual
attains 18 years of age, continues, or can be expected to continue,
indefinitely, and constitutes a substantial intellectual disability
for that individual. This term shall include mental retardation,
cerebral palsy, epilepsy, and autism if the condition severely
impairs the cognitive abilities of the individual. This term shall
also include disabling conditions found to be closely related to
mental retardation or to require treatment similar to that required
for individuals with mental retardation, but shall not include other
disabling conditions that are solely physical in nature.
SEC. 3. Section 261 of the Penal Code is
amended to read:
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) If the person is incapable of giving legal consent and he or
she is a person described in subparagraph (A) or (B). 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, the facts specified
in subparagraph (A) or (B). For purposes of this paragraph, a person
is incapable of giving legal consent if he or she:
(A) Has a mental disorder or physical disability, the mental
disorder or physical disability rendered the alleged victim incapable
of giving legal consent, and these facts are known or reasonably
should be known to the person committing the act.
(B) Has a developmental disability and either of the following
applies:
(i) The person lacks the legal capacity to give consent when
compared to a reasonable person who does not have a developmental
disability and this fact is known or reasonably should be known to
the person committing the act. For purposes of this clause, a court
shall determine whether a person lacks the legal capacity to give
consent pursuant to Part 17 (commencing with Section 810) of Division
2 of the Probate Code.
(ii) The defendant is either of the following:
(I) A caretaker, as defined in Section 288.
(II) A care provider, meaning a person who provides assistance
with the activities of daily living, including any person that
directly or indirectly owns, administers, or operates a developmental
center, a community care facility as defined in Sections 1502 and
1504 of the Health and Safety Code, or a health facility, as defined
in Section 1250 of the Health and Safety Code, and includes all
agents, employees, and contractors of the care provider who are
responsible for providing care to clients.
(2) If 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) If 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) If 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 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) If a person submits under the belief that the person
committing the act is the victim's spouse, and this belief is induced
by any artifice, pretense, or concealment practiced by the accused,
with intent to induce the belief.
(6) If 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) If 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.
(b) As used in this section, the following definitions apply:
(1) "Developmental disability" has the same meaning as found in
subdivision (h) of Section 1385 of the Evidence Code.
(2) "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.
(3) "Menace" means any threat, declaration, or act which shows an
intention to inflict an injury upon another.
SEC. 4. Section 286 of the Penal Code is
amended to read:
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) 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:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(4) 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.
(g) Except as provided in subdivision (h), if a person commits an
act of sodomy, and the victim is at the time incapable of giving
legal consent and is described in paragraph (1) or (2), the person
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, the
facts specified in paragraph (1) or (2). For purposes of this
paragraph, a victim is incapable of giving legal consent if he or
she:
(1) Is incapable of giving legal consent because of a mental
disorder or physical disability and this fact is known or reasonably
should be known to the person committing the act.
(2) Has a developmental disability and either of the following
applies:
(A) The person lacks the legal mental capacity to give consent
when compared to a reasonable person who does not have a
developmental disability and this fact is known or reasonably should
be known to the person committing the act. For purposes of this
subparagraph, a court shall determine whether a person lacks the
legal capacity to give consent pursuant to Part 17 (commencing with
Section 810) of Division 2 of the Probate Code.
(B) The defendant is either of the following:
(i) A caretaker.
(ii) A care provider.
(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 the
victim's spouse, 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) 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.
( l ) 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.
(m) As used in this section, the following definitions apply:
(1) A "care provider" means a person who provides assistance with
the activities of daily living, including any person who directly or
indirectly owns, administers, or operates a developmental center, a
community care facility, as defined in Sections 1502 and 1504 of the
Health and Safety Code, or a health facility, as defined in Section
1250 of the Health and Safety Code, and all agents, employees, and
contractors of the care provider who are responsible for providing
care to clients.
(2) A "caretaker" has the same meaning as set forth in Section
288.
(3) "Developmental disability" has the same meaning as found in
subdivision (h) of Section 1385 of the Evidence Code.
(4) As used in subdivision (k), "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.
(5) 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.
SEC. 5. Section 288 of the Penal Code is
amended to read:
288. (a) Except as provided in subdivision (i), any person who
willfully and lewdly commits any lewd or lascivious act, including
any of the acts constituting other crimes provided for in Part 1,
upon or with the body, or any part or member thereof, of a child who
is under 14 years of age, with the intent of arousing, appealing to,
or gratifying the lust, passions, or sexual desires of that person or
the child, is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight years.
(b) (1) Any person who commits an act described in subdivision (a)
by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for 5, 8, or 10 years.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person, including a person with a
developmental disability, as defined in subdivision (d), by use of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person, with the intent
described in subdivision (a), is guilty of a felony and shall be
punished by imprisonment in the state prison for 5, 8, or 10 years.
(c) (1) Any person who commits an act described in subdivision (a)
with the intent described in that subdivision, and the victim is a
child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent person, including a person with a
developmental disability, as defined in subdivision (d), with the
intent described in
subdivision (a), is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year.
(d) (1) In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim, person with a developmental
disability, or other dependent person and shall do whatever is
necessary, within existing budgetary resources, and constitutionally
permissible to prevent psychological harm to the child victim or to
prevent psychological harm to the person with a developmental
disability or other dependent person victim resulting from
participation in the court process.
(2) For purposes of this subdivision, "developmental disability"
has the same meaning as found in subdivision (h) of Section 1385 of
the Evidence Code.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime.
Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs pursuant to
Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elder or dependent persons:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent persons and
postsecondary educational institutions that serve dependent persons
or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that provides
health services or social services to elder or dependent persons,
including, but not limited to, in-home supportive services, as
defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent person" means any person who has a physical or
mental impairment that substantially restricts his or her ability to
carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or
developmental disabilities or whose physical or mental abilities have
significantly diminished because of age. "Dependent person" includes
any person who is admitted as an inpatient to a 24-hour health
facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working at
these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph (2)
of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
person under care.
(i) (1) Any person convicted of a violation of subdivision (a)
shall be imprisoned in the state prison for life with the possibility
of parole if the defendant personally inflicted bodily harm upon the
victim.
(2) The penalty provided in this subdivision shall only apply if
the fact that the defendant personally inflicted bodily harm upon the
victim is pled and proved.
(3) As used in this subdivision, "bodily harm" means any
substantial physical injury resulting from the use of force that is
more than the force necessary to commit the offense.
SEC. 6. Section 288a of the Penal Code is
amended to read:
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 the age of
21 years 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 (1) 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 (2) 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 (3) where the victim is at
the time incapable of giving legal consent as described in
subparagraph (A) or (B), 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), the facts specified in
subparagraph (A) or (B). For purposes of this paragraph, a victim is
incapable of giving legal consent if he or she:
(A) Has a mental disorder or physical disability, the mental
disorder or physical disability rendered the alleged victim incapable
of giving legal consent, and these facts are known or reasonably
should be known to the person committing the act.
(B) Has a developmental disability and either of the following
applies:
(i) The person lacks the legal mental capacity to give consent
when compared to a reasonable person who does not have a
developmental disability and this fact is known or reasonably should
be known to the person committing the act. For purposes of this
clause, a court shall determine whether a person lacks the legal
capacity to give consent pursuant to Part 17 (commencing with Section
810) of Division 2 of the Probate Code.
(ii) The defendant is either of the following:
(I) A caretaker, as defined in Section 288.
(II) A care provider.
(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) 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:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(4) 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.
(g) Except as provided in subdivision (h), if any person commits
an act of oral copulation, and the victim is at the time incapable of
giving legal consent as described in paragraph (1) or (2), the
person who commits 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, the facts specified
in paragraph (1) or (2). For purposes of this subdivision, a victim
is incapable of giving legal consent if he or she:
(1) Is incapable of giving legal consent because of a mental
disorder or physical disability and this fact is known or reasonably
should be known to the person committing the act.
(2) Has a developmental disability and either of the following
applies:
(A) The person lacks the legal mental capacity to give consent
when compared to a reasonable person who does not have a
developmental disability and this fact is known or reasonably should
be known to the person committing the act. For purposes of this
paragraph, a court shall determine whether a person lacks the legal
capacity to give consent pursuant to Part 17 (commencing with Section
810) of Division 2 of the Probate Code.
(B) The defendant is either of the following:
(i) A caretaker.
(ii) A care provider.
(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
the victim's spouse, 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) 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.
( l ) 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.
(m) As used in this section, the following definitions apply:
(1) A "care provider" means a person who provides assistance with
the activities of daily living, including any person who directly or
indirectly owns, administers, or operates a developmental center, a
community care facility, as defined in Sections 1502 and 1504 of the
Health and Safety Code, or a health facility, as defined in Section
1250 of the Health and Safety Code, and all agents, employees, and
contractors of the care provider who are responsible for providing
care to clients.
(2) A "caretaker" has the same meaning as set forth in Section
288.
(3) "Developmental disability" has the same meaning as found in
subdivision (h) of Section 1385 of the Evidence Code.
(4) As used in subdivision (k), "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.
(5) 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.
SEC. 7. Section 289 of the Penal Code is
amended to read:
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), if a person commits an
act of sexual penetration, and the victim is at the time incapable of
giving legal consent, and the victim is a person described in
paragraph (1) or (2), the person committing the act 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 the facts described in paragraph (1) or (2):
(1) The victim is incapable of giving legal consent because of a
mental disorder or physical disability and this fact is known or
reasonably should be known to the person committing the act.
(2) The victim has a developmental disability and either of the
following applies:
(A) The victim lacks the legal mental capacity to give consent
when compared to a reasonable person who does not have a
developmental disability and this fact is known or reasonably should
be known to the person committing the act. For purposes of this
paragraph, a court shall determine whether a person lacks the legal
capacity to give consent pursuant to Part 17 (commencing with Section
810) of Division 2 of the Probate Code.
(B) The person defendant is either of the following:
(i) A caretaker as defined in Section 288.
(ii) A care provider.
(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) 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:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
(4) 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.
(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 the victim's spouse, 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) 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.
As 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 the county jail for a period of not more than one year.
(i) Except as provided in Section 288, any person over the age of
21 years 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) A "care provider" means a person who provides assistance with
the activities of daily living, including any person who directly or
indirectly owns, administers, or operates a developmental center, a
community care facility, as defined in Sections 1502 and 1504 of the
Health and Safety Code, or a health facility, as defined in Section
1250 of the Health and Safety Code, and all agents, employees, and
contractors of the care provider who are responsible for providing
care to clients.
(2) "Developmental disability" has the same meaning as found in
subdivision (h) of Section 1385 of the Evidence Code.
(3) "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.
(4) "Foreign object, substance, instrument, or device" shall
include any part of the body, except a sexual organ.
(5) "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.
SEC. 8. SECTION 1. Section 1048.1 of
the Penal Code is amended to read:
1048.1. (a) In scheduling a trial date at an arraignment in
superior court involving any of the following offenses, reasonable
efforts shall be made to avoid setting that trial, when that case is
assigned to a particular prosecuting attorney, on the same day that
another case is set for trial involving the same prosecuting
attorney:
(1) Murder, as defined in subdivision (a) of Section 187.
(2) An alleged sexual assault offense, as described in
subdivisions (a) and (b) of Section 11165.1.
(3) Alleged child abuse offense, as described in Section 11165.6.
(4) A case being handled in the Career Criminal Prosecution
Program pursuant to Sections 999b to 999h, inclusive.
(5) A case involving an allegation of a crime committed against a
person with a developmental disability.
(b) For purposes of this section, a "developmental disability" has
the same meaning as found in subdivision (h) of Section 1385 of the
Evidence Code.
SEC. 9. SEC. 2. Section 1050 of the
Penal Code is amended to read:
1050. (a) The welfare of the people of the State of California
requires that all proceedings in criminal cases shall be set for
trial and heard and determined at the earliest possible time. To this
end, the Legislature finds that the criminal courts are becoming
increasingly congested with resulting adverse consequences to the
welfare of the people and the defendant. Excessive continuances
contribute substantially to this congestion and cause substantial
hardship to victims and other witnesses. Continuances also lead to
longer periods of presentence confinement for those defendants in
custody and the concomitant overcrowding and increased expenses of
local jails. It is therefore recognized that the people, the
defendant, and the victims and other witnesses have the right to an
expeditious disposition, and to that end it shall be the duty of all
courts and judicial officers and of all counsel, both for the
prosecution and the defense, to expedite these proceedings to the
greatest degree that is consistent with the ends of justice. In
accordance with this policy, criminal cases shall be given precedence
over, and set for trial and heard without regard to the pendency of,
any civil matters or proceedings. In further accordance with this
policy, death penalty cases in which both the prosecution and the
defense have informed the court that they are prepared to proceed to
trial shall be given precedence over, and set for trial and heard
without regard to the pendency of, other criminal cases and any civil
matters or proceedings, unless the court finds in the interest of
justice that it is not appropriate.
(b) To continue any hearing in a criminal proceeding, including
the trial, (1) a written notice shall be filed and served on all
parties to the proceeding at least two court days before the hearing
sought to be continued, together with affidavits or declarations
detailing specific facts showing that a continuance is necessary and
(2) within two court days of learning that he or she has a conflict
in the scheduling of any court hearing, including a trial, an
attorney shall notify the calendar clerk of each court involved, in
writing, indicating which hearing was set first. A party shall not be
deemed to have been served within the meaning of this section until
that party actually has received a copy of the documents to be
served, unless the party, after receiving actual notice of the
request for continuance, waives the right to have the documents
served in a timely manner. Regardless of the proponent of the motion,
the prosecuting attorney shall notify the people's witnesses and the
defense attorney shall notify the defense's witnesses of the notice
of motion, the date of the hearing, and the witnesses' right to be
heard by the court.
(c) Notwithstanding subdivision (b), a party may make a motion for
a continuance without complying with the requirements of that
subdivision. However, unless the moving party shows good cause for
the failure to comply with those requirements, the court may impose
sanctions as provided in Section 1050.5.
(d) When a party makes a motion for a continuance without
complying with the requirements of subdivision (b), the court shall
hold a hearing on whether there is good cause for the failure to
comply with those requirements. At the conclusion of the hearing, the
court shall make a finding whether good cause has been shown and, if
it finds that there is good cause, shall state on the record the
facts proved that justify its finding. A statement of the finding and
a statement of facts proved shall be entered in the minutes. If the
moving party is unable to show good cause for the failure to give
notice, the motion for continuance shall not be granted.
(e) Continuances shall be granted only upon a showing of good
cause. Neither the convenience of the parties nor a stipulation of
the parties is in and of itself good cause.
(f) At the conclusion of the motion for continuance, the court
shall make a finding whether good cause has been shown and, if it
finds that there is good cause, shall state on the record the facts
proved that justify its finding. A statement of facts proved shall be
entered in the minutes.
(g) (1) When deciding whether or not good cause for a continuance
has been shown, the court shall consider the general convenience and
prior commitments of all witnesses, including peace officers. Both
the general convenience and prior commitments of each witness also
shall be considered in selecting a continuance date if the motion is
granted. The facts as to inconvenience or prior commitments may be
offered by the witness or by a party to the case.
(2) For purposes of this section, "good cause" includes, but is
not limited to, those cases where any of the following has occurred
and the prosecuting attorney assigned to the case has another trial,
preliminary hearing, or motion to suppress in progress in that court
or another court:
(A) Murder, as defined in subdivision (a) of Section 187.
(B) Allegations that involve stalking, as defined in Section
646.9.
(C) A violation of one or more of the sections specified in
subdivision (a) of Section 11165.1 or Section 11165.6.
(D) Domestic violence as defined in Section 13700.
(E) A case being handled in the Career Criminal Prosecution
Program pursuant to Sections 999b to 999h, inclusive.
(F) A hate crime, as defined in Title 11.6 (commencing with
Section 422.6) of Part 1.
(G) A case involving a crime against a person with a developmental
disability.
(H) A continuance under this subdivision shall be limited to a
maximum of 10 additional court days.
(3) Only one continuance per case may be granted to the people
under this subdivision for cases involving stalking, hate crimes, or
cases handled under the Career Criminal Prosecution Program. Any
continuance granted to the people in a case involving stalking or
handled under the Career Criminal Prosecution Program shall be for
the shortest time possible, not to exceed 10 court days.
(h) Upon a showing that the attorney of record at the time of the
defendant's first appearance in the superior court on an indictment
or information is a Member of the Legislature of this state and that
the Legislature is in session or that a legislative interim committee
of which the attorney is a duly appointed member is meeting or is to
meet within the next seven days, the defendant shall be entitled to
a reasonable continuance not to exceed 30 days.
(i) A continuance shall be granted only for that period of time
shown to be necessary by the evidence considered at the hearing on
the motion. Whenever any continuance is granted, the court shall
state on the record the facts proved that justify the length of the
continuance, and those facts shall be entered in the minutes.
(j) Whenever it shall appear that any court may be required,
because of the condition of its calendar, to dismiss an action
pursuant to Section 1382, the court must immediately notify the Chair
of the Judicial Council.
(k) This section shall not apply when the preliminary examination
is set on a date less than 10 court days from the date of the
defendant's arraignment on the complaint, and the prosecution or the
defendant moves to continue the preliminary examination to a date not
more than 10 court days from the date of the defendant's arraignment
on the complaint.
( l ) This section is directory only and does not
mandate dismissal of an action by its terms.
(m) For purposes of this section, a "developmental disability" has
the same meaning as found in subdivision (h) of Section 1385 of the
Evidence Code.
SEC. 10. Section 13519.06 is added to the Penal
Code, to read:
13519.06. (a) The Commission on Peace Officer Standards and
Training shall develop, and periodically update as necessary, a model
general order or other formal policy for dealing with crime victims
with developmental disabilities.
(b) The purpose of the model policy shall be to ensure equal
protection of the law for people with developmental disabilities by
ensuring highly professional law enforcement that takes full account
of the unique needs of victims with developmental disabilities. To
that end, the model policy shall include all of the following:
(1) Information on the wide prevalence of crimes against people
with developmental disabilities.
(2) A statement from the agency's law enforcement executive
emphasizing the agency's high-priority commitment to providing equal
protection to meeting the special needs of victims with developmental
disabilities.
(3) The fact that victims and witnesses with developmental
disabilities can be highly credible witnesses when interviewed
appropriately and when given instructions for appropriate interview
techniques.
(4) A description of the training materials that are available,
including, but not limited to, further interview training
opportunities and the telecourse developed by the commission pursuant
to Section 13515.
(5) The definitions of a "dependent adult," as set forth in
Section 368, and "dependent person," as set forth in Section 288,
noting that they apply to people with developmental disabilities
regardless of the fact that some may live independently.
(6) The importance of enforcing provisions requiring certain
persons to report elder and dependent adult abuse and child abuse and
that prohibit interference with that reporting.
(7) A list of resources available to law enforcement agencies,
including any local resources.
(8) A general requirement that suspects in these cases be arrested
whenever there is probable cause and absent exigent circumstances,
including cases of violations of emergency protective orders,
temporary restraining orders, or similar court orders, and cases of
mandated reporters who fail to make a report as required by law.
(9) Assisting victims in pursuing criminal options, including
connecting the victim with the appropriate social service agencies
that can provide them additional support.
(10) Detailed instructions regarding the procedures for obtaining
an emergency protective order and specifying that the order may be
sought at any time, and including a space for the telephone number
for the court clerk in the appropriate court jurisdiction.
(11) Procedures to handle each report, including (A) prompt
response to all reported serious or violent crimes in progress and
cases in which serious or violent crimes may be imminent, or (B)
followup of each report to determine whether there is probable cause
for arrest or other law enforcement intervention.
(12) Procedures for seeking assistance from the Bureau of Medi-Cal
Fraud and Elder Abuse.
(13) Procedures for cooperating with county adult protective
services and child protective services and local long-term care
ombudsman programs, and stating that law enforcement agencies shall
retain responsibility for all criminal investigations, pursuant to
subdivision (b) of Section 368.5.
(14) The law enforcement agency's reporting and cross-reporting
requirements, including those pursuant to paragraph (1) of
subdivision (a) of Section 422.55 and Section 13023 of this code, and
subdivisions (b), (c), (e), and (f) of Section 15640 of the Welfare
and Institutions Code.
(15) A requirement that the law enforcement agency report to the
appropriate professional licensing, credentialing, or regulatory
agency where there is reasonable suspicion that a professional person
subject the regulatory agency's jurisdiction committed a crime
against a person with a developmental disability or failed to report,
as required, regardless of whether the law enforcement agency or a
prosecutor has pursued or intends to pursue criminal prosecution.
(16) A procedure to allow designated supervisors to develop
alternative provisions of the policy to apply in unusual individual
cases, including a requirement for written reports to the chief,
sheriff, or director of the law enforcement agency each time this
occurs.
(c) In developing the model policy, the commission shall consult
the California Police Chiefs Association, the California State
Sheriffs' Association, the California District Attorneys Association,
the Bureau of Medi-Cal Fraud and Elder Abuse, the California
Long-Term Care Ombudsman Association, the County Welfare Directors
Association, and subject-matter experts from the developmental
disability field including the State Department of Developmental
Services, regional centers, and advocacy organizations, including
those the commission consulted in developing the telecourse pursuant
to Section 13515.
(d) Within one year of the date when the commission adopts the
model policy, each law enforcement agency in this state shall adopt
and implement the model policy, including any changes consistent with
subdivision (b) that the agency deems appropriate.
SEC. 11. 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.
SEC. 3. Section 13519.06 is added to the
Penal Code , to read:
13519.06. (a) It is the intent of the Legislature in enacting
this section to encourage the establishment of crime investigation
units in law enforcement agencies throughout the state specializing
in investigating crimes against or involving individuals with
developmental disabilities, intellectual disabilities, cognitive
impairments, and communication impairments, including, but not
limited to, investigating crimes involving the sexual exploitation
and sexual abuse of developmentally disabled children and adults.
(b) The Commission on Peace Officer Standards and Training, upon
the next regularly scheduled review of a training module relating to
persons with disabilities, shall create and make available on DVD and
may distribute electronically a course on the steps that may be
taken in developing a training course regarding the investigation of
crimes against or involving individuals with developmental
disabilities, intellectual disabilities, cognitive impairments, and
communication impairments. The course regarding the development of
the training course shall be developed in consultation with
appropriate community, local, and state organizations and agencies
that have expertise in the area of developmental disabilities and
with appropriate consumer and family advocacy groups. The training
shall, at a minimum, include all of the following subjects:
(1) Statutes, ordinances, and other state and federal laws
relating to crimes involving persons with developmental disabilities,
intellectual disabilities, cognitive impairments, and communication
impairments.
(2) The prevalence, nature, and recognition of developmental
disabilities, intellectual disabilities, cognitive impairments, and
communication impairments.
(3) The incidences of crime involving persons who suffer from
developmental disabilities, intellectual disabilities, cognitive
impairments, and communication impairments.
(4) Reporting requirements and procedures for crimes involving
persons who suffer from developmental disabilities, intellectual
disabilities, cognitive impairments, and communication impairments.
(5) The unique characteristics, barriers, and challenges of
individuals with developmental disabilities, intellectual
disabilities, cognitive impairments, and communication impairments
who may be victims of abuse or exploitation, including issues
relating to capacity and consent, and specific examples of abuse and
exploitation, including incidents perpetrated by caregivers, facility
or program staff, contractors, or facilities and programs serving
individuals with developmental disabilities, intellectual
disabilities, cognitive impairments, and communication impairments.
(6) Techniques to accommodate, interview, and converse with an
individual who may require assistive devices in order to communicate
for himself or herself.
(7) Techniques for conducting investigations in which a criminal
defendant may also be a caregiver or provider of therapeutic or other
services.
(8) Procedures for minimizing the number of times individuals with
developmental disabilities, developmental disabilities, intellectual
disabilities, cognitive impairments, and communication impairments
are interviewed by law enforcement personnel.
(9) Appropriate language and communication when interacting with
people with developmental disabilities, intellectual disabilities,
cognitive impairments, and communication impairments.
(10) Community and state resources and advocacy support and
services available to serve people with developmental disabilities,
intellectual disabilities, cognitive impairments, and communication
impairments and how these resources can best be utilized by law
enforcement.
