BILL NUMBER: SB 838 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 18, 2014
AMENDED IN ASSEMBLY JULY 2, 2014
AMENDED IN SENATE MAY 27, 2014
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)
(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, 730, and 790 of the Welfare and
Institutions Code, relating to crimes.
juveniles.
LEGISLATIVE COUNSEL'S DIGEST
SB 838, as amended, Beall. Crimes: Sex offenses: juvenile
hearings. Juveniles: sex offenses.
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 specified sex offenses, who, with the intent to intimidate,
harass, humiliate, or bully the victim, uses social media, including,
but not limited to, posting photographs online or sharing cellular
telephone photographs 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.
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 a minor to complete a sex offender
treatment program when a minor is adjudged or continued as a ward of
the court for the commission of specified sex offenses , if the
court determines, in consultation with the county probation officer,
that suitable programs are available . The bill would require
the court to consider certain factors, in addition to any other
relevant information presented, in determining what type of sex
offender treatment program is appropriate for the minor. The
bill would require a minor completing a sex offender treatment
program to pay all or a portion of the reasonable costs of the
program, as specified. By increasing the duties on county
officials in implementing the treatment program requirement, this
bill would impose a state-mandated local program.
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 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.
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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
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 a sex offense listed in
subdivision (c) of Section 290 who, with the intent to intimidate,
harass, humiliate, or bully the victim, uses social media, including,
but not limited to, posting photographs online or sharing cellular
telephone photographs 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 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. SEC. 2. 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.
(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 of the Penal Code, 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. SEC. 3. 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 or continued as 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, the
court shall order the minor shall
to complete a sex offender treatment program , if the
court determines, in consultation with the county probation officer,
that suitable programs are available . In determining what type
of treatment is appropriate, the court shall consider all of the
following: the seriousness and circumstances of the offense, the
vulnerability of the victim, the minor's criminal history and prior
attempts at rehabilitation, the sophistication of the minor, the
threat to public safety, the minor's likelihood of reoffending, and
any other relevant information presented. If ordered by the
court to complete a sex offender treatment program, the minor shall
pay all or a portion of the reasonable costs of the sex offender
treatment program after a determination is made of the ability of the
minor to pay.
SEC. 5. SEC. 4. 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 Department of Corrections and Rehabilitation, 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 (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. 6. 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. 5. If the Commission on State Mandates
determines that this act contains 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.