BILL NUMBER: SB 838 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 7, 2014
AMENDED IN SENATE APRIL 10, 2014
AMENDED IN SENATE MARCH 5, 2014
INTRODUCED BY Senator Beall
( Coauthors: Senators
Anderson and Cannella )
( Coauthor: Assembly Member
Maienschein Coauthors: Assembly
Members Garcia, Gonzalez, Gorell,
Maienschein, Quirk-Silva, and
Waldron )
JANUARY 6, 2014
An act to add Section 290.1 to the Penal Code, and to amend
Sections 676 and 707 676, 730, and 790
of the Welfare and Institutions Code, relating to juveniles.
crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 838, as amended, Beall. Juveniles.
Crimes: Sex offenses: juvenile hearings.
Existing law makes it an offense for a person to willfully
threaten to commit a crime which will result in death or great bodily
injury to another person, with the specific intent that the
statement, made verbally, in writing, or by means of an electronic
communication device, is to be taken as a threat, and causes that
person reasonably to be in fear for his or her own safety or for his
or her immediate family's safety. Existing law makes it an offense
for a person who uses a concealed camcorder, motion picture camera,
or photographic camera of any type, to secretly videotape, film,
photograph, or record by electronic means, another, identifiable
person who may be in a state of full or partial undress, for the
purpose of viewing the body of, or the undergarments worn by, that
other person, without the consent or knowledge of that other person,
in any area in which that other person has a reasonable expectation
of privacy, with the intent to invade the privacy of that other
person.
This bill would require additional penalties if a person convicted
of or adjudicated to have committed specified sex
offenses, who, with the intent to identify,
intimidate, harass, humiliate, or bully the victim, uses social
media, including, but not limited to, posting photos online or
sharing cellular telephone photos of the incident that resulted in
the conviction, or posting messages online or sharing cellular
telephone messages pertaining to the incident that resulted in the
conviction. The bill would provide for imposition of an additional
year of incarceration, or a fine not exceeding $10,000, or both, if
the sex offense conviction was for a felony, and would provide for
imposition of an additional fine not exceeding $5,000 if the sex
offense conviction was for a misdemeanor.
By creating enhancements for existing crimes, this bill would
impose a state-mandated local program.
Under existing law, as amended by Proposition 21, an initiative
statute approved by the voters at the March 7, 2000, statewide
primary election, juvenile court hearings are closed to the public,
except for juvenile court hearings alleging the commission of
specified felonies. The Legislature may amend Proposition 21 by a
statute passed in each house by a 2/3 vote.
This bill would add to that list of felonies, to which the public
may be admitted for the hearing, certain sex offenses accomplished
because the person is prevented from resisting due to being rendered
unconscious by any intoxicating, anesthetizing, or controlled
substance, or when the victim is at the time incapable, because of a
disability, of giving consent, and this is known or reasonably should
be known to the person committing the offense. The bill
would also add to that list of felonies additional specified sex
offenses and a sexual offense where the offender used social media to
identify, intimidate, harass, humiliate, or bully the victim.
Existing law provides that any person under 18 years of age who
commits a crime is within the jurisdiction of the juvenile court,
except as specified. Existing law, as amended by Proposition 21,
enumerates certain crimes for which a minor 14 years of age or older
may be prosecuted under the general law in a court of criminal
jurisdiction.
This bill would add to that list of crimes, for which a minor 14
years of age or older may be prosecuted under the general law in a
court of criminal jurisdiction, certain sex offenses accomplished
because the person is prevented from resisting due to being rendered
unconscious by any intoxicating, anesthetizing, or controlled
substance, or when the victim is at the time incapable, because of a
disability, of giving consent, and this is known or reasonably should
be known to the person committing the offense, and a sexual offense
where the offender used social media to identify, intimidate, harass,
humiliate, or bully the victim.
Existing law provides that when a minor is adjudged a ward of the
court, as specified, the court may order any of certain types of
treatment, and as an additional alternative, may commit the minor to
a juvenile home, ranch, camp, or forestry camp, or the county
juvenile hall, as specified.
This bill would require the court, when a minor is adjudged a ward
of the court for specified reasons, including, among others, the
commission of certain sex offenses accomplished because the person is
prevented from resisting due to being rendered unconscious by any
intoxicating, anesthetizing, or controlled substance, or when the
victim is at the time incapable, because of a disability, of giving
consent, and this is known or reasonably should be known to the
person committing the offense, to order the minor to out-of-home
placement for a minimum of 2 years. The bill would provide that the
placement may include commitment of the minor to a juvenile hall,
juvenile home, ranch, camp, any institution operated by the
Department of Corrections and Rehabilitation, Division of Juvenile
Facilities, or any other placement authorized by law, where the minor
would receive treatment appropriate to the circumstances of his or
her offense, including, but not limited to, sex offender treatment.
Existing law authorizes deferral of judgment for certain minors
who have committed felony offenses if specified criteria are met.
This bill would add to those criteria that the offense charged is
not rape, sodomy, oral copulation, or an act of sexual penetration,
as specified, when the victim was prevented from resisting due to
being rendered unconscious by any intoxicating, anesthetizing, or
controlled substance, or when the victim was at the time incapable,
because of mental disorder or developmental or physical disability,
of giving consent, and that was known or reasonably should have been
known to the minor at the time of the offense.
Because this bill would amend Proposition 21, it would require a
2/3 vote.
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: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as Audrie's
Law.
SEC. 2. Section 290.1 is added to the Penal Code, to read:
290.1. (a) A person convicted of or adjudicated to have
committ ed a sex offense listed in subdivision (c)
of Section 290 who, with the intent to identify,
intimidate, harass, humiliate, or bully the victim, uses social
media, including, but not limited to, posting photos online or
sharing cellular telephone photos of the incident that resulted in
the conviction or posting messages online or sharing cellular
telephone messages pertaining to the incident shall, in addition to
any other punishment imposed for that conviction, be punished by an
additional term of incarceration or additional fine pursuant to
subdivision (b).
(b) (1) If the conviction for the offense listed in subdivision
(c) of Section 290 is for a felony, the offender shall be punished by
an additional consecutive year in prison, or by a fine not exceeding
ten thousand dollars ($10,000), or by both imprisonment and that
fine.
(2) If the conviction for the offense listed in subdivision (c) of
Section 290 is for a misdemeanor, the offender shall be punished by
an additional fine not exceeding five thousand dollars ($5,000).
SEC. 3. Section 676 of the Welfare and Institutions Code is
amended to read:
676. (a) Unless requested by the minor concerning whom the
petition has been filed and any parent or guardian present, the
public shall not be admitted to a juvenile court hearing. Nothing in
this section shall preclude the attendance of up to two family
members of a prosecuting witness for the support of that witness, as
authorized by Section 868.5 of the Penal Code. The judge or referee
may nevertheless admit those persons he or she deems to have a direct
and legitimate interest in the particular case or the work of the
court. However, except as provided in subdivision (b), members of the
public shall be admitted, on the same basis as they may be admitted
to trials in a court of criminal jurisdiction, to hearings concerning
petitions filed pursuant to Section 602 alleging that a minor is a
person described in Section 602 by reason of the violation of any one
of the following offenses:
(1) Murder.
(2) Arson of an inhabited building.
(3) Robbery while armed with a dangerous or deadly weapon.
(4) Rape with force or violence, threat of great bodily harm, or
when the person is prevented from resisting due to being rendered
unconscious by any intoxicating, anesthetizing, or controlled
substance, or when the victim is at the time incapable, because of a
disability, of giving consent, and this is known or reasonably should
be known to the person committing the offense.
(5) Sodomy by force, violence, duress, menace, threat of great
bodily harm, or when the person is prevented from resisting due to
being rendered unconscious by any intoxicating, anesthetizing, or
controlled substance, or when the victim is at the time incapable,
because of a disability, of giving consent, and this is known or
reasonably should be known to the person committing the offense.
(6) Oral copulation by force, violence, duress, menace, threat of
great bodily harm, or when the person is prevented from resisting due
to being rendered unconscious by any intoxicating, anesthetizing, or
controlled substance, or when the victim is at the time incapable,
because of a disability, of giving consent, and this is known or
reasonably should be known to the person committing the offense.
(7) Any offense specified in subdivision (a) or (e) of Section 289
of the Penal Code.
(8) Kidnapping for ransom.
(9) Kidnapping for purpose of robbery.
(10) Kidnapping with bodily harm.
(11) Assault with intent to murder or attempted murder.
(12) Assault with a firearm or destructive device.
(13) Assault by any means of force likely to produce great bodily
injury.
(14) Discharge of a firearm into an inhabited dwelling or occupied
building.
(15) Any offense described in Section 1203.09 of the Penal Code.
(16) Any offense described in Section 12022.5 or 12022.53 of the
Penal Code.
(17) Any felony offense in which a minor personally used a weapon
described in any provision listed in Section 16590 of the Penal Code.
(18) Burglary of an inhabited dwelling house or trailer coach, as
defined in Section 635 of the Vehicle Code, or the inhabited portion
of any other building, if the minor previously has been adjudged a
ward of the court by reason of the commission of any offense listed
in this section, including an offense listed in this paragraph.
(19) Any felony offense described in Section 136.1 or 137 of the
Penal Code.
(20) Any offense as specified in Sections 11351, 11351.5, 11352,
11378, 11378.5, 11379, and 11379.5 of the Health and Safety Code.
(21) Criminal street gang activity which constitutes a felony
pursuant to Section 186.22 of the Penal Code.
(22) Manslaughter as specified in Section 192 of the Penal Code.
(23) Driveby shooting or discharge of a weapon from or at a motor
vehicle as specified in Sections 246, 247, and 26100 of the Penal
Code.
(24) Any crime committed with an assault weapon, as defined in
Section 30510 of the Penal Code, including possession of an assault
weapon as specified in Section 30605 of the Penal Code.
(25) Carjacking, while armed with a dangerous or deadly weapon.
(26) Kidnapping, in violation of Section 209.5 of the Penal Code.
(27) Torture, as described in Sections 206 and 206.1 of the Penal
Code.
(28) Aggravated mayhem, in violation of Section 205 of the Penal
Code.
(29) Any offense specified in subdivision (c) of Section 290.
(30) Any sex offense in which the offender uses social media,
including, but not limited to, posting online photos and messages or
sharing cellular photos or messages of the incident, to identify,
intimidate, harass, humiliate, or bully the victim.
(b) Where the petition filed alleges that the minor is a person
described in Section 602 by reason of the commission of rape with
force or violence or great bodily harm; sodomy by force, violence,
duress, menace, threat of great bodily harm, or when the person is
prevented from resisting by any intoxicating, anesthetizing, or
controlled substance, or when the victim is at the time incapable,
because of mental disorder or developmental or physical disability,
of giving consent, and this is known or reasonably should be known to
the person committing the offense; oral copulation by force,
violence, duress, menace, threat of great bodily harm, or when the
person is prevented from resisting by any intoxicating,
anesthetizing, or controlled substance, or when the victim is at the
time incapable, because of mental disorder or developmental or
physical disability, of giving consent, and this is known or
reasonably should be known to the person committing the offense; any
offense specified in Section 289 or subdivision (c) of
Section 290 of the Penal Code, or when the victim
of a sexual offense is then identified, intimidated, harassed,
humiliated, or bullied through social media, the use of smart phone
photographs, or text messaging, members of the public shall
not be admitted to the hearing in either of the following instances:
(1) Upon a motion for a closed hearing by the district attorney,
who shall make the motion if so requested by the victim.
(2) During the victim's testimony, if, at the time of the offense
the victim was under 16 years of age.
(c) The name of a minor found to have committed one of the
offenses listed in subdivision (a) shall not be confidential, unless
the court, for good cause, so orders. As used in this subdivision,
"good cause" shall be limited to protecting the personal safety of
the minor, a victim, or a member of the public. The court shall make
a written finding, on the record, explaining why good cause exists to
make the name of the minor confidential.
(d) Notwithstanding Sections 827 and 828 and subject to
subdivisions (e) and (f), when a petition is sustained for any
offense listed in subdivision (a), the charging petition, the minutes
of the proceeding, and the orders of adjudication and disposition of
the court that are contained in the court file shall be available
for public inspection. Nothing in this subdivision shall be construed
to authorize public access to any other documents in the court file.
(e) The probation officer or any party may petition the juvenile
court to prohibit disclosure to the public of any file or record. The
juvenile court shall prohibit the disclosure if it appears that the
harm to the minor, victims, witnesses, or public from the public
disclosure outweighs the benefit of public knowledge. However, the
court shall not prohibit disclosure for the benefit of the minor
unless the court makes a written finding that the reason for the
prohibition is to protect the safety of the minor.
(f) Nothing in this section shall be applied to limit the
disclosure of information as otherwise provided for by law.
(g) The juvenile court shall for each day that the court is in
session, post in a conspicuous place which is accessible to the
general public, a written list of hearings that are open to the
general public pursuant to this section, the location of those
hearings, and the time when the hearings will be held.
SEC. 4. Section 707 of the Welfare and
Institutions Code is amended to read:
707. (a) (1) In any case in which a minor is alleged to be a
person described in subdivision (a) of Section 602 by reason of the
violation, when he or she was 16 years of age or older, of any
criminal statute or ordinance except those listed in subdivision (b),
upon motion of the petitioner made prior to the attachment of
jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history of
the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence that the petitioner or the minor may wish to
submit, the juvenile court may find that the minor is not a fit and
proper subject to be dealt with under the juvenile court law if it
concludes that the minor would not be amenable to the care,
treatment, and training program available through the facilities of
the juvenile court, based upon an evaluation of the following
criteria:
(A) The degree of criminal sophistication exhibited by the minor.
(B) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court's jurisdiction.
(C) The minor's previous delinquent history.
(D) Success of previous attempts by the juvenile court to
rehabilitate the minor.
(E) The circumstances and gravity of the offense alleged in the
petition to have been committed by the minor.
A determination that the minor is not a fit and proper subject to
be dealt with under the juvenile court law may be based on any one or
a combination of the factors set forth above, which shall be recited
in the order of unfitness. In any case in which a hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness
hearing, and no plea that may have been entered already shall
constitute evidence at the hearing.
(2) (A) This paragraph shall apply to a minor alleged to be a
person described in Section 602 by reason of the violation, when he
or she has attained 16 years of age, of any felony offense when the
minor has been declared to be a ward of the court pursuant to Section
602 on one or more prior occasions if both of the following apply:
(i) The minor has previously been found to have committed two or
more felony offenses.
(ii) The offenses upon which the prior petition or petitions were
based were committed when the minor had attained 14 years of age.
(B) Upon motion of the petitioner made prior to the attachment of
jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history of
the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence that the petitioner or the minor may wish to
submit, the minor shall be presumed to be not a fit and proper
subject to be dealt with under the juvenile court law unless the
juvenile court concludes, based upon evidence, which evidence may be
of extenuating or mitigating circumstances, that the minor would be
amenable to the care, treatment, and training program available
through the facilities of the juvenile court based upon an evaluation
of the following criteria:
(i) The degree of criminal sophistication exhibited by the minor.
(ii) Whether the minor can be rehabilitated prior to the
expiration of the juvenile court's jurisdiction.
(iii) The minor's previous delinquent history.
(iv) Success of previous attempts by the juvenile court to
rehabilitate the minor.
(v) The circumstances and gravity of the offense alleged in the
petition to have been committed by the minor.
A determination that the minor is a fit and proper subject to be
dealt with under the juvenile court law shall be based on a finding
of amenability after consideration of the criteria set forth above,
and findings therefore recited in the order as to each of the above
criteria that the minor is fit and proper under each and every one of
the above criteria. In making a finding of fitness, the court may
consider extenuating and mitigating circumstances in evaluating each
of the above criteria. In any case in which the hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness
hearing and no plea which may have been entered already shall
constitute evidence at the hearing. If the minor is found to be a fit
and proper subject to be dealt with under the juvenile court law
pursuant to this subdivision, the minor shall be committed to
placement in a juvenile hall, ranch camp, forestry camp, boot camp,
or secure juvenile home pursuant to Section 730, or in any
institution operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities.
(3) If, pursuant to this subdivision, the minor is found to be not
a fit and proper subject for juvenile court treatment and is tried
in a court of criminal jurisdiction and found guilty by the trier of
fact, the judge may commit the minor to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities, in lieu of
sentencing the minor to the state prison, unless the limitations
specified in Section 1732.6 apply.
(b) Subdivision (c) shall be applicable in any case in which a
minor is alleged to be a person described in Section 602 by reason of
the violation of one of the following offenses:
(1) Murder.
(2) Arson, as provided in subdivision (a) or (b) of Section 451 of
the Penal Code.
(3) Robbery.
(4) Rape with force, violence, threat of great bodily harm, or
when the person is prevented from resisting due to being rendered
unconscious by any intoxicating, anesthetizing, or controlled
substance, or when the victim is at the time incapable, because of a
disability, of giving consent, and this is known or reasonably should
be known to the person committing the offense.
(5) Sodomy by force, violence, duress, menace, threat of great
bodily harm, or when the person is prevented from resisting due to
being rendered unconscious by any intoxicating, anesthetizing, or
controlled substance, or when the victim is at the time incapable,
because of a disability, of giving consent, and this is known or
reasonably should be known to the person committing the offense.
(6) A lewd or lascivious act as provided in subdivision (b) of
Section 288 of the Penal Code, or when the person is prevented from
resisting due to being rendered unconscious by any intoxicating,
anesthetizing, or controlled substance, or when the victim is at the
time incapable, because of a disability, of giving consent, and this
is known or reasonably should be known to the person committing the
offense.
(7) Oral copulation by force, violence, duress, menace, threat of
great bodily harm, or when the person is prevented from resisting due
to being rendered unconscious by any intoxicating, anesthetizing, or
controlled substance, or when the victim is at the time incapable,
because of a disability, of giving consent, and this is known or
reasonably should be known to the person committing the offense.
(8) An offense specified in subdivision (a) or (e) of Section 289
of the Penal Code.
(9) Kidnapping for ransom.
(10) Kidnapping for purposes of robbery.
(11) Kidnapping with bodily harm.
(12) Attempted murder.
(13) Assault with a firearm or destructive device.
(14) Assault by any means of force likely to produce great bodily
injury.
(15) Discharge of a firearm into an inhabited or occupied
building.
(16) An offense described in Section 1203.09 of the Penal Code.
(17) An offense described in Section 12022.5 or 12022.53 of the
Penal Code.
(18) A felony offense in which the minor personally used a weapon
described in any provision listed in Section 16590 of the Penal Code.
(19) A felony offense described in Section 136.1 or 137 of the
Penal Code.
(20) Manufacturing, compounding, or selling one-half ounce or more
of a salt or solution of a controlled substance specified in
subdivision (e) of Section 11055 of the Health and Safety Code.
(21) A violent felony, as defined in subdivision (c) of Section
667.5 of the Penal Code, which also would constitute a felony
violation of subdivision (b) of Section 186.22 of the Penal Code.
(22) Escape, by the use of force or violence, from a county
juvenile hall, home, ranch, camp, or forestry camp in violation of
subdivision (b) of Section 871 if great bodily injury is
intentionally inflicted upon an employee of the juvenile facility
during the commission of the escape.
(23) Torture as described in Sections 206 and 206.1 of the Penal
Code.
(24) Aggravated mayhem, as described in Section 205 of the Penal
Code.
(25) Carjacking, as described in Section 215 of the Penal Code,
while armed with a dangerous or deadly weapon.
(26) Kidnapping for purposes of sexual assault, as punishable in
subdivision (b) of Section 209 of the Penal Code.
(27) Kidnapping as punishable in Section 209.5 of the Penal Code.
(28) The offense described in subdivision (c) of Section 26100 of
the Penal Code.
(29) The offense described in Section 18745 of the Penal Code.
(30) Voluntary manslaughter, as described in subdivision (a) of
Section 192 of the Penal Code.
(31) Any sex offense in which the offender uses social media,
including, but not limited to, posting online photos and messages or
sharing cellular photos or messages of the incident, to identify,
intimidate, harass, humiliate, or bully the victim.
(c) With regard to a minor alleged to be a person described in
Section 602 by reason of the violation, when he or she was 14 years
of age or older, of any of the offenses listed in subdivision (b),
upon motion of the petitioner made prior to the attachment of
jeopardy the court shall cause the probation officer to investigate
and submit a report on the behavioral patterns and social history of
the minor being considered for a determination of unfitness.
Following submission and consideration of the report, and of any
other relevant evidence that the petitioner or the minor may wish to
submit, the minor shall be presumed to be not a fit and proper
subject to be dealt with under the juvenile court law unless the
juvenile court concludes, based upon evidence, which evidence may be
of extenuating or mitigating circumstances, that the minor would be
amenable to the care, treatment, and training program available
through the facilities of the juvenile court based upon an evaluation
of each of the following criteria:
(1) The degree of criminal sophistication exhibited by the minor.
(2) Whether the minor can be rehabilitated prior to the expiration
of the juvenile court's jurisdiction.
(3) The minor's previous delinquent history.
(4) Success of previous attempts by the juvenile court to
rehabilitate the minor.
(5) The circumstances and gravity of the offenses alleged in the
petition to have been committed by the minor.
A determination that the minor is a fit and proper subject to be
dealt with under the juvenile court law shall be based on a finding
of amenability after consideration of the criteria set forth above,
and findings therefore recited in the order as to each of the above
criteria that the minor is fit and proper under each and every one of
the above criteria. In making a finding of fitness, the court may
consider extenuating or mitigating circumstances in evaluating each
of the above criteria. In any case in which a hearing has been
noticed pursuant to this section, the court shall postpone the taking
of a plea to the petition until the conclusion of the fitness
hearing and no plea which may have been entered already shall
constitute evidence at the hearing. If, pursuant to this subdivision,
the minor is found to be not a fit and proper subject for juvenile
court treatment and is tried in a court of criminal jurisdiction and
found guilty by the trier of fact, the judge may commit the minor to
the Department of Corrections and Rehabilitation, Division of
Juvenile Facilities, in lieu of sentencing the minor to the state
prison, unless the limitations specified in Section 1732.6 apply.
(d) (1) Except as provided in subdivision (b) of Section 602, the
district attorney or other appropriate prosecuting officer may file
an accusatory pleading in a court of criminal jurisdiction against
any minor 16 years of age or older who is accused of committing an
offense enumerated in subdivision (b).
(2) Except as provided in subdivision (b) of Section 602, the
district attorney or other appropriate prosecuting officer may file
an accusatory pleading against a minor 14 years of age or older in a
court of criminal jurisdiction in any case in which any one or more
of the following circumstances apply:
(A) The minor is alleged to have committed an offense that if
committed by an adult would be punishable by death or imprisonment in
the state prison for life.
(B) The minor is alleged to have personally used a firearm during
the commission or attempted commission of a felony, as described in
Section 12022.5 or 12022.53 of the Penal Code.
(C) The minor is alleged to have committed an offense listed in
subdivision (b) in which any one or more of the following
circumstances apply:
(i) The minor has previously been found to be a person described
in Section 602 by reason of the commission of an offense listed in
subdivision (b).
(ii) The offense was committed for the benefit of, at the
direction of, or in association with any criminal street gang, as
defined in subdivision (f) of Section 186.22 of the Penal Code, with
the specific intent to promote, further, or assist in criminal
conduct by gang members.
(iii) The offense was committed for the purpose of intimidating or
interfering with any other person's free exercise or enjoyment of a
right secured to him or her by the Constitution or laws of this state
or by the Constitution or laws of the United States and because of
the other person's race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation, or because the minor
perceives that the other person has one or more of those
characteristics, as described in Title 11.6 (commencing with Section
422.55) of Part 1 of the Penal Code.
(iv) The victim of the offense was 65 years of age or older, or
blind, deaf, quadriplegic, paraplegic, developmentally disabled, or
confined to a wheelchair, and that disability was known or reasonably
should have been known to the minor at the time of the commission of
the offense.
(3) Except as provided in subdivision (b) of Section 602, the
district attorney or other appropriate prosecuting officer may file
an accusatory pleading in a court of criminal jurisdiction against
any minor 16 years of age or older who is accused of committing one
or more of the following offenses, if the minor has previously been
found to be a person described in Section 602 by reason of the
violation of a felony offense, when he or she was 14 years of age or
older:
(A) A felony offense in which it is alleged that the victim of the
offense was 65 years of age or older, or blind, deaf, quadriplegic,
paraplegic, developmentally disabled, or confined to a wheelchair,
and that disability was known or reasonably should have been known to
the minor at the time of the commission of the offense.
(B) A felony offense committed for the purposes of intimidating or
interfering with any other person's free exercise or enjoyment of a
right secured to him or her by the Constitution or laws of this state
or by the Constitution or laws of the United States and because of
the other person's race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation, or because the minor
perceived that the other person had one or more of those
characteristics, as described in Title 11.6 (commencing with Section
422.55) of Part 1 of the Penal Code.
(C) The offense was committed for the benefit of, at the direction
of, or in association with any criminal street gang as prohibited by
Section 186.22 of the Penal Code.
(4) In any case in which the district attorney or other
appropriate prosecuting officer has filed an accusatory pleading
against a minor in a court of criminal jurisdiction pursuant to this
subdivision, the case shall then proceed according to the laws
applicable to a criminal case. In conjunction with the preliminary
hearing as provided in Section 738 of the Penal Code, the magistrate
shall make a finding that reasonable cause exists to believe that the
minor comes within this subdivision. If reasonable cause is not
established, the criminal court shall transfer the case to the
juvenile court having jurisdiction over the matter.
(5) For an offense for which the prosecutor may file the
accusatory pleading in a court of criminal jurisdiction pursuant to
this subdivision, but elects instead to file a petition in the
juvenile court, if the minor is subsequently found to be a person
described in subdivision (a) of Section 602, the minor shall be
committed to placement in a juvenile hall, ranch camp, forestry camp,
boot camp, or secure juvenile home pursuant to Section 730, or in
any institution operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities.
(6) If, pursuant to this subdivision, the minor is found to be not
a fit and proper subject for juvenile court treatment and is tried
in a court of criminal jurisdiction and found guilty by the trier of
fact, the judge may commit the minor to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities, in lieu of
sentencing the minor to the state prison, unless the limitations
specified in Section 1732.6 apply.
(e) A report submitted by a probation officer pursuant to this
section regarding the behavioral patterns and social history of the
minor being considered for a determination of unfitness shall include
any written or oral statement offered by the victim, the victim's
parent or guardian if the victim is a minor, or if the victim has
died, the victim's next of kin, as authorized by subdivision (b) of
Section 656.2. Victims' statements shall be considered by the court
to the extent they are relevant to the court's determination of
unfitness.
SEC. 4. Section 730 of the Welfare and
Institutions Code is amended to read:
730. (a) When a minor is adjudged a ward of the court on the
ground that he or she is a person described by Section 602, the court
may order any of the types of treatment referred to in Section 727,
and as an additional alternative, may commit the minor to a juvenile
home, ranch, camp, or forestry camp. If there is no county juvenile
home, ranch, camp, or forestry camp within the county, the court may
commit the minor to the county juvenile hall.
(b) When a ward described in subdivision (a) is placed under the
supervision of the probation officer or committed to the care,
custody, and control of the probation officer, the court may make any
and all reasonable orders for the conduct of the ward including the
requirement that the ward go to work and earn money for the support
of his or her dependents or to effect reparation and in either case
that the ward keep an account of his or her earnings and report the
same to the probation officer and apply these earnings as directed by
the court. The court may impose and require any and all reasonable
conditions that it may determine fitting and proper to the end that
justice may be done and the reformation and rehabilitation of the
ward enhanced.
(c) When a ward described in subdivision (a) is placed under the
supervision of the probation officer or committed to the care,
custody, and control of the probation officer, and is required as a
condition of probation to participate in community service or
graffiti cleanup, the court may impose a condition that if the minor
unreasonably fails to attend or unreasonably leaves prior to
completing the assigned daily hours of community service or graffiti
cleanup, a law enforcement officer may take the minor into custody
for the purpose of returning the minor to the site of the community
service or graffiti cleanup.
(d) When a minor is adjudged a ward of the court on the ground
that he or she is a person described by Section 602 by reason of the
commission of rape, sodomy, oral copulation, or an act of sexual
penetration specified in Section 289 of the Penal Code, when the
victim was prevented from resisting due to being rendered unconscious
by any intoxicating, anesthetizing, or controlled substance, or when
the victim was at the time incapable, because of mental disorder or
developmental or physical disability, of giving consent, and that was
known or reasonably should have been known to the minor at the time
of the offense, the court shall order the minor to out-of-home
placement for a minimum of two years, which may include commitment of
the minor to a juvenile hall, juvenile home, ranch, camp, any
institution operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities, or any other
placement authorized by law, where the minor shall receive treatment
appropriate to the circumstances of his or her offense, including,
but not limited to, sex offender treatment.
SEC. 5. Section 790 of the Welfare and
Institutions Code is amended to read:
790. (a) Notwithstanding Section 654 or 654.2, or any other
provision of law, this article shall apply whenever a case is before
the juvenile court for a determination of whether a minor is a person
described in Section 602 because of the commission of a felony
offense, if all of the following circumstances apply:
(1) The minor has not previously been declared to be a ward of the
court for the commission of a felony offense.
(2) The offense charged is not one of the offenses enumerated in
subdivision (b) of Section 707.
(3) The minor has not previously been committed to the custody of
the Youth Authority. Division of Juvenile
Facilities.
(4) The minor's record does not indicate that probation has ever
been revoked without being completed.
(5) The minor is at least 14 years of age at the time of the
hearing.
(6) The minor is eligible for probation pursuant to Section
1203.06 of the Penal Code.
(7) The offense charged is not rape, sodomy, oral copulation, or
an act of sexual penetration specified in Section 289 of the Penal
Code when the victim was prevented from resisting due to being
rendered unconscious by any intoxicating, anesthetizing, or
controlled substance, or when the victim was at the time incapable,
because of mental disorder or developmental or physical disability,
of giving consent, and that was known or reasonably should have been
known to the minor at the time of the offense.
(b) The prosecuting attorney shall review his or her file to
determine whether or not paragraphs (1) to (6),
( 7), inclusive, of subdivision (a) apply. If
the minor is found eligible for deferred entry of judgment, the
prosecuting attorney shall file a declaration in writing with the
court or state for the record the grounds upon which the
determination is based, and shall make this information available to
the minor and his or her attorney. Upon a finding that the minor is
also suitable for deferred entry of judgment and would benefit from
education, treatment, and rehabilitation efforts, the court may grant
deferred entry of judgment. Under this procedure, the court may set
the hearing for deferred entry of judgment at the initial appearance
under Section 657. The court shall make findings on the record that a
minor is appropriate for deferred entry of judgment pursuant to this
article in any case where deferred entry of judgment is granted.
SEC. 5. SEC. 6. 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.