Amended  IN  Senate  March 30, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 805

Introduced by Senator Galgiani

February 17, 2017

An act to amend Section 264 of the Penal Code, relating to rape. An act to amend Section 48915 of the Education Code, relating to pupil discipline.


LEGISLATIVE COUNSEL'S DIGEST


SB 805, as amended, Galgiani. Rape. Pupil discipline: suspensions and expulsions: assault or battery.
Existing law prohibits a pupil from being suspended from school or recommended for expulsion, unless the superintendent of the school district or the principal of the school in which the pupil is enrolled determines that the pupil has committed a specified act. With respect to certain acts, including, among others, assault or battery upon any school employee, the principal or superintendent has the discretion to recommend expulsion or an alternative means of correction. With respect to certain other acts, the principal or superintendent is required to immediately suspend and recommend expulsion of a pupil who he or she determines has committed that act.
This bill would delete the act of assault or battery upon any school employee from the category of acts where the principal or superintendent has the discretion to recommend expulsion or an alternative means of correction. The bill would expand the act of assault or battery upon any school employee to include assault or battery upon a staff member contracted to provide services to pupils and would place that expanded act in the category of acts for which immediate suspension and a recommendation of expulsion is required. By imposing additional duties on schools and school districts, the bill would impose a state-mandated local program.
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 the statutory provisions noted above.

Existing law specifying various circumstances that constitute the crime of rape, including an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator where sexual intercourse 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. Existing law generally provides that rape, as defined, is punishable by imprisonment in the state prison for 3, 6, or 8 years, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

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


SECTION 1.

 Section 48915 of the Education Code is amended to read:

48915.
 (a) (1) Except as provided in subdivisions (c) and (e), the principal or the superintendent of schools shall recommend the expulsion of a pupil for any of the following acts committed at school or at a school activity off school grounds, unless the principal or superintendent determines that expulsion should not be recommended under the circumstances or that an alternative means of correction would address the conduct:
(A) Causing serious physical injury to another person, except in self-defense.
(B) Possession of any knife or other dangerous object of no reasonable use to the pupil.
(C) Unlawful possession of any controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code, except for either of the following:
(i) The first offense for the possession of not more than one avoirdupois ounce of marijuana, other than concentrated cannabis.
(ii) The possession of over-the-counter medication for use by the pupil for medical purposes or medication prescribed for the pupil by a physician.
(D) Robbery or extortion.

(E)Assault or battery, as defined in Sections 240 and 242 of the Penal Code, upon any school employee.

(2) If the principal or the superintendent of schools makes a determination as described in paragraph (1), he or she is encouraged to do so as quickly as possible to ensure that the pupil does not lose instructional time.
(b) Upon recommendation by the principal or the superintendent of schools, or by a hearing officer or administrative panel appointed pursuant to subdivision (d) of Section 48918, the governing board of a school district may order a pupil expelled upon finding that the pupil committed an act listed in paragraph (1) of subdivision (a) or in subdivision (a), (b), (c), (d), or (e) of Section 48900. A decision to expel a pupil for any of those acts shall be based on a finding of one or both of the following:
(1) Other means of correction are not feasible or have repeatedly failed to bring about proper conduct.
(2) Due to the nature of the act, the presence of the pupil causes a continuing danger to the physical safety of the pupil or others.
(c) The principal or superintendent of schools shall immediately suspend, pursuant to Section 48911, and shall recommend expulsion of a pupil that he or she determines has committed any of the following acts at school or at a school activity off school grounds:
(1) Possessing, selling, or otherwise furnishing a firearm. This subdivision does not apply to an act of possessing a firearm if the pupil had obtained prior written permission to possess the firearm from a certificated school employee, which is concurred in by the principal or the designee of the principal. This subdivision applies to an act of possessing a firearm only if the possession is verified by an employee of a school district. The act of possessing an imitation firearm, as defined in subdivision (m) of Section 48900, is not an offense for which suspension or expulsion is mandatory pursuant to this subdivision and subdivision (d), but it is an offense for which suspension, or expulsion pursuant to subdivision (e), may be imposed.
(2) Brandishing a knife at another person.
(3) Unlawfully selling a controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code.
(4) Committing or attempting to commit a sexual assault as defined in subdivision (n) of Section 48900 or committing a sexual battery as defined in subdivision (n) of Section 48900.
(5) Possession of an explosive.
(6) Assault or battery, as defined in Sections 240 and 242 of the Penal Code, upon any school employee or a staff member contracted to provide services to pupils.
(d) The governing board of a school district shall order a pupil expelled upon finding that the pupil committed an act listed in subdivision (c), and shall refer that pupil to a program of study that meets all of the following conditions:
(1) Is appropriately prepared to accommodate pupils who exhibit discipline problems.
(2) Is not provided at a comprehensive middle, junior, or senior high school, or at any elementary school.
(3) Is not housed at the schoolsite attended by the pupil at the time of suspension.
(e) Upon recommendation by the principal or the superintendent of schools, or by a hearing officer or administrative panel appointed pursuant to subdivision (d) of Section 48918, the governing board of a school district may order a pupil expelled upon finding that the pupil, at school or at a school activity off of school grounds violated subdivision (f), (g), (h), (i), (j), (k), (l), or (m) of Section 48900, or Section 48900.2, 48900.3, or 48900.4, and either of the following:
(1) That other means of correction are not feasible or have repeatedly failed to bring about proper conduct.
(2) That due to the nature of the violation, the presence of the pupil causes a continuing danger to the physical safety of the pupil or others.
(f) The governing board of a school district shall refer a pupil who has been expelled pursuant to subdivision (b) or (e) to a program of study that meets all of the conditions specified in subdivision (d). Notwithstanding this subdivision, with respect to a pupil expelled pursuant to subdivision (e), if the county superintendent of schools certifies that an alternative program of study is not available at a site away from a comprehensive middle, junior, or senior high school, or an elementary school, and that the only option for placement is at another comprehensive middle, junior, or senior high school, or another elementary school, the pupil may be referred to a program of study that is provided at a comprehensive middle, junior, or senior high school, or at an elementary school.
(g) As used in this section, “knife” means any dirk, dagger, or other weapon with a fixed, sharpened blade fitted primarily for stabbing, a weapon with a blade fitted primarily for stabbing, a weapon with a blade longer than 31/2 inches, a folding knife with a blade that locks into place, or a razor with an unguarded blade.
(h) As used in this section, the term “explosive” means “destructive device” as described in Section 921 of Title 18 of the United States Code.

SEC. 2.

 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.
SECTION 1.Section 264 of the Penal Code is amended to read:
264.

(a)Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.

(b)In addition to any punishment imposed under this section the judge may assess a fine not to exceed seventy dollars ($70) against a person who violates Section 261 or 262, 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.

(c)(1)A person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years.

(2)A person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.

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